R. J. Lallier Trucking

National Labor Relations Board - Board Decisions

Aug 17, 1976

225 N.L.R.B. 937 (N.L.R.B. 1976)

R J. LALLIER TRUCKING 937
R. J. Lallier Trucking and Construction , Building
Material , Ice and Coal Drivers and Helpers and In-
side Employees, Local Union 221 , International
Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers' of America . Case 18-CA-4755
August 17, 1976
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND WALTHER
On April 29, 1976, Administrative Law Judge Jerry
B. Stone issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, R. J. Lallier Trucking,
Minneapolis, Minnesota, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
' The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc. 91
NLRB 544 ( 1950), enfd 188 F 2d 362 (CA 3, 1951 ) We have carefully
examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Administrative Law Judge: This pro-
ceeding under Section 10(b) of the National Labor Rela-
tions Act, as amended, was heard pursuant to due notice
on February 26 and 27, 1976, at Minneapolis, Minnesota.
The charge was filed on October 14, 1975. The com-
plaint in this matter was issued on December 10, 1975. The
issues concern (1) whether the Respondent discriminatorily
discharged Gerald M. Garrity on June 2, 1975, and Robert
L. Bauerfeld on September 1, 1975, because of their union
or protected concerted activities and thereby violated Sec-
tion 8(a)(3) and (1) of the Act; (2) whether the referred to
discharges were nondiscriminatory or for cause or whether
Bauerfeld quit his employment rather than being dis-
charged; and (3) whether the Respondent made certain
statements which constituted threats within the meaning of
Section 8(a)(1) of the Act, or whether such statements were
nonviolative within the meaning of Section 8 (c) of the Act
or the first amendment of the Constitution of the United
States of America.
All parties were afforded full opportunity to participate
in the proceeding. Briefs have been filed by the General
Counsel and Respondent and have been considered.
Upon the entire record in the case and from my observa-
tion of the witnesses, I hereby make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYER
The facts herein are based upon the pleadings and ad-
missions therein.
R. J. Lallier is, and has been at all times material herein,
an individual proprietor engaged in the trucking business,
doing business under the trade name and style of R. J.
Lallier Trucking.
During the year ending December 31, 1974, which peri-
od is representative of its operations during all times mate-
nal herein, the Respondent, in the course and conduct of
its business operations, performed trucking services valued
in excess of $50,000, of which services valued excess of
$50,000 were furnished to Northern States Power Compa-
ny and Minnesota Mining and Manufacturing Company.
Northern States Power Company is a public utility sup-
plying customers electrical power. During the year ending
December 31, 1974, which period is representative of its
operations during all times material herein, Northern
States Power Company's gross annual volume of business
exceeded $500,000. During the same period Northern
States Power Company, in the course and conduct of its
business operations, purchased and caused to be transport-
ed and delivered to its facilities within the State of Minne-
sota goods and materials valued in excess of $50,000, of
which goods and materials valued in excess of $50,000
were transported and delivered to its facilities within the
State of Minnesota, directly from points outside the State
of Minnesota.
Minnesota Mining and Manufacturing Company is a
corporation engaged in the manufacture, sale, and distribu-
tion of various products During the year ending December
31, 1974, which period is representative of its operations
during all times material herein, Minnesota Mining and
Manufacturing Company, in the course and conduct of its
business operations, purchased and caused to be transport-
ed and delivered to its facilities within the State of Minne-
sota goods and materials valued in excess of $50,000, of
which goods and materials valued in excess of $50,000
were transported and delivered to its facilities within the
State of Minnesota, directly from points outside the State
of Minnesota.
225 NLRB No. 131
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As conceded by Respondent and based upon the fore-
going, it is concluded and found that Respondent is, and
has been at all times material herein , an employer engaged
in commerce within the meaning of Section 2 (2), (6), and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED I
Construction, Building Material, Ice and Coal Drivers
and Helpers and Inside Employees, Local Union 221, In-
ternational Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , is, and has been at all
times material herein , a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICE ISSUES
A. Preliminary Issues; Supervisory Status 2
At all times material herein Raymond J. Lallier has been
owner of Respondent and has been and is now a supervisor
of Respondent , within the meaning of Section 2 ( 11) of the
Act, and its agent.
B. The Facts 3
1. Certain background facts relating to Respondent's
business are revealed by the findings in the Decision and
Direction of Election in Case 18-RC-10438 issued on
April 28, 1975. Such decision reveals findings of the follow-
ing facts excerpted therefrom.
