Locust Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 20, 1975

218 N.L.R.B. 717 (N.L.R.B. 1975)

LOCUST INDUSTRIES, INC.
Locust Industries , Inc. and Freight Drivers, and
Helpers Local Union No . 557, affiliated with
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America and
Wayne Owens. Cases 5-CA-811, 5-RC-8999,
and 5-CA-6820
June 20, 1975
DECISION, ORDER, AND
CERTIFICATION OF REPRESENTATIVE
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On January 31, 1975, Administrative Law Judge
Lowell M. Goerlich issued the attached Decision in
this proceeding. Thereafter, the Respondent and the
General Counsel filed exceptions and supporting
briefs, the General Counsel filed a memorandum in
reply to Respondent's exceptions and brief, the
Respondent filed a brief in answer to the General
Counsel's exceptions, and Freight Drivers, as Charg-
ing Party and Petitioner, and Charging Party Owens
filed an answering brief to exceptions filed by the
Respondent.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached 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 as modified
herein.
1. We agree with the Administrative Law Judge
that Respondent violated Section 8(a)(1) of the Act
by the numerous instances of threats and interroga-
tion of employees by its vice president and general
manager, Connor, and by the instance of interroga-
tion by Assistant Operations Manager Turchi.
However, we do not agree with the Administrative
Law Judge's findings that Respondent violated
Section 8(a)(1) by making statements to the effect
that raises scheduled for July 1 could not be given
because Respondent's hands were tied by the
petition having been filed. Such statements were not
alleged as unfair labor practices in the complaint
herein , and at the hearing counsel for the General
Counsel stated that he was not contending they were
unfair labor practices, hence they were not properly
i See Milchent, Inc., 170 NLRB 362 (1968).
2 Whether Zappacosta was keeping a list of those who voted, other than
one sanctioned by the Board , would have been de m:mmis. We note the lack
218 NLRB No. 113
717
litigated as such. In these circumstances, we do not
fmd the alleged conduct violative of Section 8(a)(1).
2. Contrary to the Administrative Law Judge, we
do not find that Respondent violated Section 8(a)(3)
of the Act by discharging employee Wayne Owens
on August 9, 1974. Owens was discharged by
Maintenance Supervisor Harry Gisriel who, as the
Administrative Law Judge found, did not bear the
same "deep seated union animus" as did Respon-
dent's owner, Robert Connor. Gisriel testified that he
alone was responsible for Owens' discharge, and that
he did not discuss the matter with Connor before-
hand. The Administrative Law Judge concluded that
Gisriel "allowed himself (perhaps unwittingly) to be
used by Connor as the instrument for effecting
Owens' discriminatory discharge," that Gisriel would
not have discharged Owens on his own authority,
and that Connor "without a doubt conditioned
Gisriel for the discharge." We regard such conclu-
sions as speculative and unwarranted. As noted
above, Gisriel testified that he discharged Owens on
his own initiative, after Owens failed to comply with
an order to cut a hole in a metal beam for attaching a
chain lift. Moreover, Gisriel testified to, and Owens
acknowledged, several incidents involving Owens
and himself wherein Owens had challenged or
questioned Gisriel's judgment or authority or both.
In view of such evidence, and- the Administrative
Law Judge's fmding that Gisriel did not harbor
antiunion bias, we cannot agree with the Administra-
tive Law Judge that Gisriel's discharge of Owens
violated Section 8(a)(3) of the Act, and we shall
dismiss that allegation of the complaint.
3. Respondent excepts to the Administrative Law
Judge's finding Wayne Owens not to be an agent of
the Petitioner and to the finding that Owens' conduct
in talking with employees outside Respondent's gate,
more than 60 feet from the polling area, on the
morning of the election was not sufficient cause to
set the election aside. It contends that Owens'
conduct violates the Milchem -rule 1 against sustained
conversation by a party with prospective voters in
the vicinity of the polling area. Respondent points to
Owens' having initiated the organizing effort, acting
as chief in-plant spokesman, and finally engaging
prospective voters in conversation-including alleg-
ed misrepresentation of the amount of his salary for
work since his discharge by Respondent-in circum-
stances which gave voters the impression of union
approval because Union Agent Zappacosta was
sitting nearby in his car, making no effort to control
Owens' activity.2 However, even assuming that
of evidence that any employee knew his name was being checked off. We
note also, as found by the Administrative Law Judge , that Respondent was
(Continued)
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Owens was an agent of Petitioner, we agree with the
Administrative Law Judge that the- conduct was
unobjectionable because those with whom Owens
spoke were not in the polling area or in line waiting
to vote, and his remarks would not justify setting the
election aside on other grounds. We therefore affirm
the Administrative Law Judge's result as to the
objection.3
As Petitioner has received a majority of the valid
votes cast, and all other objections have been
overruled,4 we shall certify the Petitioner as the
bargaining representative of the employees in the
appropriate unit.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Locust Industries, Inc., Baltimore, Maryland,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order
as so modified:
1. Delete paragraphs 1(a) and (d) and reletter the
remaining paragraphs accordingly.
2. Delete paragraphs 2(a) and (b) and reletter the
subsequent paragraphs accordingly.
3. Substitute the attached notice for that of the
Administrative Law Judge.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Freight Drivers and
Helpers Local Union No. 557, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, and that,
pursuant to Section 9(a) of the National Labor
Relations Act, as amended, the said labor organiza-
tion is the exclusive representative of all the
employees in the following appropriate unit for the
purposes of collective bargaining in respect to rates
of pay, wages, hours of employment, or other
conditions of employment.
All truck drivers and mechanics, including truck
mechanics, trailer mechanics, and fork lift me-
chanics employed by the Employer at its Balti-
more , Maryland locations at Light Street, Fort
Avenue and Boston Street, but excluding all
office clerical employees, guards and supervisors
as defined in the Act.
also urging employees to vote against the Union on the morning of the
election, at a point farther away from the entrance gate.
MEMBER FANNING, dissenting in part:
I would affirm the Administrative Law Judge in his
finding that Owens' discharge was a violation of
Section 8(a)(3). With- respect to this discriminatory
discharge issue as a whole, the Administrative Law
Judge specifically found that Respondent's owner,
Connor, "was not a credible witness." Thus the
Administrative Law Judge viewed Connor as either
instructing or conditioning Gisriel with respect to the
need for Owens' discharge, despite the admitted
difficulty in finding similarly qualified employees.
The Administrative Law Judge's ultimate conclusion
that it is "preposterous" that mild-mannered Gisriel
would have discharged "on his own authority" an
"excellent mechanic" and known union adherent, at
a time when Respondent was admittedly fording it
difficult to obtain qualified employees, is a fair
inference on this record. In addition, there is
Connor's failure to review the discharge contrary to
his asserted practice, the trifling nature of Owens'
offense, and the permission already granted to keep a
doctor's appointment which interfered with Owens'
burning the hole in the beam at the time in question,
all as found by the Administrative Law Judge. There
is also Connor's threat to Owens, apparently within
the week, that he need not worry "about that brake
job because you won't be here long enough to see
whether it goes bad or not." This was overheard by
employee Evashko, whom the Administrative Law
Judge credited. Strangely enough, the majority
concedes that the threat of discharge was a violation
but not the actual discharge which followed so
closely in a work context that did not justify it. In my
view, the reason assigned for the discharge of this key
employee in the organizational drive was clearly a
pretext. See Davidson Rubber Company, 134 NLRB
57, 64 (1961), enfd. 305 F.2d 166 (C.A. 1, 1962).
