R & L Transfer, Inc., And Poe Unlimited, Inc.,

National Labor Relations Board - Board Decisions

Jul 31, 1989

295 N.L.R.B. 1170 (N.L.R.B. 1989)

1170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
R & L Transfer , Inc., and Poe Unlimited , Inc., a
single employer and International Brotherhood
of Teamsters , Chauffeurs, Warehousemen and
Helpers of America , Local No. 20, AFL-CIO.
Cases 8-CA-20178 and 8-CA-20283
July 31, 1989
DECISION AND ORDER
BY MEMBERS CRACRAFT, HIGGINS, AND
DEVANEY
On February 21, 1989 , Administrative Law
Judge Bruce C . Nasdor issued the attached deci-
sion . The General Counsel and the Charging Party
each filed exceptions and a supporting brief. The
Respondent filed cross-exceptions and a brief in
support of cross-exceptions and in answer to the
exceptions of the General Counsel. and the Charg-
ing Party.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings ," findings,2
and conclusions and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, R & L
Transfer, Inc., and Poe Unlimited, Inc., Norwalk,
Ohio , its officers, agents , successors , and assigns,
shall take the action set forth in the Order.
1 The General Counsel, the Charging Party , and the Respondent have
excepted to some of the judge 's credibility findings . The Board 's estab-
lished policy is not to overrule an administrative law judge 's credibility
resolutions unless the clear preponderance of all the relevant evidence
convinces us that they are incorrect . Standard Dry Wall Products, 91
NLRB 544 (1950), enfd . 188 F.2d 362 (3d Cit. 1951 ). We have carefully
examined the record and find no basis for reversing the findings.
R The judge inaccurately stated that the repair cost of Larry Carpen-
ter's May 29, 1987 accident was $31 ,000 rather than $3100.
The judge stated that the Respondent 's insurance premium cost is
$30,000 per month . We note, as the Charging Party pointed out in its ex-
ceptions, that this amount reflects the premium cost of several of the Re-
spondent's facilities , not just the facility involved in this case.
These errors do not affect the judge 's findings, which we adopt.
Richard F. Mack Esq., for the General Counsel.
William C. Moul, Esq., for the Respondent.
William Bon, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
BRUCE C. NASDOR , Administrative Law Judge. This
case was tried at Bellevue , Ohio, on October 5 and 6,
1987. The charge in Case 8-CA-20178 was filed on June
19, 1987.1 The original charge in Case 8 -CA-20283 was
filed on August 3. The amended charge in Case 8-CA-
20283 was filed on August 21. An order consolidating
cases, amended consolidated complaint and notice of
consolidated hearing issued on August 24, 1987. The
consolidated complaint alleges the discharge of five indi-
viduals in violation of Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act (the Act). It further alleges
various independent acts in violation of Section 8(a)(1) of
the Act.
On the entire record , including my observation of the
demeanor of the witnesses , and after due consideration of
the briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material R & L Transfer, Inc. and Poe
Unlimited, Inc. have been engaged in the interstate trans-
portation of freight.
Annually, R & L Transfer, Inc. and Poe Unlimited,
Inc. in the course and conduct of their business oper-
ations, collectively derived gross revenues in excess of
$50,000 from the interstate transportation of freight and
commodities from the State of Ohio directly from points
outside the State of Ohio. R & L Transfer, Inc., and Poe
Unlimited , Inc. (Respondent) constitute a single -integrat-
ed business enterprise and a single employer within the
meaning of the Act.2
The Respondent is an employer engaged in commerce
within the meaning of Section (2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION
The International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America, Local
No. 20 (the Union) is a labor organization within the
meaning of Section 2(5) of the Act.3
III. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent is engaged in the interstate transportation
of freight in the State of Ohio. The president and princi-
pal owner of R & L Transfer is Ralph L. Roberts
(known as Larry Roberts), and the terminal manager of
Poe Unlimited is Gary Thomas Roberts (known as Tom
Roberts).
