Kal Contracting Co., Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1987

284 N.L.R.B. 722 (N.L.R.B. 1987)

722 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
KAL Contracting Co., Inc. and Local No. 247,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Cases 7-CA-25417(1) and 7-CA-25417(2)
30 June 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND CRACRAFT
On 6 November 1986 Administrative Law Judge
Lowell Goerlich issued the attached decision. The
Respondent filed exceptions and a supporting
brief,' and the General Counsel filed cross-excep-
tions and a supporting brief.
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings, findings, 2 and
The Respondent has requested oral argument The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties.
2 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
The Respondent has excepted to the judge's finding that James Griffin
was its agent and imputing his statements to it. We agree with the judge
The record makes clear that both management and employees regarded
James Griffin as an agent of the management at the Southfield facility
where employees had quite infrequent contact with admitted supervisors.
The superintendent of operations admitted that he would tell James Grif-
fin of management decisions about what employees should do and he ex-
pected his Instructions to be carried out. The credited evidence shows
that the company president also instructed James Griffin to inform em-
ployees of and to carry out his labor relations directives. Further, al-
though James Griffin was not alleged to be a supervisor, it is clear that
he exercised, and employees were aware of his exercise of, independent
judgment to determine when employees should start and end the work-
day
Regarding the discharge of Utley, we note that the superintendent of
operations was present at the beginning of the short telephone conversa-
tion in which James Griffin ordered Utley to "come in and clean your
truck out, get your stuff out" In the circumstances of the conversation
and the Respondent's later conduct as found by the judge, it is clear that
either James Griffin was specifically directed to discharge Utley or the
Respondent condoned his termination of Utley in its behalf We agree
with the judge that the conduct for which Utley was discharged was
protected concerted activity under Meyers Industries, 268 NLRB 493
(1984), remanded sub nom Frill v NLRB, 755 F.2d 941 (D C. Ctr 1985),
cert. denied 474 U.S. 948 (1985), reaffirmed 281 NLRB 882 (1986), and
therefore find it unnecessary to rely on Dren Krump Mfg. v. NLRB,
544 F 2d 320 (7th Cir. 1976), cited by the judge.
The Respondent asserted that a bargaining order is inappropriate be-
cause it lost the hauling contract at the Southfield Relay station and that
the Southfield bargaining unit no longer exists Even assuming the truth
of the Respondent's assertion, for which no evidence was offered, the
Respondent still had an obligation to bargain over the effects of the clo-
sure, a "condition of employment" entailed within the bargaining order
First National Maintenance Corp. v. NLRB, 452 U.S 666, 681 (1981),
Vitek Electronics a NLRB, 763 F.2d 561 (3d Cu 1985)
284 NLRB No. 84
conclusions, to modify his remedy, 3 and to adopt
the recommended Order as modified.4
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, KAL Contracting Co., Inc., Detroit,
Michigan, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
Delete all but the first sentence from paragraph
2(f).
3 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), Interest will be computed at the "short-term Fed-
eral rate" for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S.C. § 6621
4 In the circumstances of this case we do not find the inclusion of a
visnatorial clause necessary and will delete it from the recommended
Order.
John Ciaramitara, Esq., for the General Counsel.
Aubrey McCutcheon, Jr., Esq., of Detroit, Michigan, for
the Respondent.
John Calandra, of Detroit, Michigan, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Administrative Law Judge. The
original charge in Case 7-CA-25417(1) filed on 21 Janu-
ary 1986 by Local No. 247, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (the Union) was served on KAL Contracting
Co., Inc. (the Respondent) 21 January 1986 by certified
mail and on 5 February 1983 by hand. The original
charge in Case 7-CA-25417(2) filed on 5 February 1986
was hand delivered to the Respondent on 5 February
1986 and served by certified mail about the same date.
In the complaint as amended' it was alleged that the
Respondent had violated Section 8(a)(1), (3), and (5) of
the National Labor Relations Act (the Act).
The Respondent filed a timely answer denying that it
had engaged in the unfair labor practices alleged.
This matter came on for hearing on 2 June and 9 and
10 July at Detroit, Michigan. Each party was afforded a
full opportunity to be heard, to call, examine, and cross-
examine witnesses, to argue orally on the record, to
submit proposed findings of fact and conclusions, and to
file briefs. All briefs have been carefully considered.
On the entire record in this case and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing
An amendment was allowed at the hearing
KAL CONTRACTING CO. 723
FINDINGS OF FACT, CONCLUSIONS, AND REASONS
THEREFOR
I. BUSINESS OF THE RESPONDENT
The Respondent is, and has been at all times material,
a corporation duly organized under and existing by
virtue of the laws of the State of Michigan.