3 See Mrlchem, Inc., supra
4 The Board by telegraphic order on November 20, 1974, denied as
lacking in merit the Employer's request for review of the Regional
Director's Supplemental Decision overruling the remaining objections of the
Employer.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties were permitted to
introduce evidence it has been decided that we
discouraged our employees from engaging in con-
certed activities and becoming or remaining mem-
bers of Freight Drivers and Helpers Local Union No.
557, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
LOCUST INDUSTRIES, INC.
of America, or any other labor organization, in
violation of the National Labor Relations Act, as
amended.
WE WILL NOT unlawfully interrogate our
employees as to whether they had any connection
with the representation petition, or how they feel
about the Union, or why they wear union
insignia.
WE WILL NOT unlawfully threaten what we will
"get" our employees because of their union
affection.
WE WILL NOT unlawfully shut our doors if the
Union wins an election.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce any of our
employees in the exercise of the rights granted to
them by Section 7 of the National Labor
Relations Act:
To engage in self-organization
To form, join, or assist unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any and all of these things.
LOCUST INDUSTRIES, INC.
DECISION
STATEMENT OF THE CASE
LOWELL - GoERLICH, Administrative Law Judge: The
charge filed in Case 5-CA-6811 on August 6, 1974, by
Freight Drivers and Helpers Local Union No. 557,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein called the - Union, against Locust Industries, Inc.,
Respondent herein, was served on Respondent by regis-
tered mail on August 7, -1974. A complaint and notice of
hearing was issued on September 11, 1974. The complaint
charged that Respondent engaged in unlawful threats and
interrogations in violation of Section 8(a)(1) of the
National Labor Relations Act, as amended, herein referred
to as the Act.
The charge in Case 5-CA-6820 filed on August 12, 1974,
by Wayne Owens, an individual, against the Respondent
Locust Industries, Inc., was served on Respondent by
registered mail on the same date. A complaint and notice
of hearing was issued on September 11, 1974. The
complaint charged that Respondent had discriminatorily
assigned its employee Owens less desirable working hours
1 The facts found herein are based on the record as a whole and the
observation of the witnesses . The credibility resolutions herein have been
derived from a review of the entire testimonial record and exhibits, with due
regard for the logic of probability , the demeanor of the witnesses , and the
teachings of NLRB. v. Walton Manufacturing Company & Loganville Pants
Company, 369 U.S. 404, 408 (1962). As to those witnesses testifying in
719
on or about July 22, 1974, and wrongfully discharged him
on August 9, 1974, in violation of Section 8(a)(3) of the
Act.
On August 12, 1974, the above cases were consolidated
for hearing.
Respondent filed timely answers denying that it had
engaged in any of the unfair practices alleged.
On June 12, 1974, a petition for an election had been
filed by the Union in Case 5-RC-8999. A direction of
election was issued on July 23, 1974. Thereafter a secret
ballot election was conducted on August 22, 1974. Timely
objections were filed by the employer on August 29, 1974.
On October 25, 1974, the Regional Director for Region 5
issued a supplemental decision, order consolidating cases,
and notice of hearing in which he ordered that Case 5-RC-
8999 be consolidated with Case 5-CA-6820 "for the
purpose of hearing, ruling, and decision by an Administra-
tive Judge, and that thereafter Case 5-RC-8999 be
transferred to and continued before the Board in Washing-
ton, D.C., and the provisions of Section 102.46 and 102.49
of the above-mentioned Rules shall govern the filing of
exceptions."
The cases came on for hearing at Baltimore, Maryland,
on November 21, 22, 25, and 26, 1974. 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.
FINDINGS OF FACT,1 CONCLUSIONS AND REASONS
THEREFOR
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Maryland corporation, is engaged at
Baltimore, Maryland, in the operation of warehousing
facilities and the intrastate transportation of freight as a
link in interstate commerce.
During the preceding 12 months, a representative period,
Respondent received in excess of $50,000 for services
furnished to enterprises which either sell or ship goods and
materials or purchase and receive goods and materials, in
interstate commerce, valued at more than $50,000 per year.
At all times material herein, Respondent is, and has
been, an "employer" as defined in Section 2(2) of the Act,
engaged in "commerce" and in operations "affecting
commerce" as defined in Section 2(6) and (7) of the Act,
respectively.
H. THE LABOR ORGANIZATION INVOLVED
At all times material herein, Freight Drivers and Helpers
Local Union No. 557, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, herein called the Union, is and has
been a labor organization within the meaning of Section
2(5) of the Act.
contradiction to the findings herein , their testimony has been discredited,
either as having been in conflict with the testimony of credible witnesses or
because it was in and of itself incredible and unworthy of belief. All
testimony has been reviewed and weighed in the light of the entire record.
No testimony has been pretermrtted.
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Cases 5-CA-6811 and-6820
In the forepart of June 1974, Working Foreman Wayne
T. Owens, an employee of Respondent, requested a
meeting with Robert M. Connor, vice president and
general manager of Respondent. According to Owens the
mechanics "had things they would like aired out." A
meeting was held the following Friday, June 7, 1974, which
was attended by Connor and two truck mechanics, two
trailer mechanics, and two forklift mechanics. The truck
mechanics , present were Owens and Russel Kenneth
Dittrich. Work topics were discussed. According to
Connor, Owens "was doing most of the talking." Among
other things Connor said to the employees, "July 1st is the
semi-annual time that we increase everybody. You men
certainly will be considered." During the meeting the word
"contract" was mentioned to which Connor responded,
"everytime I hear that word contract, it makes me sick."
From the employees' viewpoint little was accomplished at
the meeting ; some of them immediately sought help from
the Union. Owens phoned Union Organizer Joseph
Zappacosta and an appointment was arranged for Mon-
day, June 10, 1974, at 6:30 p.m. Four mechanics, Owens,
Dittrich, Bobby Wilson, and Larry Connor, kept the
appointment. Each signed a union authorization card.
Thereafter Owens and Dittrich solicited additional union
authorizations and a petition for an election was filed on
June 12, 1974. Connor, received notice of the'petition on
the same date.
Several days after Connor received the notice, on June
15, 1974, he offered Owens the position of maintenance
superintendent. At the time Owens was the working
foreman and the best mechanic Connor had ever em-
ployed. According to Connor he had broached the subject
of a promotion to Owens in April and May 1974. Shortly
after the later conversation with Owens in May 1974,
Connor ran an advertisement in a newspaper soliciting
applicants for the position. Connor said he utilized the
advertisement because "there was left in [his] mind the
doubt that [Owens] might not recuperate 2 to a point where
[he] could employ him in this capacity" and "[a ]lthough
Wayne seemed qualified, it was very possible [he] could
pick some one more qualified."
During the June 15 conversation Connor advised Owens
that if he accepted the position he would "become part of a
management group. As a member of this group, he would
have new responsibilities especially with regard to the
petition that we had received and his handling of the men.
Namely, that his loyalties would now be with the Company
and as a management man-and that he would have to do
2 Owens had incurred a knee mji}ry.
3 The truck ' repairs shop where Owens worked was located at
Respondent's Light Street establishment.
4 Prior to the advent of Gisriel , Owens had worked directly under
Connor.
5 This was the fourth union organizational campaign to which Connor
had been exposed . In all the QQthers he had been successful. Connor was no
tyro. He testified, "After four go-rounds, I am rather experienced in what to
say and what not to say."