Respondent employs approximately 60 truckdrivers
and 6 dispatchers in Norwalk , Ohio. It also employs a
terminal manager, dock foreman , customer relations per-
sonnel , supervisory personnel , and office personnel. The
truckdrivers are radio dispatched on their daily runs to
and from Cleveland , and the Toledo areas.
On June 5, 17 drivers , including the alleged discrimi-
nates, attended a farewell party at the Golf Inn in honor
1 All dates are in 1987 , unless otherwise indicated.
! For purposes of this proceeding, it was admitted that R & L Transfer
and Poe Unlimited are a single employer within the meaning of the Act.
a Although no pleading appears in the amended consolidated com-
plaint, I am taking administrative notice thereof.
295 NLRB No. 142
R & L TRANSFER 1171
of driver Gary Gilbert. Witnesses for the General Coun-
sel all maintain that the appearance of union representa-
tives was a surprise to them. Union representative Paul
Toney, a business representative who spoke at the party,
testified he did not know any of the drivers. He attended
the party by virtue of a "lead."
There is no evidence that any union authorization
cards were passed out or that any signatures were solicit-
ed.4 Nor is there any evidence that the alleged discrimin-
atees were engaged in any kind of union activities.
After over 6 hours of drinking and some fighting (a
jaw may have been broken ), discriminatees Robert
McIntosh , Larry Carpenter, and Stuart Swisher returned
to Respondent's terminal to pick up their vehicles and to
get gas . They were met by Tom Roberts who was out
for a pizza with his son and married daughter , Melissa.
According to the testimony of McIntosh, Swisher, and
Burras (who arrived shortly thereafter) Tom Roberts
asked how their union meeting went . Swisher in his testi-
mony added that Roberts threatened to "close up" if the
Union got in. Carpenter did not testify in this proceed-
ing.
All witnesses, including Tom Roberts, agreed that the
conversation lasted for approximately 1 hour, concluding
at 1 or 1 :30 a.m . on the morning of June 6. A variety of
subjects were discussed , including sports, drag racing,
and bar fights.
Tom Roberts specifically denied questioning , threaten-
ing, or raising the subject of the Union . He avers that
Carpenter and McIntosh called attention to the union
representatives at the party. They also protested they
didn't need a union, they can work it out inhouse among
themselves . Roberts denied knowledged of any union ac-
tivity until this conversation . He also explained his pres-
ence at the terminal that night . It is a 24-hour operation,
frequently visited by Roberts during the night shifts.
A. The Alleged Discriminatees
1. Larry Carpenter
As stated earlier Carpenter did not appear at the hear-
ing. Undisputed record evidence reflects that Carpenter
was discharged on June 8 because Continental Insurance
Company, Respondent 's carrier, had canceled its liability
coverage on Carpenter . Documentary evidence reflects
that Carpenter's dismissal order issued days before the
union representatives appeared at the farewell party at
the Golf Inn.
John Burtch , an insurance agent and vice president of
American Agency, Inc. specializing in motor transporta-
tion, serves as Respondent 's insurance agent. Continental
Insurance Company, Inc. is the insurance carrier that
writes liability coverage for Respondent.
Burtch testified that for the past 2-1/2 years liability
insurance has been a "difficult market place." According
to Burtch , prior to that time it was a little easier to
obtain . Moreover, according to Burtch, the insurance in-
dustry is very sensitive to the driving records of truck-
drivers, and Continental Insurance has guidelines which
have been enforced with respect to Respondent, whether
the accident occurs on private property or on public
thoroughfares.
Burtch testified that he visits Respondent 's terminal
approximately once every 6 weeks but he continues a
weekly dialogue with Respondent 's representatives as
part of their monitoring of employee driving records.
Furthermore , Respondent reports accidents and viola-
tions to him by telephone and thermofax . Respondent is
regularly required to discharge employees or take them
off the road and put them in other jobs by virtue of in-
surance guidelines . Documentary evidence reflects the
number of drivers removed since January 1, 1986, and
that Carpenter's driving record was outside of Continen-
tal's parameters.