The Employer com^ienced its business operations in
December 1968 and was primarily engaged in the
transportation and hauling of materials for Northern
States Power Company under a contract for the term
January 1, 1969 to December 31, 1971. The Employer
began its operations with one truck driver and one
vehicle, and the number increased during the NSP
contract term to 7 truck drivers operating 6 trucks and
2 loaders. The contract was subsequently extended to
June 30, 1972. By the end oft' this extended term, the
Employer's employee complftment dropped to 2 truck
drivers, but the Employer, retained 6 trucks and 2
loaders. At that time, the Employer decided to go out
of business and put its trucks up for sale. Its truck
drivers at that time were represented for the purposes
of collective bargaining by Local Union # 120, Gener-
al Drivers, Helpers and Truck Terminal Employees,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of Amer-
ica. The Employer had maintained a check-off system
and had made payments to fringe benefit funds of that
Local. The Employer put its trucks up for sale on June
1 The facts are based upon the pleadings and admissions therein
2 The facts are based upon the pleadings and admissions therein
3 The facts are principally based upon a composite of the credited aspects
of the testimony of Garrity , Bauerfeld , Lallier , Peterson , Stromberg, Tschi-
da, Bailey Peetz, and Smith , exhibits , stipulations , and statements of counsel
narrowing the issues Testimony of any witness inconsistent with the facts
found is discredited
30, 1972, kept two of them, and prepared to go out of
business . Two of the Employer 's former truck drivers
sought to lease the remaining trucks. The Employer
agreed , and from this time forward , the truck drivers
paid their own Federal and State income tax and So-
cial Security payments, which have previously been
paid by the Employer. The leasee truck drivers would
at times call on various contractors , securing a con-
tract for services usually using the Employer 's name.
The Employer, however, has secured 95 percent of the
business independently of the truck drivers . Otherwise
the Employer must approve of the contracts secured
by the drivers. The Employer collects money from the
contractors for work the truck drivers perform and
pays the truck drivers a percentage of the gross re-
ceipts.
The lease agreement entered into between the Em-
ployer and the truck drivers initially was a single para-
graph calling for the leasee truck drivers to pay the
lessor Employer 36 percent of the gross earnings of the
truck . The lease was indefinite as to term but gave
either party the right to terminate upon 30 days writ-
ten notice . Written notice of termination of the lease
was exercised on at least one occasion . Subsequent
leases became more detailed . The current leases pro-
vide for a deduction of 10 percent from the gross
amount the Employer receives to compensate the Em-
ployer for expenses. The leases further provide that
the leasees receive a percentage (36 percent or 45 per-
cent depending on the type of truck ) of the remaining
gross amount. The truck drivers do not invest capital
in the trucks and termination of the lease by the leasee
does not involve a forfeiture of a security. The Em-
ployer does not run a credit check on prospective leas-
ees, and there are no formal payments (specific
amounts) required under the lease. Furthermore, para-
graph No. 2 of the current lease agreements reads as
follows:
During the term of thin lease the said vehicle (s) shall
be used for the pickup , delivery and general trans-
portation of certain materials , all in connection with
one or more of said contracts and/or projects and
other obligations of the company, under authority
of the company.
The "said contracts and/or projects" referred to in the
paragraph above are apparently those to which the
Employer has entered into with contractors and other
parties. Therefore , according to the terms of the lease,
a truck driver cannot perform work for anyone who
does not have a contract or agreement with the Em-
ployer.
2. Respondent 's business is seasonal in nature.4
Throughout the year, however, Respondent has at least one
truck (and driver) performing services for Northern States
Power Company. Respondent's busy season occurs be-
tween the first of October of the year and April 15 of the
The facts are not in dispute and are based upon a composite of the
credited aspects of the testimony of all witnesses who testified to the season-
al aspects of the business
R. J LALLIER TRUCKING
following year. During the busy season the Respondent has
3 or 4 trucks (and drivers) operating. Respondent also sub-
contracts some of its work. During the off season (April 15
to October of each year) the Respondent principally has
one truck (and driver) performing work for Northern
States Power Company. On occasion, however, there is
more work and need for employees, and Respondent either
subcontracts the additional work, employs some temporary
part-time employees, or recalls regular drivers for such
work. Around September of each year Respondent's busi-
ness commences to increase gradually with the need of an
additional truck and driver for a day or two.
Most of Respondent's regular drivers receive little work
opportunity from Respondent during the off-season period
(April 15 to October of each year). However, if a regular
driver secures regular full-time and permanent employ-
ment from another employer, such driver is considered to
have quit his employment.' When an employee quits em-
ployment with the Respondent, accepts employment with
another employer, and later is rehired by the Respondent,
such employee loses his original seniority status and is ac-
corded seniority rights upon rehiring on the basis of his
new hiring.
As indicated, when there is occasional need for a few
hours of call-in work, the Respondent either subcontracts
such work, employs temporary part-time employees, or
calls in his regular drivers. With respect to the calling in of
regular drivers for work, the Respondent utilizes the princi-
ple of seniority and calls in the most senior regular employ-
ee.6
Excepting for the requirement that regular employees re-
main employees by not accepting employment with other
employers, there is no evidence of policy or practice requir-
ing such regular employees to remain available for receipt
of calls or notification as to needed work. Thus, no prob-
lem seems to have ensued by Respondent's inability to
contact a regular employee for needed work. Rather, the
Respondent appears to have simply contacted another em-
ployee, regular or part-time when the originally called em-
ployee could not be contacted.