3 Connor informed Tartar that "he had consulted with an attorney about
he wanted to talk and get back at them . For some reason, he had promised
the best he could to express management position, to give
the men the benefit of our side of the consideration that
they were faced with."
The advertisement ran for a period of 30 days at which
time Connor discontinued it since he had interviewed two
people who were "seemingly qualified."
On the Friday following June 15, 1974, Connor contact-
ed Owens who told him that he was "going to go with the
hourly group and the Union."
Thereafter Owens commenced wearing union badges
and adorning his toolbox with union insignia.
Harry J. Gisriel was hired as maintenance supervisor on
July 3, 1974, which "included the truck repairs,3 the trailer
repairs at the shop on Fort Avenue, and also the forklift
repairs on Boston Street." While Gisriel became Owens'
supervisor, Owens' job as working foreman was to have
remained the same.4
B. The Alleged 8(a)(1) Violations of Connor
1. After Connor had received the union petitions but
before he had offered Owens the management position
above mentioned and after having received the green light
from his lawyer, he summoned Dittrich and Owens to his
presence on June 13 , or 14, 1974. However, he did not
converse with them in his office but chose the lunchroom
and called Victor Robert Tartar,6 operations manager, as a
witness. Connor said that he was "flabbergasted" when he
received the petition and informed his lawyer, "They are
going to be waiting for me. They said they wanted me to
come bacc`to them. I got to say something."
At the meeting Connor informed the employees that the
drivers and mechanics were petitioning for an election for
the Union. He said that he tried to think who would do
something like that and that the first person who came to
his mind was Owens. He asked both employees if they had
any connection with the filing of the petition. Each denied
his part. Connor remarked that he thought that he had an
understanding with them and wondered why he received
the petition. He indicated that the raises scheduled for July
1, 1974 (12 cents an hour), could not now be given and "the
rest of the guys" would be "real pissed off" 7 At this point
Dittrich revealed that he had signed a union card.
2. The first or second week after the petition was filed
Connor observed that some of Respondent's trucks were
adorned with "union stickers ." Connor then informed
Owens that he did not want any union stickers on the
trucks and that he should pass the word. Later a union
decal was removed from Owens' toolbox, damaging the
finish of the box. Owens asked Connor whether he had
removed the decal. Connor's answer was negative.
something to them down at this meeting and that he wanted to talk to them,
to get back at them any way possible , because this petition, he didn't think
he could do it."
7 Connor testified that he told the employees that in view of the petition,
"I can't fulfill or even discuss any of the things we talked about last Friday."
He also said he told the employees that "I had said I'd be back to them
within a week or so after last Friday's meeting about some of the things they
asked me and now that I had received the petition I wasn 't going to be able
to follow through on some of the things that I possibly was going to be able
to give some consideration to."
LOCUST INDUSTRIES, INC.
Shortly thereafter Connor inquired whether Owens and
Dittrich were going to attend a meeting scheduled for
Saturday at which Connor intended to compare the
company benefits with the union benefits. When Owens
answered in the negative Connor became angry and said,
"You guys think you know everything. Well let me tell you
I don't need you and I don't need Kenny Dittrich either
and furthermore, everytime I look at them union stickers
. it makes me want to vomit . . . I ought to make you
take that tool box out of here and make you take it off." 8
3. In the latter part of July 1974, Connor informed
Owens that he had heard that Owens wanted to terminate
his employment if the Union lost and that he had no
alternative but to look for a'replacement; that he was
advertising for a replacement and when he got one he was
going to let Owens go . Owens said he was satisfied with his
job and was going to stay.
Dittrich overheard this conversation and was next
approached by Connor who expressed about the same
thought to him. Dittrich responded by saying, "you better
have a real good reason because I am going to go right to
the Labor Board." Connor replied, " I am going to• have a
reason, but not NLRB. I am going to have it my way
(hitting his fist in his hand). I am going to get you my
way."
4. In the latter part of July 1974, Owens was alone in
the garage when he received a call from dispatcher Pat
Connor, Robert M. Connor's son, that a truck had broken
down. Owens informed Pat Connor that he was alone in
the garage and asked him whether he should close the
garage and take the road call, wait for someone to return,
or call an outside mechanic. Pat Connor chose the latter
and called the Clover garage, which on occasion performed
road service for Respondent.
Not long thereafter, Robert Connor appeared in a rage
and addressing Owens said "that he had made a bad
decision and cost him money. Said Connor, "you really
fucked this one up ... Don't you know what the hell you
are doing? Don't you want your job?" Owens asked
Connor to refrain from using such language and, tried to
explain that his son had made the decision.9 Connor
"brought up the Union." Dittrich became involved.10
Connor screamed, "Just because you two guys are involved
in this union , you think you can do whatever in the hell
you want. You got a knife in each hand and you are going
to stab in the back. But I am going to do the cutting in the
end." 11
5. During the first week of July 1974, Connor asked
employee Robert L. Elburn whether he knew "about
s Connor testified that he said , "I'm sick of seeing those stickers around
here." His version is not credited
s Gisriel arrived after the incident hadcommenced. He remembered that
Owens said "something to Mr . Connor about he wasn't using the type of
language that had been used , and he would appreciate it if he didn't use that
language to him." Gisriel did not hear the language referred to.
10 Connor testified, "Ken Dittrich ... like he always does, butts in the
conversation."
11 Apparently Connor's complaint against Owens was that he let
Connor's son make the decision.
12 Connor testified that he had asked Elburn about an unfair labor
practice charge he had received.'
13 In concluding that Elburn was a credible witness I have weighed the
fact that he was openly for the Union and that lie had filed an unfair labor
721
having to go to the Labor Board with Wayne and Kenny."
Elburn replied that he had heard "something about it but
[he] didn't know what it was all about." 12 Connor also
asked him what he thought about the Union. Elburn
replied that "one thing [he] liked about it was more money
and good benefits." Connor then indicated that Union
Representative Zappacosta was "a rotten bastard." He
would promise everything and he would give nothing. He
added that' "if the union was in, he would shut the doors.
That he could make it on warehousing .... ' 13
6. In July 1974, employees Bobby Eugene Wilson,, Sr.,
and Larry Connor approached Connor for a discussion
about raises and safety shoes. Connor showed Wilson a
letter addressed to the employees explaining that a petition
had been filed. Wilson read the letter which imparted
information he had not known before. Connor said, "As
you know, things being in this particular situation right
now, I couldn't offer you a raise or anything like that right
now because it could be considered a bribe." Tartar was
present and agreed. Connor further stated, "everyone was
due for a raise the first of July, but the way things were
right now his hands were tied. On advice of counsel he
couldn't give it to us." Connor added that he saw no need
for a union. Wilson replied that he didn't "need somebody
else to go between me and you," and he didn't want the
Union as a bargaining agent. Connor also said that he
would "almost rather stop the trucking operation as to be
in the union," and that he could get other truckers to haul
his freight if the employees went on strike.' During the
conversation Connor also 'asked Wilson how he felt about
the Union.14
7. , In August 1974, Owens was assigned to a brake job.