Continental's guidelines specifically state that, "a
driver is unacceptable if the driver's accident /violation
history in the last three years inter alia consists of any
combination of accidents and moving violations which
total 4. All accidents must be included in the above de-
termination both at -fault and not at-fault accidents."
Record evidence reflects that between October 4, 1984,
and May 29 , 1987, Carpenter had five accidents and a
traffic violation . The last accident cost Respondent over
$31,000 in repairs . On June 4, 1987 , Carpenter hit a vehi-
cle while backing into the loading dock which cost Re-
spondent $922.89.
Larry Roberts testified that there were many good
drivers who lost their employment or driving privilege
because of their records over the last year . That is the
year that Carpenter, Schwede, and Burras were terminat-
ed or taken off the road . He testified further that Re-
spondent 's insurance premium amounts to some $30,000
per month. '
It is the responsibility, according to the testimony of
Respondent 's insurance agent , Burtch, to make sure that
Respondent 's liability coverage is not canceled . On June
1, 1987, Burch wrote to Larry Roberts advising him that
Carpenter's driving record did not meet Continental's
guidelines , therefore as of the date he received the letter
Carpenter would no longer be covered by insurance. On
June 8 , according to the testimony of Tom Roberts, he
told Carpenter that he was being fired because Respond-
ent had received a letter from the insurance company.
The letter alluded to Carpenter 's driving record and ad-
vised Respondent that Carpenter would no longer be
covered by insurance . Another letter was written by
Larry Roberts to Tom Roberts advising him that he
must comply with the advice given by the insurance
agent and Carpenter must be terminated immediately.
Tom Roberts testified that 2 months prior to Carpen-
ter's discharge , Carpenter advised Roberts that he in-
tended to resign and gave him 2 weeks' notice . Later he
went back to Roberts and said it would take a little
longer, but that he was definitely resigning when a job
opened up in the State of Michigan. Moreover, Respond-
ent's Exhibit 24 reflects that on two occasions in the
past, Carpenter had resigned, apparently for no reason,
and had not given Respondent any notice.
4 Swisher testified that union cards were left laying on the bar.
1172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. Jerry Schwede
As with Carpenter , Schwede did not appear at the
hearing to testify in his own behalf. The record discloses
a complete dearth of evidence that Schwede engaged in
any union or concerted activity . Respondent 's witnesses
testified that Schwede was discharged on June 11, be-
cause of his objectionable driving record . Respondent's
Exhibits 32-36 reflect that Schwede's accidents and driv-
ing violations exceeded the guidelines set forth by the
Continental Insurance Company. As late as June 5,
Schwede backed into the terminal dock and scraped the
side of another vehicle, finally resulting in Burtch's June
9 cancellation of his insurance.
Tom Roberts testified that because of customer com-
plaints from Cleveland, Ohio, Schwede was not the kind
of driver that Roberts was anxious to retain.
3. Ralph Fred Burras
On August 15, 1986, Burras was relieved from driving
because of his uninsurable driving record . So as not to
terminate Burras, Respondent employed him as a me-
chanic . Respondent 's Exhibit 1 reflects that over a 5-
month period of time he completed over 150 work
orders.
On May 8, Burras was terminated for hot rodding in a
company truck . He admits that this was before he had
even heard of Teamsters Local 20 . After a 3-day suspen-
sion , he was returned to work.
Burras testified that on June 8, 1987 , at 9:30 or 9:45
p.m., he called Tom Roberts on the telephone . He testi-
fied that he had found out that Roberts had fired Stewart
Swisher and Robert McIntosh , "he didn't really fire him,
he laid him off and agreed to pay him his unemployment
and his vacation pay." According to Burras he wanted
the same as what Stewart was receiving and he couldn't
work "knowing that the other drivers felt the way they
did against us, because we, as a group , are friends. I
mean , what's the sense of working if you can't have
friends at work , right?"
Burras testified further , "I asked him, I says, 'I don't
feel I can work knowing what the other drivers feel
toward all of us about this union deal , and I want-I'd
like to be laid off and given my unemployment , and ev-
erything like you did Stewart and Bob McIntosh and
Larry Carpenter."