Respondent's agents, agents for subcontractors, or
agents for the employer for whom work is done call in
employees for needed work when the occasion arises. Lists
of available part-time or regular employees are utilized for
the placement of calls to the employees for notification to
report to work.
It is clear that it was the practice of regular employees to
report to work and to work when notified by the Respon-
dent to report to work in either the busy or off season of
work. Excepting for the incidents involving Garrity in No-
vember 1974, on June 2, 1975, and an incident involving
Bauerfeld on June 10, 1975, there is no evidence that any
regular employee ever refused to report to work and work
when notified to do so.
5 The facts concerning the consideration that an employee loses his status
if he accepts other full-time employment are based upon the credited testi-
monial evidence relating to the treatment of Stromberg when he accepted
employment with another employer and ceased being an employee of the
Respondent
6 The facts are based upon the credited testimonial evidence concerning
Stromberg and the treatment accorded Stromberg and others
939
Although there is no evidence that a regular employee
has, in the past, refused to work when called for work,
there is evidence that part-time employees have refused to
work when called for work. Thus, Peterson credibly testi-
fied to the effect that when he acted on Respondent's be-
half, part-time employees had the option of refusing to ac-
cept work when called.
3. Gerald Garrity was initially hired by the Respondent
in June 1970. Thereafter, and until sometime in 1971, Gar-
rity worked as a regular driver and drove a company truck.
On two occasions in 1971 the Respondent discharged Gar-
rity because he was late in reporting to work. On both
occasions, however, the Respondent rehired Garrity in a
couple of weeks. Garrity continued to work for the Re-
spondent as a regular driver and drove one of
Respondent's trucks until the end of June 1972.7
In August 1972, Garrity bought a truck from the Re-
spondent and worked for Respondent under a lease ar-
rangement.' Thereafter from August 1972, to October 14,
1972, Garrity worked for the Respondent under said lease
arrangement. On October 14, 1972, the Respondent bought
back from Garrity the truck that Garrity was using. From
Cctober 14, 1974, to November 12, 1974, Garrity worked
for the Respondent and drove one of Respondent's trucks.
Around November 12, 1974, Garrity had been working
and had been notified to go to another job and work for a
few hours. Garrity did not do so and apparently drove
Respondent's truck to a bar and had a drink or two at the
bar. As a result of this incident, the Respondent discharged
Garrity in November 1974, and later rehired Garrity in
February 1975.9
From February 1975 to the time of his discharge on June
2, 1975, when Garrity worked for the Respondent, Garrity
drove one of Respondent's trucks.10 During such time Gar-
rity apparently worked a total of 7 days.
4. Robert Bauerfeld was initially hired by the Respon-
dent as a driver in August 1974 and worked until May 28,
1975. At such time Respondent did not have work for
Bauerfeld during the off season. Bauerfeld remained an
employee of the Respondent until late June 1975 as de-
termined herein."
5. On March 31, 1975, the Union (Construction, Build-
Garrity's work period was in accordance with the needs of the busy
season (October of one year to April 15 of the next year) and the off season
(April 15 to October of each year)
The question as to whether Respondent ' s lease arrangement constituted
drivers under such arrangement as "independent contractors" or employees
has been litigated in the representation case concerning Respondent (Case
I8-RC-10438) The decision in such case issued on April 28, 1975, and
found that the drivers operating trucks under the lease arrangements were
em9ployees within the meaning of the Act
Lallier testified in detail about this incident It is clear from Lallier's
overall testimony that his concern was the question of Garrity's drinking
while having custody of a company truck Lallier's testimony as to this
event does not indicate that the question of Garrity's not going to another
job was the motivating reason for his discharge on such occasion
10 Whether this was under a verbal lease arrangement, as contended by
Respondent , is not material Whether under a lease arrangement or not, it
has been litigated and determined in effect that Garrity was an employee
within the meaning of the Act
One of the issues in this case is whether Respondent discharged Bauer-
feld on September 1, 1975, by not recalling Bauerfeld to work As set forth
later herein, it is determined that Bauerfeld in effect quit his employment
around June 11, 1975, and that Respondent considered that Bauerfeld had
quit his employment as of late June 1975
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing Material, Ice and Coal Drivers and Helpers and Inside
Employees, Local Union 221, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America) filed a representation petition in Case 18-RC-
10438, for an election to be conducted by the Regional
Director Region 18 among certain employees of the Re-
spondent.12
6. Either around March 25 or 26, or at some point of
time after March 31, 1975, and before April 16, 1975, Presi-
dent Lallier asked his four driver employees to come over
to his house to discuss whether they wanted to go union or
stay under the lease. At this time three of the four drivers
were operating under a written lease arrangement with the
Respondent. The fourth driver, Garrity, did not have a
written lease arrangement with Lallier. The Respondent
contends, however, that Garrity had a verbal lease arrange-
ment with the Respondent.i3
Lallier told the employees in effect that when he bid a
job, he knew how much he was paying the employees per
hour, that he had raised their pay in January when he went
on a per ton basis, that he would look at the financial
situation if they stayed on a lease program, that, however,
if they went under the union contract, he would have to
take another look at the contract and see if there was
enough profit to stay in the business. Lallier questioned
each man as to whether the employee wished to remain
with the "lease" arrangement or go with the Union. Three
of the employees indicated that they preferred to stay with
the lease arrangement. Garrity, who did not have a written
lease arrangement with Lallier, asked what would happen
if he did not sign a lease. Lallier told Garrity that if he
didn't sign a lease, he wouldn't work. Garrity told Lallier
that he was in doubt, that he wanted to check with his
lawyer first. Garrity also told Lallier that he preferred
going with the Union rather than the lease arrangement.