At all times material the Respondent has maintained its
principal office and place of business at 11000 West
McNichols, Suite 220, Detroit, and Michigan (the De-
troit office). The Respondent maintains jobsites in De-
troit and Rockwood, in the State of Michigan. The Re-
spondent is, and has been at all times material, engaged
in the trucking business, hauling refuse and sludge pursu-
ant to contracts with city governments. The Respond-
ent's operation at and out of Detroit's Southfield Relay
Station, located in Detroit, Michigan, is the only oper-
ation involved in this proceeding.
During the calendar year ending 31 December 1985,
which period is representative of its operations at all
times material, the Respondent had gross revenues in
excess of $500,000. During the same period of time the
Respondent provided services valued in excess of
$50,000 for Detroit, Michigan. Detroit is directly en-
gaged in commerce when during the same times it pur-
chased goods, materials, equipment, and supplies valued
in excess of $50,000 from suppliers located outside the
State of Michigan and had the goods, materials, equip-
ment, and supplies shipped directly to its various facili-
ties located in Detroit, Michigan,
The Respondent is now, and has been at all times ma-
terial, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material, a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
It is admitted by the Respondent that at all times mate-
rial Jervis Lovelace and Charles Griffin were respective-
ly the Respondent's president and superintendent.
The Southfield Relay Station, where the Respondent
operates, is a rubbish relay station where the city of De-
troit dumps rubbish. Pursuant to a contract with the city
of Detroit, the Respondent by truck hauls the rubbish
from the dump to a landfill where it is unloaded. The
rubbish is first dumped by the city of Detroit employees
into a pit or hole at the Relay Station where it is then
loaded on trailers that are hauled out of the pit by trac-
tor, transferred to another tractor, and then conveyed to
the landfill. Certain of the Respondent's employees pull
the loaded trailers out of the pit and return the empty
trailers to the pit; 2 other employees pull the trailers to
and from the landfill.
2 These employees sometimes m the record are referred to as the "pit
men" or utilitymen.
Jerry Weigand, a trucking company, held the contract
with the city of Detroit for the hauling of rubbish from
the Southfield Relay Station until the Respondent ob-
tained the contract around December 1985. Some of the
Respondent's employees had worked for Jerry Weigand.
Prior to their employment by the Respondent in No-
vember 1985 Lovelace spoke to the Respondent's pro-
spective employees. Charles Griffin was also present. Lo-
velace outlined the conditions of employment. Among
other things he said he would guarantee the employees
40 hours of work a week, a Blue Cross/Blue Shield
health plan, and paid holidays. Lovelace was asked
whether they would "go union." Lovelace answered that
"he would rather not." Jerry Weigand had a contract
with the Union.
Paul Thompson, a prospective employee, commented,
"Mf you are going to give us everything that the union
was giving us. So why go union and save the $20.00 a
month."
Shortly after the Respondent started operations at the
Relay Station, employees commenced lodging com-
plaints. About a week before Christmas, Merle James
May complained to Charles and James Griffm, 2 who
were brothers, that Lovelace's 40-hour guarantee had
not been fulfilled. Paul Thompson, Charles Utley, Robert
Johnson, Atwood Brown, and Larry Brown were
present at this confrontation. Employee Thompson also
complained to Charles Griffin about the reneging on the
40-hour-a-week guarantee. In the presence of May,
Larry Brown, and other drivers, Thompson asked Lover
lace about the 40-hour guarantee. Lovelace responded,
"[IN you do not like it, I can pay you right now. . . . if
you are not happy here . . . I will pay you now, figure
your time out." In the first week after the new year
Thompson again accosted Lovelace. This time he asked
about the holiday pay the employees did not receive. Lo-
velace responded that he would not pay the holiday pay.
Additionally, employees who had received checks on 3
January 1986 had trouble getting them cashed. At "Lo-
velace's bank," May was told that there were "insuffi-
cient funds." On 3 January 1986 Charles Vern Utley,
among other employees including James Griffin, said
that if employees "are going to be treated this way we
might as well go union." James Griffin testified that he
told his brother Charles that employees had been discuss-
ing the Union.
The employees continued to discuss the Union. James
Griffin stated that he was "for it." The employees
wanted "to do something [about] the way the man was
doing us." Thompson contacted the Union on 8 or 9 Jan-
uary. Thereafter three employees met John Calandra,
president of the Union, at the union offices on the fol-
lowing Saturday, 11 January 1986. Thompson and May
were given union authorization cards, which they signed
at once. Thompson was also given additional blank au-
thorization cards that he gave to the other drivers the
following Monday. Eight drivers signed cards. 4 Thomp-
3 James Griffin was also known as "Shorty."
4 The General Counsel offered eight union authorization cards of the
Respondent's employees, all of which were received in evidence and are
found valid for establishing a majority status.