-Owens was of the opinion that the job as directed to be
performed 'by Gisriel would cause a safety hazard. He
therefore wrote a note for Connor's signature absolving
him of any responsibility if the job failed to meet the
requirements of safety. Owens handed the note to Connor
as he passed' by where Owens was working. Connor
crumpled the note and, upon being informed by Owens
that Gisriel had approved the job, told Owens to complete
it as Gisriel had directed. Connor added, "Don't worry
about that brake job because you won't be here long
enough to see whether it goes bad or not." 15
In the light of the entire record and in the context used is
it is found that Respondent interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed
by Section 7 of the Act in violation of Section 8(a)(1) of the
Act by the following misconduct, to wit:
practice charge which was dismissed. -
14 Connor testified that he told Wilson that some things that "normally"
he would be doing he couldn't do because of the petition , "but that it would
probably be worked out in the near future ." " Tartar testified that Connor
said that "he couldn't give him anything because it would look like he was
trying to buy his vote." '
15 This statement was overheard by employee Richard A . Evashko, who
is considered a credible witness.
is "it is not the effect of any of the objectionable acts standing alone,
however, but the combined effect of all of them, which must be considered."
Home Town Foods, Inc., d/b/a Foremost Dairies of the South v. N.LRB, 379
F.2d 241, 244 (CAL 5, 1967). Accord, Home Town Foals, Inc. v. N.LRB,
416 F.2d 392, 397 (C.A. 5,1969).
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Connor's interrogation, of employees Owens and
Dittrich on June 13 or 14, 1974, as to whether theyhad any
connection with the Union's representation petition.17
2. Connor's statement to.Owens and Dittrich on June
13 or 14, 1974, to the effect that scheduled raises for July 1,
1974, would not be given.18
3. Connor's threat addressed to employee Dittrich that
he was going to "get" him his "way." 19
4. Connor's threat, after reference to the Union, to wit:
"I am going to do the cutting in the end."
5. Connor's threat addressed to employee Elburn that
"if the union was in, he would shut the doors." 20
6. Connor's remarks to employee Wilson, after his
reference to a raise due the first of July, that his hands were
tied.
7. Connor's remark to Wilson that he would "almost
rather stop the trucking operation as to be in the union."21
8. Connor's threat, in view of his expressed union
animus and the known union affection of Owens, that
Owens "won't be here long enough to see whether it goes
bad or not."
C. The Alleged 8(aXl) Violations by Ralph Paul
Turchi, Assistant Operations Manager
Around July 15, 1974, employee Charles Leon Teal and
Assistant Operations Manager Ralph Paul Turchi con-
versed about the Union at Pier One. Among other things
Turchi asked Teal how he felt about the Union. Teal
replied that he was in the middle. Turchi also asked Teal
why he was wearing a union sticker. Teal answered that he
was wearing it because if he did not "other guys would
laugh and call [him] chicken."
Since these interrogations cannot be viewed in isolation
but must be considered in connection with Respondent's
antiunion stance, it is found that Turchi's interrogations
violated Section 8(a)(1) of the Act.
D. Alleged Discrimination in Connection With
Owens' Shift Change on July 29, 1974
Sometime prior to July 29, 1974, Gisriel told Connor that
he "thought it would be helpful if we arrange a supervisor
on the second shift." At that time Gisriel reported around 7
a.m. and left at about 5 p.m. Owens' shift commenced at
17 In the can of N.LR.B. v. Milco, Inc., Tod Manufacturing Company,
Inc., and Alan Marine Division of Jervis Corp, 388 F.2d 133 (C.A. 2, 1968),
the court said at 137:
In evaluating questions arising from the interrogation of employees,
the issue is whether the activity is "calculated to frustrate the union's
organizational campaign by instilling fear of reprisals in the employ-
ees." N.L.R.B. v. L E. Farrell Company, 360 F.2d 205,207 (2 Cir. 1966).
In the case of N.LRB. v. Southern Electronics Co., 430 F.2d 1391 (C.& 6,
1970), the court said at 1393 : "It is well settled that such interrogation
violates § 8(aXI) when its probable effect is to inhibit union activity." The
interrogations herein found unlawful meet these tests . The employees were
left "to conjure up various images of employer retaliation." Dubin-Haskell
Lining Corp. v. N.L.R.B., 375 F.2d 568 (C.A. 4, 1967).
The clear purpose of the interrogations was to elicit aid for Respondent's
antiunion objectives. Credible proof is lacking that such questioning was
pursuant to the Employer's legitimate business interests . Cf. Winchester
Spinning Corporation, 402 F.2d 299 (C.A. 4, 1968). See also N.LRB. v.
Builders Supply Company of Houston, 410 F.2d 606,609 (C.A. 5, 1969).
6:30 a.m. and ended at 3:30 p.m. Dittrich's hours were
from 10 a.m. to 6:30 p.m. Part-time employees, who were
elsewhere employed during the day, commenced work
between 5 p.m. and 7 p.m. and quit between 8:30 p.m. and
9:30 p.m. There were two mechanics on the day shift and
two on the evening shift. Connors approved Gisriel's
recommendations and Owens' hours were changed to 12
p.m. to 8:30 p.m.
Under the new schedule Owens was allowed to spend the
dinner period at home. Owens lived about four blocks from
the garage.
Connor explained that a full-time mechanic was not
hired for the night shift rather than to have transferred
Owens because he had been "looking for mechanics full-
time for 6 months, and they just were not available."
At the time Owens was hired he informed Connor that
he "didn't want the second or third shift." As a conse-
quence Connor "guaranteed" Owens a day shift.
Prior to Owens' transfer to the night shift employees had
received their assignments, which were posted on a
clipboard, from Gisriel. Prior to Gisriel's employment, the
employees on the night shift repaired what was written up
by the drivers as needing repair.
Owens protested the shift change and expressed to both
Gisriel and Connor that ordinarily a man of his back-
ground would not accept such a thing,22 but in view of the
situation in respect to the Union he would "see it through"
and work the less 'desirable hours in the hope that if the
Union won the election his seniority would entitle him to
the day shift 23
There is a strong suspicion that Owens' transfer to the
night shift was discriminatory and perpetrated for the
purpose of causing Owens, a union partisan, who was
known by Connor to abhor the night shift, to quit. Hence,
considering Connor's persuasion (even though Owens was
a topnotch mechanic and his departure would have
prejudiced Respondent to that extent), Owens' quitting
would have without a doubt been welcomed by Connor
and would have gratified his union animus. However, the
recommendation for the shift change originating with
Gisriel, who did not harbor Connor's intense union
animus, seems plausible in view of an apparent need for a
working foreman on the night shift. Moreover, Owens
appears to have been the logical choice since Respondent
had been unable to obtain full-time mechanics. According-
's Dom 's Transportation Company, Inc., 168 NLRB 457 (1967); Mendel
Manufacturing Company, Incorporated, 197 NLRB 1093 (1972).
19 This was a clear threat of reprisal against Dittrich, a known union
activist. An employer is restrained by the Act from either making "threat of
reprisal or force or promise of benefit" during a period in which a union is
organizing its employees . Gusel Packing Co., Inc. v. N.LR.B., 395 U.S. 575
(1969). The Board has said, "We regard the threat of job loss to be a serious
deterrent to organizational activity," Comet Rice Mills Division, Early
California Industries, Inc., 195 NLRB 671(1972).
20 Marshfield Steel Company v. N.LR.B., 324 F.2d 333, 336 (CA- 8,
1963); Masdon Industries, Inc., 212 NLRB 505 (1974); Answering, Inc., 215
NLRB No. 118 (1974).
21 In the context used and in view of Elburn's testimony which referred
to a similar statement repeated by Connor, this statement is viewed as a
threat to close the garage.