7. On April 16, 1975, the NLRB representation hearing
in Case 18-RC-10438 was held. At the hearing the
Employer's representatives sat at one side of the room and
the Union's representatives sat at another side of the room.
In addition to representatives for the parties, Garrity,
Bauerfeld, and Charles Peterson attended the hearing.
Garrity and Bauerfeld sat on the side of the room with the
Union.
The issues in the representation case concern (1) whether
the drivers who worked under the lease arrangements were
independent contractors or employees within the meaning
of the Act, and (2) whether Peterson was an employee with
expectancy of future employment Bauerfeld was presented
as a witness to certain of the issues.
8. On April 28, 1975, the Decision and Direction of
Election in Case 18-RC-10438 issued. It was found in said
decision that the drivers who worked under lease arrange-
ments were employees within the meaning of the Act.
Sometime after April 28, 1975, the election in Case 18-
RC-10438 was scheduled for May 28, 1975.
12 The facts are based upon stipulations of the parties
13 Such contention does not have to be resolved since it has already been
Events of May 21, 1975; Threat of Loss of Work
9 The General Counsel alleges and the Respondent de-
nies that "on or about May 21, 1975, the Respondent's
owner, Lallier, at a restaurant in St. Paul, Minnesota,
threatened that employees would lose work time if the em-
ployees selected the Union as their bargaining representa-
tive."
Bauerfeld credibly testified to the effect that owner Ray-
mond J. Lallier had a conversation with him I week prior
to May 28, 1975, at a restaurant on Payne Avenue in St.
Paul, Minnesota. What occurred is revealed by the follow-
ing credited excerpts from Bauerfeld's testimony.14
A. Mr. Lallier stopped me down at Northern States
Power, the job, and asked me if I would go and have
coffee with him, he wanted to talk to me, so I did.
Q. Please relate to the Court your conversation
with Mr. Lallier at that time.
A. Well, I parked my truck, and we went and had
coffee on Payne Avenue, and he was talking about he
wanted to stay with the lease, he didn't want to go
union, and he said it's your decision, he said, but if
you stay with the lease, you probably work the year
around He said, "If it goes union, you'll probably just
work during the cold season," and he said, "Think it
over," and then he took me back down to work.
The General Counsel contends that Lallier's statement
constitutes a threat of loss of work time if the employees
selected the Union The Respondent contends that such
statements are expressions of opinions protected by Sec-
tion 8(c) of the Act and by the first amendment to the
Constitution of the United States of America.
Considering the facts, it is clear that the Respondent was
conveying to the employee the real probability of loss of
work opportunity if the employees selected the Union.
There is no evidence to reveal that the Respondent's pre-
dictions of economic consequences were based upon objec-
tive considerations. It is fundamentally clear that the
Union, if selected, must bargain with the Respondent
about any changes from Respondent's present mode of
compensation to Respondent's employees. Conceivably a
change to another mode of compensation for employees
could result in effect in the same actual receipt of wages,
etc., by Respondent's employees.
In my opinion the Board's decision in Components, Inc.,
197 NLRB 163 (1972), is controlling in this case. In such
decision the Board set forth the rigorous standards, articu-
lated by the Supreme Court in Gissel Packing Co., Inc. v.
N L.R B 395 U.S. 575, 616-619 (1969), to be applied to an
employer's statements when they constitute predictions of
the effect unionization will have on employees. Such stan-
dards require that "Such predictions must be carefully
phrased on the basis of objective fact to convey an
employer's belief as to the demonstrably probable conse-
quences beyond his control. If there is any implication that
an employer may or may not take action solely on his own
initiative for reasons unrelated to economic necessities and
known only to him, the statement is no longer a reasonable
litigated and determined that the drivers with lease arrangements were em- 14 Lallier testified to the effect that he did not recall the conversation
ployees within the meaning of the Act testified to by Bauerfeld
R. J. LALLIER TRUCKING
prediction based on available facts but a threat of retalia-
tion based on misrepresentation and coercion , and as such
without the protection of the First Amendment ." I note
that although the evidence reveals Respondent 's work to
be essentially seasonal in nature , Lallier in effect set forth
that there might be work opportunity if the Union were
defeated and less work if the Union were selected. The
message conveys Respondent 's power to control such de-
termination and the overall statement is not supported by
an objective factual basis Accordingly, I conclude and
find that the Respondent , by Lallier, violated Section
8(a)(1) of the Act by threatening employees (on May 21,
1975) with less work opportunity if they selected the
Union.