724 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
son returned the union authorization cards to the union
hall on 13 January 1986.
Kenneth Lawrence Hollowell, vice president and busi-
ness representative of the Union, delivered a recognition
agreement to the office of the Respondent on 17 January
1986. Lovelace was not in; thus Hollowell wrote him a
note as follows: "Local 247 represents your employees at
the Southfield Relay. I am hereby requesting that you
voluntarily recognize us as such by signing this recogni-
tion agreement and thereafter negotiating a contract with
us. I need your decision by noon on Monday." Although
Hollowell made subsequent requests, the Respondent did
not recognize the Union.
Around 20 January 1986 Thompson reported to the
Union that James Griffin said to him that "Boss Hog5
said if you want a union . . . you are not working
here." Hollowell, who took Thompson's message, said
that he would meet Thompson at the Relay Station the
next morning. The next morning, 21 January 1986,
Hollowell arrived "about 7 a.m." accompanied by five
union staff members.
A. The Events of 21 January 1986
At the Respondent's Southfield Relay Station site the
Respondent used an unmanned trailer with a telephone
as an office. At the time the union representatives ar-
rived at the site on the morning of 21 January 1986 the
Respondent's employees were in the trailer. Hollowell
and Calandra entered the trailer and asked for Lovelace,
who was not present. The union representatives had
parked their six cars inside the "city yard," some of
which cars were obstructing the movement of the Re-
spondent's trucks.
Hollowell testified that he showed up with five repre-
sentatives7 because he thought he might need pickets for
an informational picket line and because "it was early in
the morning and at that time of morning [he did] not
make a practice of going too many places by myself."
James Griffin called Lovelace, as related by James
Griffin, "I called him and told him that the Union men
was [sic] out here and they had the trucks blocked, we
can't go to work. He told me he would be there in a few
minutes."
Lovelace appeared shortly before 8 a.m. in an automo-
bile. Hollowell approached him, introduced himself,
handed him a business card, and asked him whether he
wanted to recognize the,Union. Calandra, who was well
known to Lovelace, also approached. Addressing Calan-
dra, Lovelace said that he was not going to recognize
the Union. As related/by Hollowell, Lovelace "told him
something to the effebt that if they 'wanted to be in the
union they had to stay out . . . of his mother fuckin
trucks." On being asked if it were proved that the em-
ployees wanted a union, he would recognize the Union,
Lovelace answered in the affirmative. The authorization
cards were then liven to Lovelace. Lovelace examined
5 "Boss Hog" referred to Lovelace.
6 Hollowell remembered that Thompson had said, "Rif they continue
with the union business that he would have seven drivers to replace on
the following morning."
7 These five union representatives consisted of two business representa-
tives, a trustee, a vice president, and the president of the Union.
the cards and then called James Griffin whom he in-
structed to poll the employees in the trailer to ascertain
whether they wanted a union. For this purpose James
Griffin used a yellow piece of paper, legal pad size.
James Griffin called the employees into the trailer and
said, "[AP you people who want to belong to the union
sign this paper." James Griffin then returned to Love-
lace with four names on the yellow sheet (Paul Thomp-
son, Randy Sims, Merle James May, and Robert John-
son). Lovelace asked whether these were the only em-
ployees who wanted the Union. James Griffin answered
that they were the only ones who "signed." Lovelace re-
marked that the employees did not want to be in the
Union whereupon Hollowell asked for the return of the
union authorization cards. At first Lovelace refused to
return the cards but did return the cards of Thompson,
Johnson, May, and Sims. Lovelace then asked James
Griffin whether he had signed. James Griffin answered,
"yes," but he had changed his mind. Hollowell asked for
the remaining cards, which at first Lovelace refused to
surrender. Finally he returned them, after he had torn
them in half. At this point he announced loudly, that
"anybody who wants to be in the union stay out of my
mother fucldn trucks and the rest of you go to work."
Lovelace called to employee Lawrence Brown and told
him to get in the truck and run over Hollowell's automo-
bile. Hollowell paused to transcribe some notes and then
called Business Agent Tom Curry over to his car and,
after giving him the notes, instructed him to take the
four employees mentioned above to the National Labor
Relations Board and file charges. This was done.
Hollowell thereafter moved his car and assembled the
union representatives, and commenced an informational
picket line with picket signs reading "KAL Contracting
unfair, Teamsters Local 247." When the four employees
returned from the Board's office they joined the picket
line.