22 Connor testified that Owens said that if the shift change was
permanent that he would be "losing a good mechanic."
23 Owens informed Gisriel that he was "going to take it on the chin
because of the union involvement."
LOCUST INDUSTRIES, INC.
ly, it is concluded that the General Counsel has not
established by a preponderance of the evidence that
Owens' shift change was discriminatorily motivated and
the allegations of the complaint in this respect are
dismissed.
E. The Discharge of Wayne T. Owens
Wayne T. Owens was employed by Connor in March
1973. At the time of his employment Owens disclosed to
Connor that he possessed journeyman's credentials with
the International Association of Machinists and showed
him his credentials . Connor told Owens that Respondent
was not union and opposed the Union and that the Union
had been "voted down" one time before; that Respondent
was a family organization and did not need a third party to
interfere. Owens-was hired and, as informed by Connor,
was paid more than the average mechanic because of his
experience and knowledge.24 Connor testified that Owens
was "very qualified." Owens as the working foreman
reported directly to Connor.25 Owens fulfilled his work
assignments satisfactorily and was considered the best
mechanic Connor had ever employed.
On January 31, 1974, Owens injured his knee very
severely and was hospitalized. During his recuperation the
need for Owens became greater and Connors asked him to
return to the garage and sit in a chair so that employees
could benefit by his "decision making." During this period
Owens mentioned that his leg was not mending satisfacto-
rily and he thought perhaps he ought to take 30 days off.
Connor responded, "go ahead and do it because your own
health comes first. We will work it down here someway." It
was during this period when Connor first mentioned a
managerial job. The second mention of a managerial job
was on the date Owens had asked for time off. Owens did
not need the 30 days and returned to full-time work around
May 1, 1974.
After the advent of the Union, Owens described the
changed ambiance in these terms: "Everything changed
then. It was like a battlefield atmosphere all the time. It
started out and all of a sudden my work wasn't any good-
I didn't do it fast enough. I talked itoo much. I fooled
around too much and that, type of thing."
As noted above, on July 3, 1974, Gisriel became Owens'
boss at which time there was "quite a deal of discussion
going on about the Company for and against the Union
and for and against the Company."
Owens believed that Gisriel lacked his competence and
he so advised Connor. Gisriel's relationship with Owens
was not clearly defined. Connor said that he had met with
Gisriel and Owens and among other things said that Owens
would "continue to be the working foreman and continue
to assume all the responsibilities that he had up until that
time." Connor "felt on a cooperative basis that it should
work out nicely for the company."
24 Besides serving a 4-year apprenticeship Owens was a graduate of a
technical high school.
25 Connor testified that at the time Owens was hired that Owens made it
clear that "he would want no interference from anyone, including
[Connor]" which was agreeable to Connor. Connor said that he wasn't "a
qualified working foreman in the garage" and he was `very glad to have him
723
Apparently there were differences of opinion between
Gisriel and Owens. Gisriel also believed that employees
were taunting him.26 On several occasions Gisriel had
raised the question of resigning with Connor. During the
second week Gisriel was-employed, Gisriel told Owens that
he had the impression that he was unhappy and that he
understood that he had been offered the position as
supervisor and that he had turned it down. Owens agreed.
Gisriel then said that if Owens wanted the job he would
resign "on the spot." Owens replied that he did not want
the job; that he was making more money than that of a
supervisor; and that if the Union were successful his
benefits and salary would increase. According to Gisriel
the situation improved, "was pretty good for a few days"
but "gradually went back into the same channel."
According to Connor, the first time he told Owens that if
there was a difference of opinion between Gisriel and
Owens, Gisriel's opinion should prevail, was at the time of
the brake drum incident above detailed.
On August 9, 1974, employee Richard A. Evashko failed
to report for work. Dittrich, the only mechanic in the shop,
was being overworked. He suggested to Gisriel that, since
Owens lived near the shop, he should call Owens for work.
Gisriel phoned Owens who agreed to come immediately.
When Owens arrived he informed Gisriel that he had a
doctor's appointment at 3 o'clock and handed Gisriel a
card with a doctor's name on it. Owens said that he would
have to leave around 2 o'clock but would come back and
work until 8:30 p.m. Gisriel said, "That'll be fine." Owens
was then assigned to assist Dittrich in removing a
differential assembly from a truck. This job was completed
about 11:30 a.m. After it was removed Gisriel contemplat-
ed how the assembly could be lifted to a pickup truck for
delivery to an outside repairer, Brockway Motors. He
suggested that a 1-1/2-inch hole be burned in a metal beam
located above a door from which a chain fall could be
hung for lifting the assembly into a pickup truck. Owens
responded that if Gisriel wanted to do that he should
consider that the Company did not own the building; that
the building was leased and "there might be repercus-
sions." Owens said, "Don't you think we ought to check
with somebody before we bum the hole?" Owens also
pointed out that the hole might weaken the support in the
beam.
Gisriel thought about it and then told the employees to
finish pushing the truck in the shop. Saying that he had to
go to the office, Gisriel left. Dittrich and Owens finished
the task in about 15 minutes at which time a road call was
received. Dittrich serviced the road call and did not return
until 2:30.
Evashko, who had been fired earlier in the day, appeared
at the shop and was present when Gisriel returned about
2:20 p.m. By this time Owens had changed to his street
take the position" because he "needed someone who could assume that
quantity and quality of authority."
26 Gisriel testified, "When I would turn around to leave the office there
would be a lot of horse-laughs and jokes that I didn't really realize behind
my back what was going on, but everybody else thought was a huge joke; it
was real funny. Although I realized they were being directed at my back."
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clothes. Gisriel remarked that Owens had not burned the
hole in the beam.27 Owens replied that Gisriel had "really"
not said he wanted the hole burned in the beam. Gisriel
responded that he wanted the hole burned and if Owens
did not bum the hole he was fired. Owens said he was in
his street clothes and was about to leave for the doctor's
appointment. Gisriel insisted. Owens replied that he could
not cut the hole then, but would return and bum the hole
later when he had kept his doctor's appointment. Gisriel
still insisted, stating that if Owens left without burning the
hole "he might as well take his tools and toolbox with
him." Owens asked if that meant that he was fired. Gisnel
answered, "That's right."
On the following Monday, Owens filed an unfair labor
practice charge which was served on Respondent on
Tuesday.
After Gisriel left Owens at around noon, he ultimately
reached Connor's office about 1:30 p.m. Gisriel testified
that he advised Connor that he and Owens "had had this
discussion about the advisability of burning this hole, what
his feelings were in the matter, and what my feelings were
in the matter," and that he had left the instructions with
Owens to proceed with the job.28 According to Gisriel he
did not discuss with Connor what he should do if Owens
insisted on not burning the hole.29 In the same conversa-
tion, according to Gisriel, Connor asked him whether the
hole would weaken the beam or have an effect on the
building. Gisriel assured him that no harm would result.
Gisriel also testified that Connor asked him whether
Owens was working on the hole and he answered that
Dittrich had left for lunch and "he wouldn't be able to do
anything very much on his own until such time as Dittrich
got back, but that I expected him to have the job done by
the time I got back there."
Connor claims he did not instruct Gisriel to discharge
Owens. Connor never contacted Owens to get his side of
the story, although he said he valued employees' opinions.
He testified that "I never want to see a man fired" but "if I
can be in on it, I want to be in on it." 30
Gisriel testified that in the first instance Owens did not
say that he would not cut the hole, "He simply didn't cut
the hole."