10. On May 28, 1975, the representation selection in
Case 18-RC-10438 was conducted . Gary Stromberg,
Frank Tschida , Robert Bauerfeld , and Gerald Garrity were
the eligible voters. The results of the election were three
votes for the Union and one vote against the Union.
On June 4, 1975, the Union was certified (by the Region-
al Director for Region 18 as the exclusive collective-bar-
gaining representative of all full-time and regular part-time
employees employed by the Respondent at its St. Paul,
Minnesota , facility; excluding office clerical employees,
guards and supervisors as defined in the Act.
Events of May 28, 1975; Threat of Less Work 15
On May 28, 1975, after the election in Case 18-RC-
10438 was over and the Union had won such election, Re-
spondent President Lallier spoke to Garrity, Bauerfeld,
and Stromberg in the parking lot. Lallier, who appeared
angry, told the employees in effect that the Respondent
would continue using its trucks on the Northern States
Power job, that he did not need to run them other than for
the Northern States Power job, and that the trucks would
otherwise sit for the summer. The employees asked Lallier
about the use of seniority in determining who worked. Lal-
her told the employees that it was his company and he
would determine who worked and who did not work.
The General Counsel contends that Lallier's statements
constitute a threat of loss of work time if employees select-
ed the Union. The Respondent contends that the statement
as made is an expression of opinion protected by Section
8(c) of the Act and by the first amendment of the Constitu-
tion of the United States of America.
The General Counsel argues in effect that the rigorous
standards applicable to employer's statements of economic
consequences following unionization as articulated by the
15
The facts are based upon a composite of the credited aspects of the
testimony of Garrity, Bauerfeld, and Lather The only other witness present-
ed with respect to this issue was Stromberg Stromberg did not appear to be
a frank, forthright, and truthful witness to this event Rather, Stromberg
appeared to be a witness who wanted to avoid testimony as to such event
His testimony was to the effect that he had no real recollection as to what
had occurred Garrity and Bauerfeld appeared to be more frank, forthright,
and objective witnesses as compared to Lallier as to the testimony to this
event I credit their testimony over Lallier's where such testimony is in
conflict I discredit Lalher's testimony to the effect that he was not angry
and that he not only said the trucks would sit but said that they would sit if
he didn't get a higher rate of pay for his trucks from the contractors (work-
ing on "highway heavy" contracts) I also discredit Stromberg's testimony
inconsistent with the facts found
941
Supreme Court in Gissel Packing Co., supra, require a find-
ing that the remarks were coercive and violative of the Act.
Considering the facts above, I am persuaded and con-
clude and find that the Respondent, by R. J. Lallier, on
May 28, 1975, as alleged, engaged in conduct violative of
Section 8(a)(1) of the Act by threatening employees with
less work because they had selected a union as their collec-
tive-bargaining representative. It is clear that, in the con-
text of an NLRB election having just been held with the
Union winning such election, Lallier's angry appearance
and announcement of less work opportunity was meant to
and did convey to employees that they would receive less
work opportunity because they had just selected the
Union. Such conduct is clearly violative of Section 8(a)(1)
of the Act. I would note that there is no evidence to show
that the Respondent had an objective economic basis for
the conveyance of such threat and did not convey to the
employees an objective economic basis for such threat.16 In
sum, I conclude and find that the Respondent, by R. J.
Lallier, as alleged, violated Section 8(a)(1) of the Act, by
threatening employees on May 28, 1975, with less work
opportunity because they selected the Union."
Events of June 2, 1975; The Discharge of Garrity
12. Shortly before or apparently on the morning of June
2, 1975, President Lallier talked to Everett Houle, who did
some subcontracting for the Respondent, and to Frank
Tschida, an employee truckdrtver, with reference to setting
up a job to start around noon on June 2, 1975. Lallier
instructed Tschida to call Bauerfeld to report to work. Lal-
her instructed Houle to have his "Bobcat" on the job.'s
The job to be performed involved the digging of a garden
on Clear Street in St. Paul, Minnesota.
Tschida attempted to call Robert Bauerfeld to report for
work. Tschida, however, was unable to contact Bauerfeld.