Shortly after Thompson left the trailer James Griffin
said to him, "[I]f you want the union you are not to get
into the trucks." Sims and Johnson were close enough to
have heard this remark.9
B. Employee Utley's Severance from Employment
Charles Vern Utley started work as a truckdriver on 2
December 1985. He had worked for Jerry Weigand. He
was with the group of employees when Thompson asked
Lovelace why the employees were not receiving the 40-
hour-a-week guarantee.
On 3 January 1986 the employees neither received the
40-hour-a-week guarantee nor holiday pay. This matter
was discussed in the trailer by a number of employees.
Bringing in the Union was considered. Utley said, "[I]f /
8 James Griffin testified he said, "[Tifle one with the Union sign the
paper."
9 May remembered that James Griffin said, "[T]he boss said do not get
in my trucks if you want the union' Suns remembered that James Griffin
said, "Boss Hog said all you .. that want the union, or signed for the
union, do not get in his trucks." James Griffin denied the foregoing testi-
mony but testified that he said, "[Thu cannot drive a truck and walk a
picket line" James Griffin's denial is not credited. Having carefully ob-
served his demeanor and carefully reviewed his testimony I do not deem
him a believable witness as to the critical matters.
KAL CONTRACTING CO. 725
he is going to keep screwin[g] us we might as well go
ahead and get the union here to protect us." James Grif-
fin was present when Utley made this comment.
That night Utley was informed by an employee that
his paycheck had bounced. After discussing this event,
Utley and the other employee decided to look for differ-
ent jobs on Saturday. Since Utley was scheduled to work
on Saturday, he "had" his wife call "in sick" for him and
also on the following Monday. On Monday night Utley
called and talked with James Griffin to determine what
time he should come in for work on Tuesday, 6 January
1986. James Griffin advised Utley to appear about 9:30
a.m. because Lovelace wanted to speak to him Utley re-
plied, "[F]ine, I want to talk to him about him screwing
us on our checks." James Griffin replied, "[I]f you have
that kind of attitude then just come in and clean your
truck out, get your stuff out." Utley appeared at the
Relay Station at 8:30 the next morning. "[T]hey already
had the stuff out of [his] truck." Utley was told to wait
until 9 a.m. to see Lovelace. Utley waited until 10 a.m.
but Lovelace did not appear; Utley left.
Utley thus describes his encounter with James Griffin
on Tuesday morning; "I was mad at him, so we did not
really say much. He just said you know I do not know
why you have this kind of attitude. The way he put it I
quit, but I did not. He was the one that told me to come
down and clean the stuff out of my truck."
The fact that Utley's "stuff"" had been removed from
his truck is enough to support the conclusion that he was
discharged. The fact that Utley was instructed to wait
until 9 o'clock for Lovelace's appearance indicates that
the incident was known to top management. The fact
that Lovelace did not show indicates that he was satis-
fied with James Griffin's treatment of the matter. The
fact that the Respondent thereafter failed to phone Utley
designating him for a work assignment, as was its prac-
tice, clearly establishes that he was no longer considered
in the employment of the Respondent. His potential pro-
test had been unacceptable for he sought to protest,
among other things, an untenable condition of employ-
ment, the bouncing of paychecks, which had been the
subject of displeasure and protest on the part of other
employees. Utley's remark to James Griffin was related
to group action and was protected by Section 7 of the
Act. 11 The activity of Utley meets the criteria of Meyers
Industries, 268 NLRB 493 (1984).12
" The "stuff' was small handtools and gloves that had been placed in
the office trailer.
" Utley told James Griffin, "I want to talk to him [Lovelace] about
him screwing l us on our checks." (Emphasis added.) Utley's choice of lan-
guage indicated that he mtended to advance the cause of other employ-
ees.
12 In Vought Corp., 273 NLRB 1290, 1294 (1984), concerning the
Meyers case, the Board said.
The Board recently stated it would find an employee's activity
concerted only where it was engaged in with or on behalf of other
employees, and not "solely by and on behalf of the employee him-
self." The Board further stated, "Once the activity is found to be
concerted, an 8(a)(1) violation will be found if, in addition, the em-
ployer knew of the concerted nature of the employee's activity, the
concerted activity was protected by the Act, and the adverse em-
ployment action at issue (e.g., discharge) was motivated by the em-
ployee's protected concerted activity."
Moreover, James Griffin had been present when Utley
had commented that if employees "are going to be treat-
ed this way [trouble cashing checks and nonpayment of
holiday pay] we might as well go union."13
It is clear that an employee, even acting alone, may be
engaged in concerted protected activity as long as the
activity is directed toward mutual aid or protection.