Gisriel also said that Owens' "sole" problem was the
union environment.
The Brockway garage to which the differential assembly
was to be removed was open 5 days a week, 7:30 a.m. to 4
p.m.
Connor testified that he did not want to live with the
Union.
Evashko was rehired and given another chance on "the
promise that he would be in there every morning on time."
Owens' alleged refusal was the first "outright refusal"
Gisriel had encountered while working for Respondent.
Harold Menekin, leasing agent for the owners of the
premises occupied by Respondent, testified that the
burning of the hole would be considered a structural
change and by reason thereof a breach of the lease.
"[T ]he fact that a worker takes part in protected activity
does not insulate him from discharge for legitimate
business reasons." The Torrington Company v. N.L.RB.,
506 F.2d 1042 (C.A. 4, 1974). "[A]n employer may hire and
discharge at will, so long as his action is not based on
opposition to union activities." NLRB. v. The Little Rock
Downtowner, Inc., 341 F.2d 1020, 1021 (C.A. 8, 1965).
However, the "mere existence of valid grounds for a
discharge is no defense to a charge that the discharge was
unlawful, unless the discharge was predicated solely on
those grounds, and not by a desire to discourage union
activity." N.L.R.B. v. Symons Manufacturing Co., 328 F.2d
835, 837 (C.A. 7, 1964). "A justifiable ground for dismissal
is no defense if it is a pretext and not the moving cause."
N.L.R.B. v. Solo Cup Company, 237 F,2d 521, 525 (C.A. 8,
1956).
In considering whether Owens' discharge was pretextual,
Connor's deep-seated union animus is an important
factor.31 Connor's union animus protrudes in the record
like a "sore thumb." That Owens' discharge gratified that
animus and accommodated Connor's threats are apparent
from such remarks uttered by Connor as: ". . . every time
I hear that word contract, it makes me sick"; union stickers
27 Evashko remembered that when Gisnel arrived he said to Owens,
"Where are you going?" Owens replied that ,he had explained to him earlier
that he had to go to the doctor. Gisriel responded, "No, you didn't."
Evashko also testified that Owens said , "I will cut the hole in the beam after
I get back from the doctor."
28 Gisnel testified:
Just simply that he had raised the question about his responsibility for
burning this hole in the beam, that the building didn't belong to Locust
Industries, that the owner may hold him liable for burning that hole in
the beam, and I also recited to him the answer that I had given him,
that it wasn't going to cause any problems to the building, it wasn't
going to destroy the building, and if there was any responsibility, I
would resume [sic] the responsibility.
Connor testified that Gisriel said to him:
I told Wayne Owens to bum a hole in the beam in the doorway to get
this rear lifted into a truck and he refused to do it with the excuse that
the company didn't own the building and was he in any way going to
be held responsible for the damage that might be done to the building
that he assumed the responsibility and there was no reason why
Wayne Owens should refuse and he said-I don't know whether it is
being done or if it will be done when I go back over there or not. I left
there with the explicit understanding that I wanted the hole burnedin
that beam.
Connor said, "There is no reason why your instructions should not be
followed over there. I would like you to go back and work it out the best you
can."
29 When Gisnel was asked how the subject of Owens came up with
Connor, he said , "I explained to him [Connor] that Owens had all this
opinion about the inadvisability of burning this hole in the beam, his
reasons for this and my reasons for wanting to proceed."
39 Connors testified that after Owens' discharge Gisriel reported to him
that when Gisnel returned he asked Owens why the hole had not been
burned. "[T]here was some expression of his concern over who owned the
building and what his responsibilities would be in carrying out that order."
Gisriel said, "I am the authority here and I am responsible for what I am
telling you to do so I want you to do it." Owens refused, pointing out that he
had to leave for the doctor. Gisnel replied that it would only take a few
minutes. Owens refused again and said, "I am leaving." Gisnel responded,
"if you are leaving without doing what I have told you, then you can take
your tools with you." Owens asked, "You mean I am fired?" Gisriel replied,
"Yes, you are terminated."
31 "[E ]very equivocal act that was done may be properly viewed in the
light of respondent's animus toward the effort to organize its men."
N.L.RB. v. Houston and North Texas Motor Freight Lines, Inc., 193 F.2d
394,398 (C.A. 5), cert. dewed 343 U.S. 934 (1951).
LOCUST INDUSTRIES, INC.
"makes me want to vomit"; to Dittrich, "I'm going to get
you my way"; to Dittrich and Owens, "I am going to do
the cutting in the end"; to Owens in the hearing of
Evashko, "you won't be here long enough to see if it goes
bad or not"; "if the union was in, [I'll] shut the doors";
and "[I ] would almost rather stop the trucking operation as
to be in the union:' Moreover, Connor's zest and
vehemence for defeating the Union was further manifested
when on election day not only did he, himself, appear in
the vicinity of the' gate in order to impress, employees with
Respondent's point of view but also he marshalled his
attorney, his son, and several supervisors as helpers in this
regard.32 Connor sought every advantage, including the
commission of unfair labor practices.
Connor's credibility is also a factor. He was not a
believable witness . His attitude as revealed on the witness
stand was that of an individual who was given to
command, and his temperament and impulsiveness fitted
that of a person who would have made the remarks
attributed to him. As an admitted expert in the business of
antiunion campaigning, he sought to cover his actions with
his knowledge in this field. His use of a corroborating
witness was a devious device, as the witness' demeanor on
the stand exhibited fear and anxiety which cannot be
attributed to the normal ' reactions of a witness while in
court under oath. The credible record abundantly supports
Connor's assertion that he did not want to live with the
Union. Additionally, it justifies a conclusion that he
exercised great effort, to the point of committing unfair
labor practices, to avoid living with the Union.
On the other hand, Gisriel was, as noted by Respondent,
"a mild mannered man, 68 years of age." Obviously Gisriel
did not bear the same deep-seated animus toward the
Union as did Connor. Gisriel seems to have been out of
character when he fired Owens over what appears to have
been a trifle. Indeed, Gisriel by nature was considerate and
conciliatory, for he had gone to Owens and offered to quit
his job if Owens preferred it. Moreover, he readily forgave
Evashko, a less able mechanic , and returned him to
employment. However, Gisriel's fault was that he allowed
himself (perhaps unwittingly) to be used by Connor as the
instrument for effecting Owens' discriminatory discharge
and that, during his testimony, he evidenced a disposition
to cover up for Connor.
That Connor did not anticipate the confrontation that
developed with Owens when Gisriel left his office around 2
o'clock would reflect adversely on Connor's savvy, which
appeared to be considerable. Connor knew of Owens'
32 Connor's son said to employee Douglas Warren Myers, "Look were
counting on you Doug. We need your vote."
33 Respondent maintains that Owens' dispute with Gisriel involving a
traffic incident and Owens ' conversation with CDnnor "about the vacation
bit" "played d substantial part in his [Connoes ] decision not to overrule
Gisriel and '', reinstate him." However, these events occurred after Connor's
decision to remove Owens from the payroll became fixed and for such
reason they are specious references . Moreover, these events were not of such
a serious or flagrant nature as to justify the vnthholding of the normal
remedy of reinstatement and backpay.
34 It is also significant that the burning of the hole would have been
considered a structural change in the building, a breach of the lease, and
might have ! caused a weakening of the beam . Indeed an alternate method
was available. (Owens and Dittrich both testified that the assembly could be
hand-lifted by them.)