Thereafter Tschida, around 10:30 a.m., telephoned Gerald
Garrity.19
16 As indicated, I discredit Lallier's testimony to the effect that he told
employees that if he did not receive higher pay for the trucks that they
would sit, except for the Northern States Powerjob If Lather , as a matter of
economic necessity, had to raise the rates he charged, unless he wished to
threaten the employees, it does not appear logical that he would find the
need to notify the employees of such conditions immediately after the elec-
tion The facts reveal that normally, excepting for the Northern States Pow-
erjob, there was not much work in the summer Further, I would note that
even if Lather made the remarks as testified to by him, no objective eco-
nomic basis for his remarks are shown or were conveyed to the employees
Under the principles of Gissel Packing Co, supra, Lallier's statements, as
testified to by him, would constitute threats violative of Sec 8( a)(1) of the
Act
17 The Respondent seems to assume that because a union had been select-
ed, his usage of lease drivers automatically would be replaced with a simple
employer-employee relationship This, of course, would depend upon the
result of his relationship with the Union in the collective- bargaining process
As the facts reveal, the Respondent and the Union agreed to delay bargain-
ing for a contract to a later date As of May 28, 1975, there is no evidence
to reveal that the Employer was compelled to make economic changes as to
his contracts with other contractors
is
Lallier testified to the effect that he instructed Tschida to call Garrity
for work Tschida, however, testified to the effect that he called Bauerfeld
first Under such circumstances, I am persuaded and conclude and find that
the instructions were to call Bauerfeld first and then to call Garrity if Bauer-
feld could not be reached
n The witnesses to the issue of the telephone call to Garrity were Garrity
Continued
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tschida asked Garrity if he wanted to go to work for a
couple of hours that day. Garrity told Tschida that he did
not want to accept such work, that the reason that he did
not want to accept such work was that the notice was short
and he had people coming to his family's lake home in
Wisconsin and he had to be there.20
Everett Houle telephoned Lallier and reported that Gar-
rity had refused or declined to come to work. Lallier then
spoke to Tschida and told Tschida to have Everett Houle
call one of his trucks in to get the job done. Houle brought
in another truck and driver. The job was apparently com-
pleted in 8 hours.21
Either during the conversation between Lallier and
Houle and Tschida or shortly thereafter Lallier questioned
Houle and Tschida, or other employees on the job, as to
the reasons Garrity had not reported to work. At such time
Lalher learned in effect that Garrity had related that he
had people coming to his family's lakeside home, consid-
ered that he had to be at the lakeside home, and for this
reason had not accepted the Job offered.
Lalher then discharged Garrity by sending him a letter
as follows.
June 2, 1975
CERTIFIED MAIL
Mr. Gerald Michael Garrity
1089 Burnquist
St. Paul, Minnesota 44106
Dear Mr. Garrity:
You are hereby informed of termination of employ-
ment with R. J. Lallier Trucking because of your re-
fusal to work after being called today.
Sincerely yours,
/s/Raymond J. Lalher
R. J. Lallier
RJL/jl
and Tschida Lallier, however, testified with respect to a telephone call from
Hould and Tschida to Lallier relating to what had transpired in the earlier
telephone call Garrity's testimonial demeanor appearance was that of a
more fully frank, objective, and truthful witness than either Tschida or Lal-
her It is clear that Tschida's testimony was incomplete in detail and that
Lallier's direct testimony was not complete and in detail Lallier's complete
testimony, when prompted by a prehearing affidavit, reveals that Garrity's
testimony was more complete and reliable than Tschida's Respondent's
counsel questioned Garrity as to the failure of his prehearing affidavit to
reveal that Garrity had told Tschida that the notice of work was too short
It is clear, however, that Garrity explained why he did not want to accept
work It is completely logical and consistent that the explanation impliedly
or directly indicated that Garrity had made other plans before such notice
of work I find Garrity a completely credible witness and credit his version
of what occurred To the extent that Tschida's testimony is inconsistent
therewith, such testimony is discredited
20 The transcript record reveals Garrity's direct testimony to be to the
effect that people were coming from the family's lake home in Wisconsin
rather that going to said lake home During Garrity's further examination
with reference to his affidavit, Garrity spoke of going to said lake home
Lalher's testimony referred to reports (which had to originate from Houle or
Tschida, who were both on the telephone with Garrity) that Garrity had to
go to Wisconsin I am persuaded that the transcript record either has an
inadvertent error as to reference "from" instead of "to," or Garrity inadver-
tently used the word "from" instead of "to" In any event, whether Garrity
told Tschida that people were coming to or from the Wisconsin lake home
would not affect the ultimate results in this case
Lallier testified to the effect that he did not discharge
Garrity because of Garrity's union activities, that he dis-
charged Garrity because Garrity refused to report to work.
Lallier also testified that he considered Garrity's record of
employment in deciding to fire him. Lalher testified to the
effect that he considered Garrity's reasons for not report-
ing to work to be inadequate. Considering the logical con-
sistency of all the facts, Lallier's obvious hostility toward
the unionization of his employees, and Respondent's meth-
od of obtaining employees in the off season, I discredit
Lallier's testimonial reasons for the discharge of Garrity.
Contentions; Conclusions
The General Counsel contends that the Respondent dis-
criminatorily discharged Garrity on June 2, 1975, in viola-
tion of Section 8(a)(3) and (1) of the Act
The facts are clear that the Respondent equated the
unionization of his employees and the establishment of an
exclusive bargaining agent for his employees with the ne-
cessity to change from a "lease" type operation. Garrity
was the one employee of the Respondent who clearly re-
vealed a strong interest in a straight employer-employee
relationship rather than an employee lease arrangement.