Roberts responded , according to Burras , that he
couldn 't do that because every driver would want it, and
he told Burras that he would have to do what he has to
do. Burras responded that he couldn 't be without a job,
he has a family to feed just like everybody else, and he
wasn 't just going to quit.
On June 11, Continental refused to further insure
Burras because of his driving record . As was done previ-
ously, Respondent again offered Burras employment as a
mechanic . He declined the mechanic's job , choosing un-
employment . Burras avers that he did not know that the
job he was being offered as a mechanic involved the
same duties he performed in 1986, but he admits that no
one ever told him otherwise. Roberts testified that he
told Burras he had the same position , "the same job that
he had before."
On June 16, Burras spoke to Larry Roberts at the ter-
minal and Roberts allegedly stated that he had called the
sheriff's department and had talked to the mayor and
that it would be in the local paper that five men had
"run 150 guys out of a job ." According to Burras, Rob-
erts stated he would call all of the trucks out of the Nor-
walk facility if the men did not refrain from engaging in
union activity . Furthermore, Roberts said that he would
frame Burras by stabbing himself and shooting Burras
and he would swear that Burras was trying to rob him.
Burras testified that he treated it as a joke at which point
Roberts put his leg up on the desk and showed him a
pistol strapped to his leg. Burras stated that he became
frightened and agreed to whatever Roberts wanted. Rob-
erts allegedly handed him $300 which he said was for his
last 3 days' pay and told him to take the money and get
off of his property . Burras asked Roberts if he wanted a
receipt and Roberts said no.
Then Roberts allegedly asked what had started the
union activity , and Burras responded that additional ben-
efits and wages would have discouraged the employees
from engaging in union activity. As Burras was leaving,
Tom Roberts allegedly stopped him and told him that if
he would sign a withdrawal card , or an affirmation that
he would not sign a union card , he would be put back to
work.
Burras filed a complaint with the county sheriffs
office relative to Larry Roberts' "threats." Before Burras
returned to the terminal on June 18, to discuss his return
to work, the chief of police contacted Tom Roberts to
assure that Burras would be in no danger of returning to
the facility . Burras went to the terminal with his wife
and three children and met Tom Roberts.
Tom Roberts again offered Burras the mechanic's job
along with assurances that he would be safe . The sheriff
advised Burras to accept the job but he rejected it.
Burras testified that on June 19, he received a letter
from Respondent (R. Exh . 2). The letter offers Burras a
job in its repair facility and asks that , if interested, he
contact Tom Roberts by Monday , June 22.
Burras turned the job offer down , advising Respond-
ent that he was declining the offer on the advice of his
lawyer. At the hearing Burras admitted that he was
lying, he did not have a lawyer.
Burras called Tom Roberts and advised him he would
not work because he was not qualified for the job. He
also called counsel for the Respondent and told him he
would not work as a mechanic but did not claim he was
unable to perform mechanics functions . Counsel for the
Respondent urged Burras to seek counsel before turning
down the Respondent 's offer of employment and to have
his counsel contact him. Burras did not accept the posi-
tion and apparently did not accept counsel's advice. The
General Counsel 's Exhibit 13 was sent to Burras by
counsel for the Respondent.
On August 17, Burras called the Respondent and ad-
vised that he was going to see his lawyer . He later deliv-
ered a document to Respondent in evidence as General
Counsel's Exhibit 14. In the document he agrees to
return to work with the expressed understanding that the
offer of reinstatement is not substantially equivalent
R & L TRANSFER 1173
work. The document also states, inter alia, that he only
worked on race cars as a mechanic for Respondent.
"Therefore, I will need extensive training to be able to
perform truck mechanic work with any degree of com-
petency."
On August 18, Burras appeared at Respondent 's termi-
nal and took the position that he could not work because
he had no tools. Roberts handed Burras a written reaffir-
mation that this was the same job Burras had performed
previously and therefore no new training was necessary.5
Roberts gave Burras a specific assignment , truck 601,
and told him that all the necessary tools were in the
garage . Burras refused to perform the work, and did not
go to the garage to see if the tools were there.