3S "[T]he 'real motive' of the employer in an alleged § 8(a)(3) violation is
725
doctor's appointment at 3 o'clock and without a doubt
conditioned Gisriel for the discharge of Owens if he
refused to burn the hole. Moreover, it is preposterous that
"mild mannered," considerate Gisriel would have dis-
charged on his own authority both a leading union activist
and an able mechanic whose work was needed by his
employer. From Gisriel's point of view, it must also be
considered that, from the standpoint of expediency,
loading the differential assembly on the truck for delivery
to Brockway Motors was of little practical value as far as
speeding, the truck's repair, since Brockway Motors closed
at 4 o'clock (it was then after 2:30) and would not reopen
until the following Monday morning. Thus, whether
Owens burned the hole before or after his doctor's
appointment was of little consequence. What was of
consequence, however, was that Owens had been marked
for discharge. Hence, Gisriel fulfilled his errand-boy role
for Connor, even though his action appears to have been
incompatible with his general makeup.
That Connor intended Owens' discriminatory discharge
to stick is, further evidenced by the fact that he ratified33
the discharge without reviewing Owens' story, even though
the loss of Owens was prejudicial to Respondent's business
operation because of Owens' excellent work record and his
value to Respondent. Indeed, considering the trifling
nature of Owens' offense, his approved appointment with
the doctor, and the lack of need for the immediate burning
of the hole, it is implausible that Owens was barred from
employment unless it is considered that his barring was in
gratification of Connor's union animus. The Respondent
has advanced no credible business reasons for the
discharge of Owens.34 Hence, it is clear that the "real
motive" of Respondent 35 in perpetuating Owens' discharge
was to utilize his discharge for the scotching of employee
affection for the Union. This obviously was anticipated36
and by continuing Owens in a discharge status Respondent
reaped'the advantage from discharging a key employee in a
union organizational drive.37
"Illegal motive has been held supported by a combina-
tion of factors, such as `coincidence in union activity and
discharge' . . . `general bias or hostility toward the union'
... variance from the employer's `normal employment
routine . . . and an implausible explanation by the
employer for its action. . . ." McGraw-Edison Company v.
N.L.R.B., 419 F.2d 67, 75 (C.A. 8, 1969). All these factors
are present in the instant case.
decisive ....." N.LRB. v. Brown et aL, d/b/a Brown Food Store, et at., 380
U.S. 278, 287 (1965). See also Local 357, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers ofAmerica [Los Angeles-
Seattle Motor Express] v. N.LRB., 365 U.S. 667,675 (1961).
36 "[A In employer's protestations that he did not intend to encourage or
discourage must be unavailing where a natural consequence of his action
was such encouragement or discouragement. Concluding that encourage-
ment or discouragement will result , it is presumed that he intended such
consequence. In such circumstances intent to encourage is sufficiently
established." The Radio Oficers' Union of the Commercial Telegraphers
Umpn, A.F.L [Bull Steamship Co.] y. NLRB., 347 U.S. 17,45 ( 1954).
37 "[W ]here the discharge in question involves the 'key' employee m an
organizational drive, it may supply shape and substance to otherwise
equivocal circumstances." NLRB. v.'Dav,dson Rubber Company, 305 F.2d
166, 169 (C.A. 1, 1962),
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, it is found that the discharge of Wayne T.
Owens on August 9, 1974, was in violation of Section
8(aX3) and (1) of the Act.
- CONCLUSIONS OF LAW
1. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
2. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will
effectuate the purposes of the Act for jurisdiction to be
exercised herein.
3. By interfering with, restraining, and coercing em-
ployees in the exercise of rights guaranteed by Section 7 of
the Act, Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. By unlawfully discharging Wayne T. Owens on
August 9, 1974, Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent has engaged in
certain unfair labor practices, it is recommended that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act
It having been found that Respondent unlawfully
discharged Wayne T. Owens, it is recommended that
Respondent remedy such unlawful conduct It is recom-
mended in accordance with the Board's policy38 that
Respondent offer Wayne T. Owens immediate and full
reinstatement to his former position or, if such position no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of earnings he may have
suffered as a result of the discrimination against him, by
payment to him a sum of money equal to the amount he
would have earned from the date of his discriminatory
discharge to the date of an offer of reinstatement , less net
earnings during said period, to be computed on a quarterly
basis in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289 (1950), and including
interest at the rate of 6 percent per annum in the manner
set forth in Isis Plumbing & Heating Co, 138 NLRB 716
(1962).
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ss See The Rushton Company, 158 NLRB 1730, 1740 (1966).
ss 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.
ORDER39
The Respondent Locust Industries, Inc., Baltimore,
Maryland, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in, and employee affection
for, Freight Drivers and Helpers Local Union No. 557,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or
any other union, by unlawfully discriminatorily discharg-
ing any of its employees or discriminating in any other
manner with respect to their hire or tenure of employment,
or any term or condition of employment in violation of
Section 8(a)(3) of the Act.
(b) Unlawfully interrogating its employees regarding
their union or other collective activities.
(c) Unlawfully threatening its employees with reprisals in
violation of Section 8(a)(l) of the Act.
(d) Unlawfully withholding wage increases because the
Union has filed a representation petition.
(e) In any like or related manner interfering with,
restraining, or coercing any employee in the exercise of the
rights granted to them by Section 7 of the National Labor
Relations Act; to engage in self-organization; to form, join,
or assist labor organizations; to bargain collectively
through a representative of their own choosing; to act
together for collective bargaining, or other mutual aid or
protection; or to refrain from any and all these things.
2. Take the following affirmative action which will
effectuate the purposes of the Act,
(a) Offer Wayne T. Owens immediate and, full reinstate-
ment to his former position or, if such position no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges,
discharging if necessary any employee hired to replace
him, and make him whole for any loss of pay he may have
suffered by reason of the Respondent's discrimination
against him in accordance with the recommendations set
forth in the section of this Decision entitled "The
Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(c) Post at all its establishments in Baltimore, Maryland,
copies of the attached notice marked "Appendix." 40
Copies of said notice, on forms provided by the Regional
Director for Region 5, after being duly signed by the
Respondent's representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
4° 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."
LOCUST INDUSTRIES, INC.
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 5, in writing,
within 20 days from the_ date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act other
than those found in this Decision.
Case 5-RC-8999
The Order in Case 5-RC-8999 above mentioned refers
for decision the validity of Employer's Objection 3, to wit:
Accordingly, as substantial and material issues of
credibility have been raised with respect to Owens'
conduct and his relationship to the Petitioner, the
undersigned directs that a hearing be held with respect
to the issues raised by Objection No. 3.
The objection reads as follows:
In particular, the Employer objects as follows:
* * *
(3) to Petitioner's agents„ adherents, supporters and
representatives blatant campaigning and electioneering
amongst employees as they approached the voting
place on their way to vote in violation of the Board's
rule as stated in Milcherr, Inc., 170 NLRB No. 46.
In Milchem, Inc., the Board announced the rule that "the
sustained conversation with prospective voters waiting to
cast their ballots, regardless of the content of the remarks
exchanged, constitutes conduct which, in itself, necessitates
a second election." Explaining the rule the Board said:
We intend, of course, that our application of this rule
will be informed by a sense of realism. The rule
contemplates, that conversations between a party and
voters while the latter are in the polling area awaiting to
vote will normally, upon the filing of proper objections,
be deemed prejudicial without investigation into the
content of the remarks. But this does not mean that any
chance, isolated, innocuous comment or inquiry by an
employer or union official to a voter will necessarily
void the election. We will be guided by the maxim that
"the law does not concern itself with trifles."