The Respondent had reason to believe that Garrity and
Bauerfeld were strong supporters of the Union by virtue of
their appearance at the representation hearing on April 16,
1975. Respondent's remarks to the employees in his poll of
whether they wanted to go union or stay under the lease
arrangements, the threats of loss of work opportunity if or
because employees selected the Union by Lallier to Bauer-
feld on May 21, 1975, and later to all the employees on
May 28, 1975, clearly reveal amimosity toward the union-
ization of employees and a desire to take reprisals therefor.
The facts reveal that Respondent's method of usage of
its employees during the off season was extremely loose. It
is clear that the Respondent did not require such employ-
ees to remain at a place where they could be called. It is
clear that no adverse actions were taken against employees
if they could not be reached when needed. Although there
is no evidence that a regular employee has ever refused or
declined to come to work prior to June 2, 1975, when need-
ed, there is evidence that temporary employees have re-
fused jobs without adverse actions taken.22 Respondent's
handling of the calling of employees is often left up to
noncompany indviduals to administer. Under such circum-
21 Tschida testified to the effect that he did not know how long the job
would last I note the job was to start at noon As previously indicated. I
credit Garrity's testimony that Tschida told him in effect that he was being
offered a couple of hours work
22 On June 10, 1975, Bauerfeld, who had agreed to report to work on that
date, reported to work late and found that everyone had left It was reported
later to the Respondent that Bauerfeld had not shown up for work The
Respondent did not discharge Bauerfeld at that time Only after Bauerfeld,
during the latter part of June 1975, had reported in effect that he had quit or
left Respondent's employment for another job, did Respondent consider
Bauerfeld to be terminated Lalher testified that he did not send Bauerfeld
a letter of termination around June 10 or I I because he had a meeting with
the Union coming up concerning Garrity's discharge Considering all of the
facts, I credit Lather's testimony to this effect I am persuaded that Lallier
did not want to have a larger argument with the Union at this time than was
necessary concerning the Garrity discharge I do not find this incident to be
of significant help in resolving the issues herein
R. J LALLIER TRUCKING 943
stances, I find it hard to believe that the Respondent, ab-
sent discriminatory reasons, would take such a hard-nose
approach and ignore an obviously reasonable reason for an
employee to turn down a job opportunity received only a
few hours before the job commenced. Especially is this so
since the job opportunities for employees during the off
season is sporadic in nature . 23 Rather , considering
Respondent 's awareness of Garrity's interest in the Union,
Respondent 's hostility toward unionization of employees,
and the expected change from "lease" operations to
straight employer-employee relationship, I am persuaded,
conclude, and find that the Respondent discharged Garrity
on June 2, 1975, because of Garrity's union activity and
beliefs and to demonstrate to the other employees that
their choice of the Union as exclusive collective -bargaining
representative was a mistake. By such conduct, the dis-
charge of Garrity on June 2, 1975, the Respondent engaged
in conduct violative of Section 8(a)(3) and (1) of the Act. It
is so concluded and found.
Events of June 9, 10, and thereafter-Bauerfeld's
Quitting
13. On June 9, 1975, around 6 p.m., R. J. Lallier tele-
phoned Bauerfeld , told him that he had some work for the
next day, and asked Bauerfeld if he would come in to work
on June 10, 1975. Bauerfeld told Lallier that he would do
so. However, on June 10, 1975, Bauerfeld reported to work
about 30 to 40 minutes late Since everyone was gone at
that time , Bauerfeld left and returned home.
Bauerfeld , who had previously applied for a full-time job
with the Minnesota State Prison system , commenced work
as a full - time employee on June 11, 1975, and worked for
such employer until July 27, 1975.
Around the latter part of June 1975, R. J. Lallier tele-
phoned Bauerfeld and asked if he were still working for the
Respondent . Bauerfeld told Lallier in effect that he was no
longer working for the Respondent , that he had gone to
work at the state prison as a guard on a full -time basis
because he couldn ' t afford not to work steady hours. Lalli-
er asked Bauerfeld to return the gas keys and truck keys.
Bauerfeld indicated that he could not return the keys that
day because he had to work. Lallier told Bauerfeld to mail
them in and that he would send a check for what the keys
had cost . Lallier and Bauerfeld also discussed a question of
a doctor's bill, and Lallier agreed to pay such bill.24
After the Minnesota State Prison job , Bauerfeld worked
for Indian Head Truck Lines from August 1 to around
August 28, and for Twin City Freight from August 28,
1975, for about 28 days. For each of these jobs Bauerfeld
sought and was hired as a full-time employee . On each job,
however, Bauerfeld was laid off or let go before the 30-day
probationary period had expired. After the Twin City
Freight job , Bauerfeld has done some work for a company
called Rayette (apparently a part of Farbege Trucking).
Contentions; Conclusions
The General Counsel contends in effect that the Respon-
dent discriminatorily discharged Bauerfeld in violation of
Section 8 (a)(3) and ( 1) of the Act on September 1, 1975, by
not recalling him to work during the busy season . The Re-
spondent contends that it has not discriminatorily dis-
charged Bauerfeld , but that Bauerfeld quit his employment
and thus was terminated around the latter part of June
1975.