After August 18, when Burras again refused to work,
union representative Rudnicki told Burras "you might
have made a mistake."
4. Robert McIntosh
McIntosh testified that on the morning of June 6, Tom
Roberts called him and said that he was firing him be-
cause Roberts had already spoken to other employees
and learned that he, McIntosh , Swishe, and Carpenter
were trying to organize a union . Allegedly Roberts told
McIntosh that if he would voluntarily resign as a sign to
his brother Larry, owner of the corporation, that he was
willing to resign rather than to be fired, he would guar-
antee McIntosh 's unemployment and vacation pay and
provide him with a good reference.
On June 7, according to McIntosh , Tom Roberts
phoned him at home and asked that he come to Roberts'
home that evening to discuss his letter of resignation.
Roberts stated that he was going to get to the bottom of
the union matter and find out how it started and how far
it was going to go . Roberts then stated that he would
not let the Union take over, he would close up, and
move the Company and change the Company's name.
McIntosh testified that that evening he went to Rob-
erts' home and spoke with him in the driveway. They
discussed his signing a letter of resignation (also Swish-
er's signing such a letter). Roberts advised McIntosh that
Carpenter would not be eligible to sign such a letter be-
cause he could fire Carpenter relying on an accident that
occurred 2 weeks in the past and that he could use Car-
penter 's driving record against him. Tom Roberts alleg-
edly stated that his brother Larry would not allow the
Union to come into the Company and he would relocate.
Roberts told McIntosh that if he refused to resign he
would be discharged, would not be entitled to vacation
pay, and Respondent would oppose his unemployment
compensation and would furnish a poor work reference.
McIntosh appeared at the terminal on June 8. He testi-
fied "at that time, when we were in his [Tom Roberts']
office, he said he did not want us to quit . He was not
going to fire us, and he did not want us to sign a letter.
He wanted us to go ahead and work that day for him."
McIntosh told Roberts that he would not work unless
Swisher and Carpenter worked. McIntosh admitted that
he would not have worked that day but for the fact that
Roberts agreed to his demand that Carpenter be paid for
the day.
McIntosh testified that on June 9 he appeared at the
terminal and Roberts told him that, after more investigat-
ing, he found out from other employees that McIntosh
was a union organizer and he was going to lay him off
permanently. General Counsel 's Exhibit 8, which is all
but totally illegible, purports to be a voluntary layoff
signed by McIntosh . There doesn 't appear to be any date
or witness signature on the face of the document. McIn-
tosh testified that Roberts did not ask him to sign any-
thing on that morning.
According to the testimony of Tom Roberts , Swisher
and McIntosh came to his office on June 9 and they
wanted to be layed off. "They wouldn't work, and they
still wanted Mr. Carpenter back to work." Roberts testi-
fied that he tried to talk them out of it, work was avail-
able that day , and they were actually scheduled out. He
stated that they would have worked if they had not re-
fused to.
Sometime after June 9, McIntosh received a letter
(G.C. Exh. 7) signed by Tom Roberts telling him that
because of additional layoffs due to insurance problems
in the Company he, Roberts , no longer agreed with
McIntosh's voluntary layoffs . He requested McIntosh to
return to work no later than Friday , June 19, 1987.
McIntosh appeared for work on June 19; however, he
was too late to be sent out on his regular route. Since
there was no immediate work available , Tom Roberts
told him that he would try to find some work later that
day. Roberts testified he made this offer because McIn-
tosh and Swisher made the effort to appear for work.
Roberts called McIntosh later that day to offer him
work, but was turned down . McIntosh called Respond-
ent on the Friday, prior to June 22, and informed Re-
spondent that he was not coming back to work on the
advice of his lawyer . At the hearing McIntosh admitted
that he was lying to Respondent.
On August 11, Respondent 's counsel wrote to McIn-
tosh offering him the opportunity to return to work un-
conditionally to his former driver 's position . McIntosh
returned to work on August 17, and he testified that
Tom Roberts told him he was glad to have him and
Swisher back working.
McIntosh worked for 8 days without incident. He was
assigned a morning route to Cleveland which was the
case prior to his layoff . Tom Roberts, on August 24,
promised McIntosh that an even earlier starting time
would be available in a few days.