Dreis & Krump Mfg. Co. v. NLRB, 544 F.2d 320 (7th Cir.
1976).
Thus, I conclude that Utley was discharged for engag-
ing in protected concerted activities and, by his dis-
charge, the Respondent violated Section 8(a)(1) of the
Act. This conclusion conforms with the language of the
Supreme Court in the case of NLRB v. City Disposal Sys-
tems, 465 U.S. 822, 830, 835 (1984):
The term "concerted activit[y]" is not defined in
the Act but it clearly enough embraces the activities
of employees . . . in order to achieve common
goals. See, e.g., Meyers Industries, Inc., 268 NLRB
No. 73, at 3 (1984).
Against this background, it is evident that, in en-
acting § 7 of the NLRA, Congress sought generally
to equalize the bargaining power of the employee
with that of his employer by allowing employees to
band together in confronting an employer regarding
the terms and conditions of employment. There is
no indication that Congress intended to limit this
protection to situations in which an employee's ac-
tivity and that of his fellow employees combine
with another in any particular way.
C. The Discharges of Thompson, May, Johnson, and
Sims
Lovelace shouted, "[A]nybody who wants to be in the
union stay out of my mother fuckin trucks and the rest
of you go to work."" James Griffin said, "[I]f you want
the union you are not to get into the trucks." Having
been so advised, Thompson, May, Johnson, and Sims did
not go to work but went to the Board's Regional Office
to file charges.
It is obvious that the condition that Lovelace set for
these employees' continued employment with the Re-
spondent was unlawful. "We have long held that to con-
dition employment upon the abandonment by employees
of the rights guaranteed them by the Act is equivalent to
discharging them outright for union activity." Block-
Southland Sportswear, 170 NLRB 936, 938 (1968). See
also Mason Industries, 212 NLRB 505 (1974); Advance
Electric, 268 NLRB 1001 (1984); and JO-Vin Dress Co.,
279 NLRB 525 (1986).
Thus by constructively discharging Paul ThOmpson,
Randy Sims, Merle James May, and Robert Johnson on
13 There seems little doubt that Utley's discharge tended to quell the
employees' union efforts and put a damper on the employees' complaints
about broken pronuses.
"This testimony was uncontradicted.
726 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 January 1986 the Respondent violated Section 8(a)(3)
and (1) of the Act."
D. James Griffin's Status
Superintendent Charles Griffm supervises all of the
Respondent's operations including the Southfield Relay
Station. He testified, "We have three or four jobs going;
I go by this one 5 minutes, that one 5 minutes. I go
around to each one once or twice a day." Charles Griffin
supervises about 65 employees. Charles Griffin is at
Southfield Relay Station "[m]aybe twice, three times,
whenever I get a chance to go by there."
According to Charles Griffin, Ernie Selbee or James
Griffin informs employees if and when to come in for
work. Charles Griffin testified, "I would leave him
[James Griffin] more in charge of . . . thing[s]." James
Griffin was the Respondent's best employee at the
Southfield Relay Station. Moreover, according to
Charles Griffin, James Griffin is the kind of person "that
does things without being told." Charles Griffin gives
James Griffin instructions to be passed on to other em-
ployees.
James Griffin testified that he finds out what he is to
do each day from Charles Griffin or Lovelace. "[I]f I
can't get in touch with one of them I will take it on my
own and go fa the truck or do what I can to get it back
to the yard." James Griffin earns no more than other em-
ployees.
Thompson testified that James Griffin told him when
to start work. Thompson testified, "[H]e was the one
that was giving me orders when I worked there. He was
the one that told me what to do. What time to start. In
most cases he run the endloader to pickup [sic] the
excess refuse in the pit. To me I would call him boss
. . . [H]e was the only one that ever told me what to do.
So I took it for granted he was on supervision."
While it appears that James Griffin did exercise some
of the functions of a supervisor, it is clear that he acted
as an agent of the Respondent. In this respect he con-
ducted a poll of the employees' union sympathies at the
direction of Lovelace and for the Respondent. He ad-
vised employees that if they were for the Union they
could not man the Respondent's trucks. Moreover, the
employees looked on James Griffin as a boss." By
reason of these activities on the part of James Griffin,
employees could reasonably believe that James Griffm
was speaking and acting for the Respondent. "[A]n em-
ployer is properly held responsible for anyone acting as
its agent when employees could reasonably believe that
the agent was speaking for the employer." NLRB v.
International Medication Systems, 640 F.2d 1110 (9th Cir.
1981). See also Idaho Falls Consolidated Hospitals v.