Considering all of the facts, I am persuaded , conclude,
and find , that the facts do not reveal that the Respondent
discriminatorily discharged Bauerfeld on September 1,
1975. This is so despite the evidence of company knowl-
edge of Bauerfeld's support for the Union and the evidence
of Respondent 's union animus as previously found and set
forth . Rather, the facts reveal that the Respondent has, in
the past , considered employees (who accepted full-time
jobs with other employers ) to have quit their employment.
The facts reveal that Bauerfeld had sought and had accept-
ed full -time employment in June 1975 with another em-
ployer and had communicated to the Respondent in effect
that he was no longer working for the Respondent because
of such other employment . Accordingly , it will be recom-
mended that the allegations of conduct violative of Section
8(a)(3) and ( 1) of the Act by the alleged discharge of
Bauerfeld be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's op-
erations described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
23 Garrity had worked only a few days since February 1975 and not at all
for approximately a month Further , Respondent's alleged reason of "refus-
al to work ," as expanded to include consideration of past employment re-
cord , does not warrant a different consideration
24 The facts are based upon a composite of the credited aspects of
Lalher 's and Bauerfeld 's testimony Lalher 's testimony on this incident ap-
peared more complete and consistent with the overall facts than did
Bauerfeld 's To the extent that Bauerfeld 's testimony is inconsistent with the
facts found , it is dicredited Testimony was also presented with respect to
whether Lallier had had discussions with Bailey of the Union as to whether
Bauerfeld had quit I found Lallier 's testimony to such conversations more
reliable than Bailey 's testimony and credit Lallier 's testimony thereto
1. R. J. Lallier Trucking, the Respondent , is an employ-
er engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Construction, Building Material, Ice and Coal Driv-
ers and Helpers and Inside Employees, Local Union 221,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America , is, and has been
at all times material herein , a labor organization within the
meaning of Section 2(5) of the Act.
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By discharging Gerald M. Garrity, Respondent has
discouraged membership in a labor organization by dis-
criminating in regard to tenure of employment, thereby en-
gaging in unfair labor practices in violation of Section
8(a)(3) and (1) of the Act.
4. By the foregoing and by interfering with, restraining,
and coercing its employees in the exercise of rights guaran-
teed in Section 7 of the Act, Respondent engaged in unfair
labor practices proscribed by Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative ac-
tion to effectuate the policies of the Act.
It having been found that the Respondent discharged
Gerald M. Garrity on June 2, 1975, in violation of Section
8(a)(3) and (1) of the Act, the recommended Order will
provide that Respondent offer him reinstatement to his
job, and make him whole for loss of earnings within the
meaning and in accord with the Board's decisions in F.. W.
Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing &
Heating Co., 138 NLRB 716 (1962), except as specifically
modified by the wording of such recommended Order.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that the
Respondent cease and desist from in any other manner
interfering with, restraining, and coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER25
benefits suffered by reason of the discrimination against
him in the manner described above in the section entitled
"The Remedy."
(b) Preserve and, upon 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 neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(c) Post at Respondent's place of business at St. Paul,
Minnesota, copies of the attached notice marked Appen-
dix." 26 Copies of said notice, on forms provided by the
Regional Director for Region 18, after being duly signed
by Respondent's representatives, shall be posted by it im-
mediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, defaced, or
covered by any other material.
Notify the Regional Director for Region 18, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of unlawful
conduct not specifically found to be violative herein be
dismissed.
25 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
26 In the event the Board's Order is enforced by a Judgment of the 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 "
The Respondent, R. J. Lallier Trucking, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from-
(a) Discharging, or otherwise discriminating against,
employees in regard to hire or tenure of employment, or
any term or condition of employment, because of their
union or protected concerted activities.
(b) Threatening employees with loss of work, layoff, or
reprisals because of their union activities or protected con-
certed activities.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act except to the extent that such
rights may be affected by lawful agreements in accord with
Section 8(a)(3) of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer to Gerald M. Garrity immediate and full rein-
statement to his former position or, if such position no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or other rights previously en-
joyed, and make him whole for any loss of pay or other
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer to Gerald M. Garrity 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 previously enjoyed, and make him whole for
any loss of pay or other benefits suffered by reason of
the discrimination against him.
WE WILL NOT discharge or otherwise discriminate
against employees in regard to hire or tenure of em-
ployment, or any term or condition of employment,
because of their union or protected converted activi-
ties
WE WILL NOT threaten employees with loss of work,
layoff, or other reprisals because of their union activi-
ties or protected concerted activities.
R J LALLIER TRUCKING
WE WILL NOT in any other manner interfere with,
restrain , or coerce employees in the exercise of their
rights guaranteed in Section 7 of the Act except to the
extent that such rights may be affected by lawful
agreements in accordance with Section 8(a)(3) of the
Act.
945
All our employees are free to become or remain, or re-
frain from becoming or remaining, members of any labor
organization, except to the extent provided by Section
8(a)(3) of the Act.
R. J. LALLIER TRUCKING