McIntosh arrived in the driver's room on August 25,
1-1/2 hours before his regular starting time, and got into
a verbal argument with another driver , Barry Minnick.
There is a dispute over who was the antagonist and
whether Minnick threatened McIntosh . McIntosh
claimed that Minnick threateningly pointed a finger at
him while they argued about the need for a union. It was
stipulated that Barry Minnick6 denied any threat. Only
truckdrivers were in and around the driver's room at
that time and no other driver threatened McIntosh.
5 See R. Exh. 3. 6 If he testified.
1174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Counsel for the General Counsel avers that a dispatcher,
Terry Schnee, heard the event and that he is a supervi-
sor. Creditable testimony reflects that the dispatcher's
job is ministerial and that contact with drivers is princi-
pally by radio . Dispatchers have no authority to transfer,
change routes , grant overtime, or grant time off, keep
time records, layoff, recall , discipline, schedule vacations,
approve or deny pay advances , or hire or fire.
At some point during the argument , dispatcher Schnee
asked McIntosh and Minnick to leave the driver's room.
They left and McIntosh waited in Respondent 's parking
lot for one-half hour until his normal starting time . Stuart
Swisher arrived around 8 : 30 a.m . and he told Swisher
about his argument with Minnick . McIntosh and Swisher
went to the driver's room and found no one there. They
asked Schnee, who was in the dispatcher 's office, to see
Tom Roberts. They advised Schnee that Roberts earlier
promised that Respondent would not tolerate fighting
from anyone. Swisher stated that they would not work
and they were leaving . McIntosh had not inquired as to
his job as he only returned to the premises to pick up his
paycheck . He acknowledges that he was not fired or
layed off and that he knows work was available for him
on that day.
5. Stuart Swisher
To repeat the details of Swisher 's saga would be re-
dundant inasmuch as they substantially track the McIn-
tosh chronicle.
Swisher attempted, over Respondent's objections, to
resign on June 8 and refused to work on June 9. He also
was requested to work on June 19 (G.C. Exh. 11) but re-
fused . He again refused to work on June 22 . After claim-
ing to the Regional Office that he was constructively dis-
charged (G.C. Exh. 12), he was offered unconditional re-
instatement on August 11. Swisher returned to work on
August 17 , and worked until August 24 without incident.
Swisher concedes that the union representative told
him to report to work after Respondent 's recall letter of
June 19.
When Swisher returned to work on August 17 he took
over the same job and the same route he had worked
prior to June 9.
Swisher testified that on August 24, the day before he
walked off the job he worked all day and there were no
problems . He testified further that on August 25 when he
reported to work he saw McIntosh standing in the park-
ing lot beside his car, and asked him what he was stand-
ing there for. According to Swisher McIntosh stated,
"Barry and Bob Wallan sort of cornered me in the driv-
er's room . Barry was telling me I ought to have my ass
kicked." Swisher stated that after complaining to Schnee
he stated that "We'll just leave."
When Swisher encountered McIntosh on the parking
lot, the two drove approximately 200 yards to the termi-
nal.
Swisher testified that he was not fired or laid off and
that work was available.
Swisher alleges that , on August 21, he was threatened
by truckdriver Robert Wallen. There was a discussion
between Wallen and Swisher as to whether Swisher in-
tended to invite members of the Teamsters, whom
Wallen didn 't welcome , to a private party to be held at
Wallen 's home . Wallen allegedly stated that if the Team-
sters' members showed up at his party that there were
guns at the gate and he 's told "the guys" to shoot first
and ask questions later . Swisher told Wallen that talk
was silly . Moreover, they were going to have their fami-
lies at the party, and sometimes innocent people could
get shot . Wallen responded , "I don't really want to have
to fight with you. You got a red beard and I got a red
beard , you're a coon hunter and I 'm a coon hunter."
Swisher allegedly responded , "Yeah, I got better dogs
than you got."