The Employer insists that the conduct of Owens has
caused the application of the rule and that the election of
August 29, 1974, must be vacated and a second election
directed.
The election was conducted between the hours of 6:30
a.m. and 8 a.m. in what was referred to as the drivers'
lounge 41 located in the employer's Light Street garage 10
feet beyond the entrance to the garage. Prior to the election
Owens, Zappacosta, Connor, and Pokempner; the observ-
ers, Ringus and Dittrich; and the Board agent supervising
the election, Joann Thom, met in the drivers' lounge.
41 Connor described this area as follows:
Immediately inside the door is a small area and then the area
immediately behind that area is the lunchroom or lounge area that is
727
Pokempner, the employer's lawyer, objected to Owens
acting as an observer. It was "resolved that Mr. Dittrich
and Mr. Ringus would be the observers and Mr. Owens
would not be an observer."
After the voting arrangements were completed, the
Employer's representatives42 took a position across and
"up" Light Street, about 230 feet from the gate through
which voters passed to reach the polling area. The gate,
about 12 feet wide, provided an entrance through a heavy
wire fence running parallel with Light Street. Light Street is
a dead end street, terminating "down" the street from the
gate.
Zappacosta had parked his car on Light Street toward
the dead end about 50 feet from the gate. Owens had
parked his motorcycle along the street near the gate
entrance. Zappacosta remained in his car and Owens stood
"alongside" his motorcycle.
The building which contained the drivers' lounge was
located in what was referred to as the "yard." The gate
referred to above opened into this yard. A distance of
about 65 or 70 feet lies between the gate and the door
which the employees used to enter the polling area.
Between this door and the fence was open yard space. The
door was visible from the fence and vice versa.
Around 7 a.m. employees commenced to congregate
around Owens. Some of these employees were employees
on their way to the voting area; others were returning.
Connor became concerned; he did "not like the looks of
the advantage that labor people seem[ed] to have over" the
Employer "at this time ." " He suggested to his attorney,
`Pokempner, "Shall we walk over to the gate to attempt to
equalize the situation." Pokempner, after weighing the
problem, resolved to dispatch a note by Tom Robinson, an
employee who had already voted. The note in substance
was as follows:
Mrs. Thorn, Mr. Owens is standing in the proximi-
ty of the voting gate. He is much too close to the polls.
He is encountering all voters as they come in to vote
and is engaging in discussion. I wish you would come
out and remove him from the scene.
Shortly after the note was delivered, Board Agent Thom
appeared outside the door and, as described by Pokemp-
ner, "She looked, she came close to the gate, looked, but
she, from what I could observe, said nothing. Mr. Owens
was not there at the time at the spot he had been in when I
had written the note." However, there were still individuals
at the gate.
According to Connor, around 7:15 a.m. and again about
7:30 a.m., Owens walked to Zappacosta's car and con-
versed with him. Zappacosta spoke to no other employee
voters. On the first occasion Zappacosta called Owens'
attention to apparent employer solicitation being conduct-
ed by the employer representatives "up" the street.
used by the drivers, and the election was held in that lounge area.
42 This group included Connor , Pokempner, Tartar, Turchi, Mark
Connor, Connor's son, and Office Manager Roe.
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer representatives were contacting employees as
they proceeded down the street toward the polling43 area.
On the second occasion Zappacosta checked with Owens
as to which employees had voted.44 Zappacosta did not
instruct Owens to converse with prospective voters.
Owens admitted that he conversed with at least 5 voters
before they voted (24 votes were cast) and to almost all the
other employees while near the gate. He related what he
said as follows: "Just about everything in general: What
I'd been doing, where I'd been working, what kind of
money was I making and things of that nature and, of
course, just the spirit that, you know, we were going to win
this election and we were going to accomplish, you know,
what we had hoped we were going to do at the offset of this
thing "45
The credible record does not establish that Owens while
residing at the gate acted as an agent for the Union. Under
these circumstances, the Board with court approval
accords less weight to asserted misconduct of rank-and-file
employees than similar conduct by "the employer who has,
or the union which seeks, control over the employees'
working conditions." Orleans Manufacturing Company, 120
NLRB 630, 633 (1958). Accord: N.L.R.B. v. Myca Products
Division of the Kane Company, 352 F.2d 511, 512 (C.A. 6,
1965); Matlock Truck Body and Trailer Corp. v. N.L.RB.,
495 F.2d 671, 673 (C.A. 6, 1974).
Nevertheless, assuming arguendo that Owens was an
agent of the Union, his alleged misconduct at the gate does
43 As employee Douglas Warren Myers was proceeding toward the gate
Mark Connor said-to him, "Look, were counting on you, Doug. We need
your vote."
44 Zappacosta testified: "... it was getting close to eight o'clock and I
was checking off the voters and the amount of people that went in and I
beckoned Wayne Owens to come over and I checked with hum to find out
who had not showed. I was concerned with one individual that I knew was a
strong vote for me that hadn't showed up."
45 Employee Roland Lee White remembered Owens giving the peace
sign and saying "don't let me down" and that he "made $113 for 557 in one
day." Employee William D. Norton remembered that Owens said, "All
right, Bill, let's ^ stick with the troops." Employee Alvin A. Myers
remembered that Owens said, "This man made more money working for
not come within the proscription of the Milchem rule. The
rule applies to "prospective voters waiting to cast their
ballots" and "conversations between a party and voters
while the latter are in a polling area waiting to vote. ! The
proscribed conduct was a union representative conversing
with prospective voters "near the line of employees waiting
to vote." In the instant case the facts differ. Owens, the
alleged offender, was off the employer's premises, outside a
gate, on a public street over 65 feet from the door leading
to the polling area. He was neither near a line of voters nor
within the polling area. Thus his conduct may not be
construed to have interfered with the employees' 'freedom
of choice to such an extent that it materially affected the
results of the election. See N.L.R.B. v. Newton New Haven
Company, 506 F.2d 1035 (C.A. 2, 1974); Harold W. Moore
d/bla Harold W. Moore & Son, 173 NLRB 1258.(1968). In
the latter case the alleged objectionable conduct cited
involved several petitioner representatives and several
employees conversing "within 60 feet of the ballot box
while the election was in progress." The Board overruled
the objections, opining "the Milchem rule does not in any
event apply to conversations with prospective voters unless
the voters are, as was not true here, in the polling area or in
line waiting to vote." See also Marvil.International Security
Service Inc., 173 NLRB 1260 (1968).
Accordingly, it is found that the objections of the
Employer are not well taken and should be overruled.46
557 yesterday than you fellows make in a week," and "I worked for 557
yesterday and made $113." Myers' credibility is doubtful.
46 It is not considered that the Employer's claims that Zappacosta's
alleged misconduct in maintaining an alleged checklist of eligible voters and
Owens' alleged misrepresentation constituted unlawful interference with the
election were included'for decision as a part of the submission. Neverthe-
less, if they are considered, it would not change the result. Even though it
were assumed that Zappacosta's alleged checklist was other than one which
is sanctioned by the Board, any alleged violation would have been de
mrnimis,' Tom Brown Drilling Company, Inc., 172' NLRB 1267 (1968).
Additionally, the alleged misrepresentations were not of such a nature as to
constitute unlawful interference with the election.