NLRB, 731 F.2d 1384 (9th Cir. 1984). In the case of
NLRB v. Dayton Motels, 474 F.2d 328, 331 (6th Cir.
1973), the court pointed out:
16 I find no credible evidence that the above-named employees ap-
peared at the Respondent's establishment to picket rather than to work as
contended by the Respondent
16 "An employee who technically may not satisfy the statutory criteria
of Section 2(11) nevertheless may be accorded supervisory status when
he is perceived to be a supervisor by other employees" NLRB v. Chicago
Metallic Corp., 794 F.2d 527, 532 (9th Qr. 1986)
If there is a connection between management and
the employee's actions, either by way of instigation,
direction, approval, or at the very least acquies-
cence, then the acts of the employee will be imput-
ed to the Company. Boyle 's Famous Corned Beef Co.
v. NLRB, 400 F.2d 154 (8th Cir. 1968).
Thus the statements of James Griffin are imputed to
the Respondent.
E. The Respondent's Polling of its Employees
As noted above Lovelace first agreed to recognize the
Union on a card check. However, when he discovered
that a majority of the Respondent's employees had
signed authorization cards for the Union, he reneged and
conducted his own poll by instructing James Griffin to
obtain the signatures on a sheet of paper of those em-
ployees who wanted the Union. In conducting this non-
secret poll the Respondent violated Section 8(a)(1) of the
Act in that it did not satisfy the criteria of Struksnes Con-
struction Co., 165 NLRB 1062, 1063 (1967):
Absent unusual circumstances, the polling of em-
ployees by an employer will be violative of Section
8(a)(1) of the Act unless the following safeguards
are observed: (1) the purpose of the poll is to deter-
mine the truth of a union's claim of majority, (2)
this purpose is communicated to the employees, (3)
assurances against reprisal are given, (4) the em-
ployees are polled by secret ballot, and (5) the em-
ployer has not engaged in unfair labor practices or
otherwise created a coercive atmosphere.
F. The Appropriate Unit
The parties had no difficulty in agreeing which em-
ployees should be included on the voting list of eligible
voters17 on the critical dates. However, the Respondent
objected to the General Counsel's use of the term "pit
crew employees" in the alleged appropriate unit. Since
"pit crew employees" has been well defined in the
record as meaning those employees of the Respondent
who do not drive trucks to and from the dump but who
work in the hole or pit and/or convey trailers to and
from the pit, the alleged description of the unit is accept-
ed as follows:
All drivers and pit crew employees employed by
Respondent at or out of its Southfield Relay Station
operation; but excluding all office clerical employ-
ees, guards and supervisors as defined in the Act.
G. Gissells Considerations
The General Counsel has demonstrated that on 21 Jan-
uary 1986, an uncoerced majority of the Respondent's
employees in an appropriate unit had selected the Union
as their collective-bargaining agent. Moreover, the Re-
spondent examined proof of the Union's majority status
17 These employees were Paul Thompson, Merle James May, Randy
Sims, Robert Johnson, Lawrence Brown, Atwood Brown, Ernest Selba,
David Lutiens, and James Griffin.
18 NLRB a Gtssel Packing Co., 395 U.S. 575 (1969).
KAL CONTRACTING CO. 727
and raised no objection to its authenticity although the
Respondent did renege on its agreement to be bound by
the card check.
Thus, if the Respondent's misconduct tended to pre-
clude a fair election, Gissel became applicable.
Here the Respondent has committed what has been re-
ferred to as "hallmark" violations.19
Not only did the Respondent threaten its employees
with discharge unless they abandoned the Union but it
constructively discharged the four employees who stuck
with the Union. Additionally, the Respondent coercively
polled its employees with respect to their union sympa-
thies and mutilated some of the union authorization
cards. Such misconduct was egregious in character,"
has a lingering coercive effect, and is not of the kind that
may be easily banished from employees' memories by a
statement, "We won't do it again" or by other traditional
Board remedies. There is a substantive danger here that
employees will be inhibited by the Employer's miscon-
duct from adhering to the Union rendering a likelihood
that an election will not reflect the uncoerced preference
of employees for or against a union. There are no miti-
gating circumstances here. The discharges for union af-
fection will no doubt have a lasting inhibitive effect on a
significant portion of the work force, thus destroying fair
election conditions. 21 Moreover, these unfair labor prac-
tices were committed by the highest authority of the Re-
spondent, Lovelace, or by his specific directions. Such
circumstances demonstrated to the Respondent's employ-
ees the seriousness of the Respondent's expressed intent
to treat employees as persona non grata if they adhere to
the Union. The Respondent's misconduct was serious
and pervasive. See Well-Bred Loaf Inc., 280 NLRB 306
(1986).