Harcar was present but made no "threats ." Counsel
for the General Counsel alleges that he is a supervisor
within the meaning of the Act. Harcar is a dispatcher
who spends a substantial amount of time driving a truck.
Robert Jackson , a truckdriver , testified that on June 6,
between 9 and 11 a .m., he was asked by Tom Roberts if
he would work the following Monday . This was a tele-
phone call to his home, Jackson works nights. He testi-
fied that Roberts stated "they was getting ready to fire
three drivers over what took place down at the bar the
night before . And I told him that he was making a mis-
take-not to do that." According to Jackson , Roberts
did not name the drivers.
Nor did Roberts tell him what had gone on at the bar
the night before. "All he said was what was going down
at the bar the night before, and I had already heard what
was going on at the bar the night before."
When asked his response , Jackson testified, "Well, I
told him , he oughtn't fire them; that if he left them
drunks alone , Monday morning they would forget all
about what they talked about Friday night."
Jackson testified that he did not work on Monday be-
cause as far as he knew they were back to work on
Monday.
B. Allegations of Independent Violations of Section
8(a)(1) of the Act
The record reflects that no evidence was adduced to
prove most of the independent allegations of violations
of Section 8(a)(1).
The following is a review of the testimony relating to
the 8(a)(1) allegations of the complaint.
McIntosh testified that during the early morning hours
of June 6, at the terminal parking lot , Tom Roberts
asked him, Swisher , and Burras who were also present
how the union meeting went . Swisher and Burras con-
firmed this . According to Swisher's testimony Roberts
also stated that Larry (his brother) wouldn't let the
union in and "there's no way we will go union ." Roberts
allegedly also stated that the terminal would be closed if
it went union.
McIntosh testified that Tom Roberts called him at ap-
proximately 11 a.m. on Saturday morning June 6, and
told him that he was fired due to trying to organize a
union . Roberts allegedly stated that he would rather
have McIntosh sign a letter of resignation , it would show
his brother that he was willing to quit rather than to be
fired , and that he, Roberts, would guarantee McIntosh
R & L TRANSFER 1175
unemployment , vacation pay, and a good work refer-
ence.
McIntosh testified that on Sunday morning , June 7,
Roberts again called him between 10 a.m. and noon at
his home . Roberts wanted McIntosh to come to his
home, at 6 p .m. that Sunday evening . Roberts allegedly
stated that he was going to get to the bottom of the
union matter and find out who started it and how far it
was going to go, he was not going to let the Union take
over and he would move the Company , close up, and
change its name.
According to McIntosh when he got to Roberts'
house, Roberts told him he was going to have Swisher
sign a .letter of resignation . With respect to Carpenter, he
was not going to have him sign a letter , and he was not
going to let him work . Allegedly Roberts stated he was
going to use a trailer incident that happened 2 weeks
prior thereto to keep Carpenter from coming back to
work. He was going to use his driving and accident-
record against him. Furthermore , Roberts allegedly told
McIntosh that his brother would not let a union take
over the Company, that they would relocate and then
move out of Norwalk.
McIntosh testified that during the conversation at
Roberts' home , Roberts wanted him to sign a letter of
resignation . McIntosh allegedly told Roberts that he
would have to think about it because everything had
happened too quickly. During the same conversation, ac-
cording to McIntosh, Roberts told him that if he did not
sign a letter of resignation he would be discharged. He
would not be entitled to his vacation pay, Roberts would
fight his unemployment compensation , and he would re-
ceive a bad work reference . Roberts also allegedly stated
that he would deny the conversation if approached by a
union official , a lawyer , or whomever.
McIntosh testified that he went to the terminal on
June 15 where Tom Roberts and his brother Larry Rob-
erts were present . According to McIntosh, Larry Rob-
erts called him into the office and shut the door. Larry
Roberts introduced himself and allegedly asked McIn-
tosh to sign a voluntary layoff slip and gave him $500 in
cash . Roberts allegedly told McIntosh that he, Roberts,
and the mayor of Norwalk were personal friends and he
had a personal guarantee from the mayor of Norwalk
that if the employees did not refrain from union activity
the mayor guaranteed that the employees would not
hold a job within a 50-mile radius of Norwalk. Further-
more, that he would "print the five drivers behind this
episode in the newspaper," that the employees shut
down R & L in Norwalk which was going to put 150
people out of work. Roberts allegedly then stated "I
swear on my kid's lives, I will not lose R & L to a
union." He also allegedly stated that he would kill for
the Company.