All of the above support the conclusion that "the pos-
sibility of erasing the effect of past practices and of en-
suring a fair election (or a fair rerun) by the use of tradi-
tional remedies, though present, is slight and that em-
ployee sentiment once expressed through cards would,
on balance, be better protected by a bargaining order."
Gissel, 395 U.S. at 614-615.
Accordingly, I conclude that the Union's designation
as a collective-bargaining representative by a majority of
the employees having signed authorization cards pro-
vides a more reliable test of employee representation de-
sires than would an election."
H. Other Alleged 8(a)(1) Violations
The Respondent committed violations of Section
8(a)(1) of the Act by James Griffin's statement to
Thompson around 17 January 1986 that "Boss Hog said
if you want a union. . . you are not working here. . .
29 "Threats of discharge . are hallmark violations." NLRB v.
Balsam Village Management Co., 792 F.2d 29, 33-34 (2d Qr. 1986)
20 Cf. Vinyl-Fab Industries, 265 NLRB 1097 (1982).
Si See J. Coty Messenger Service, 272 NLRB 268 (1984).
22 The General Counsel further urges that there is an additional basis
for a bargaining order in that the Respondent agreed to be bound by a
card check, accepted and examined the authorization cards, and did not
claim that any of the cards were in any way defective, citing Snow &
Sons, 134 NLRB 709 (1961), and other cases Because I have found that
Gissel is applicable, it is unnecessary to pass on this point.
[D]o not bother to come in Tuesday if you want a
union." Lovelace's announcement on 21 January 1986
that "anybody who wants to be in the union stay out of
my mother fuckin trucks and the rest of you go to
work"; by James Griffin's statement to employees on 21
January 1986, "if you want the union you are not to get
into the trucks"; and by James Griffin's statement to em-
ployees in April or March 1986 that they "can go back
to work if [they] drop[ped] charges."
The foregoing statements interfered with, restrained,
and coerced employees in the rights guaranteed them by
Section 7 of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act, and it will effectuate the purposes of the Act to
exercise jurisdiction.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing em-
ployees in the exercise of the rights guaranteed them by
Section 7 of the Act, the Respondent has engaged in
unfair practices within the meaning of Section 8(a)(1) of
the Act.
4. By unlawfully discharging Charles Vern Utley on 6
January 1986, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act.
5. By unlawfully constructively discharging Paul
Thompson, Randy Sims, Merle James May, and Robert
Johnson on 21 January 1986 the Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act.
6. All drivers and pit crew employees employed by
the Respondent at or out of its Southfield Relay Station
operation; but excluding all office clerical employees,
guards and supervisors as defmed in the Act, constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
7. Since about 17 January 1986 and at all material
times thereafter, the Union represented a majority of the
employees in the above appropriate unit for the purposes
of collective bargaining within the meaning of Section
9(b) of the Act and the Respondent was on that date,
and has been since, legally obligated to recognize and
bargain with the Union as such.
8. By refusing to recognize and bargain collectively
with the Union in regard to the employees in the appro-
priate unit about 21 January 1986 and thereafter, the Re-
spondent has committed unfair labor practices within the
meaning of Section 8(a)(1) and (5) of the Act.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
It having been found that the Respondent has engaged
in certain unfair labor practices, it is recommended that
it cease and desist therefrom and take certain affirmative
action necessary to effectuate the policies of the Act. It
728 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
also having been found that the Respondent unlawfully
discharged Charles Vern Utley on 6 January 1986 and
Paul Thompson, Randy Sims, Merle James May, and
Robert Johnson on 21 January 1986 and has failed and
refused to reinstate them in violation of the Act, it is rec-
ommended that the Respondent remedy such unlawful
conduct. In accordance with Board policy, it is recom-
mended that the Respondent offer the above-named per-
sons immediate and full reinstatement to their former po-
sitions or, if such positions no longer exist, to substantial-
ly equivalent positions, without prejudice to their seniori-
ty or any other rights and privileges previously enjoyed,
dismissing, if necessary, any employees hired on or since
the date of their discharge to fill the positions, and make
them whole for any loss of earnings they may have suf-
fered by reason of the Respondent's acts herein detailed,
by payment to them of a sum of money equal to the
amount they would have earned from the date of their
unlawful discharge to the date of a valid offer of rein-
statement, less any net interim earnings during such peri-
ods, with interest thereon, to be computed on a quarterly
basis in the manner established by the Board in F. W
Woolworth Co., 90 NLRB 289 (1950), and Florida Steel
Corp., 231 NLRB 651 (1977).
It is also recommended that the Respondent recognize
and bargain with the Union in good faith and embody
any understanding reached in a signed agreement.
In view of the degree of pervasiveness of the unfair'
labor practices, a broad cease-and-desist order shall be
recommended precluding the Respondent from "in any
other manner" interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
In order to assure that the Board can effectively moni-
tor and secure compliance with the Order herein, it is
recommended that the Order include a visitatorial clause
authorizing the Board to engage in discovery under the
Federal Rules of Civil Procedure.
On these fmdings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed23
ORDER
The Respondent, KAL Contracting Co., Inc., Detroit,
Michigan, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain collectively with Local No.
247, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, in the appropri-
ate unit described above in violation of Section 8(a)(5) of
the Act.
(b) Telling employees that they could not work for the
Respondent if they chose the Union.
(c) Advising employees they could come back to work
if they dropped their unfair labor practice charges.
23 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses
(d) Coercively polling employees as to their union
sympathies.
(e) Discouraging union or concerted activities of its
employees or their membership in Local No. 247, Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other labor
organization, by unlawfully and discriminatorily dis-
charging its employees or discriminating against them in
any manner in respect to their hire or tenure of employ-
ment or any term or condition of employment in viola-
tion of Section 8(a)(3) and (1) of the Act.
(0 In any other manner interfering with, restraining,
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
effectuate the policies of the Act.
(a) On request, bargain collectively with Local No.
247, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America as the exclusive
representative of all employees in the aforesaid appropri-
ate unit with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and, if an un-
derstanding is reached, embody the understanding in a
signed agreement.
(b) Offer Charles Vern Utley, Paul Thompson, Randy
Sims, Merle James May, and Robert Johnson immediate
and full reinstatement to their former positions or, if such
positions no longer exist, to substantially equivalent posi-
tions without prejudice to their seniority or any other
rights or privileges previously enjoyed, discharging, if
necessary, any employee hired to replace them and make
them whole for any loss of pay they may have suffered
by reason of the discrimination against them in accord-
ance with the recommendations set forth in the remedy
section of the decision.
(c) Remove from its files any reference to the unlawful
discharges and notify the employees in writing that this
has been done and that the discharges will not be used
against them in any way.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its Detroit, Michigan establishment copies
of the attached notice marked "Appendix." 24 Copies of
the notice, on forms provided by the Regional Director
for Region 7, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
24 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 Nation-
al 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."
KAL CONTRACTING CO. 729
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply. For the purpose of deter-
mining or securing compliance with this Order, the
Board, or any of its duly authorized representatives, may
obtain discovery from the Respondent, its officers,
agents, successors, and assigns, or any other person
having knowledge concerning any compliance matter, in
the manner provided by the Federal Rules of Civil Pro-
cedure. Such discovery shall be conducted under the su-
pervision of the United States court of appeals enforcing
this Order and may be had upon any matter reasonably
related to compliance with this Order, as enforced by the
court
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.
WE WILL NOT discourage union or concerted activities
of our employees or discourage their membership in
Local No. 247, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or
any other labor organization, by unlawfully and discri-
minatorily discharging any of you or discriminating
against you in any manner with respect to your hire or
tenure of employment or any term or condition of em-
ployment in violation of Section 8(a)(1) and (3) of the
National Labor Relations Act.
WE WILL NOT tell you that you cannot work for us if
you choose the Union.
WE WILL NOT advise you that you can come back to
work if you drop your unfair labor practice charges.
WE WILL NOT coercively poll you as to your union
sympathies.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, on request, bargain collectively in good
faith with Local No. 247, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America as the exclusive collective-bargaining represent-
ative of all employees described in the unit below with
respect to your wages, hours, and other terms and condi-
tions of employment and, if an understanding is reached,
WE WILL put it in a written contract that WE WILL sign.
The appropriate unit is:
All drivers and pit crew employees employed by us
at or out of our Southfield Relay Station operation;
but excluding all office clerical employees, guards
and supervisors as defined in the Act.
WE WILL offer Charles Vern Utley, Paul Thompson,
Randy Sims, Merle James May, and Robert Johnson im-
mediate and full reinstatement to their former jobs or, if
such jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority and any other
rights or privileges previously enjoyed and discharge, if
necessary, any employee hired to replace them and WE
WILL make them whole for any loss of earnings and
other benefits resulting from their discharges, less any
net interim earnings, plus interest.
WE WILL notify the above persons that we have re-
moved from our files any reference to their discharges
and that the discharges will not be used against them in
any way.
KAL CONTRACTING CO., INC.