McIntosh testified that between August 17 through 25,
Tom Roberts kept telling him that he didn 't appreciate
his job because he was wearing a Teamsters hat and T-
shirt.
He told McIntosh that if he was going to work he
should abide by the rules and wear a company shirt and
hat. Then, apparently Roberts told McIntosh that if he
wore the R & L shirt he could go ahead and wear the
Teamsters hat.
McIntosh testified that on the morning of June 9,- Tom
Roberts told him he was laying him (McIntosh) off be-
cause he was a union organizer.
Swisher testified that at the early hour discussion, at
the terminal lot on June 6, Tom Roberts accused him
and others of being ringleaders and Roberts "as going to
have to fire me because of the union activity."
Swisher also testified similarly to McIntosh that both
Tom and Larry Roberts asked him to resign and sign a
letter of resignation , and that Larry Roberts gave him
$500 in cash when he resigned.
Swisher testified that on June 12, when he went to
pick up his final paycheck and was alone with Tom Rob-
erts, Roberts allegedly stated , "we're already getting set
up for this. Its already starting to cost us money." Swish-
er testified , "he [Roberts] showed me a telegram of
where they had some kind of call forwarding to where
they could forward the calls to another location in case
they had to close this terminal , over the union."
Swisher testified that on June 16 or 17, Larry Roberts
told him that the Company would not go union, he
would give it to his daughter , and that if the guys kept
pushing it he would have TV coverage and newspapers
out there. Roberts allegedly stated that he would have
them taking pictures of 50 some trucks rolling out of the
gate and "us" laughing it up . Furthermore , according to
Swisher , Roberts stated that he would have it on the
front page of the paper that 5 men put 150 people out of
work. He also allegedly stated that the mayor of Nor-
walk had given him his personal guarantee that if the
employees didn't drop this they wouldn 't hold a job
within a 50-mile radius of Norwalk again . According to
Swisher Roberts stated , "this is your word against mine,
and if you do tell it, I wouldn't admit to it."
Burras testified that when he went to work on June 8,
he walked into the breakroom where there was a sliding
glass window into the office of Tom Roberts. He saw
Tom Roberts talking to Bob Tosher and Steve Richard-
son, both are truckdrivers. According to Burras he,
Schwede, and Wallan walked over and through the door
into Tom Roberts' office. Tom was allegedly telling the
drivers, "If you get a union in here or try and push a
union in here Larry will close the door immediately, he
is not going to lose this company because of the union.
We came out of Cleveland because of that, and we're
not going to lose this company here."
Burras testified that, on June 16, he was confronted by
Larry Roberts whom he had never met before . Roberts
allegedly told him that it would be in the papers that 5
men have run 150 employees out of a job , and that
they'd pull the trucks out of there on Saturday if the
men didn't quit insisting the Union get in there . Burras
allegedly stated that all the men wanted was more secu-
rity in their jobs. Roberts stated he had called the sher-
iff's office and talked to the mayor . Swisher testified that
Roberts stated that he would pull a knife out of his
pocket, stab himself, and shoot Burras, then swear Burras
tried to rob him. Furthermore he would deny ever
saying that Roberts allegedly threw his leg up on the
1176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
desk and showed him a pistol that was strapped to the
inside of his leg.
Sometime later that same day, as Burras was leaving,
he testified that Tom Roberts stopped him and told him
that Larry thought he was a good man, Larry wants him
to sign a withdrawal card and he would be put back to
work. According to Burras Tom Roberts stated that
Larry Roberts thought Burras was worth keeping.
Burras responded that he told Tom Roberts he would
have to think about it.
As referred to earlier, Robert Jackson testified that he
had a telephone conversation with Tom Roberts, where-
in Roberts allegedly stated "they were getting ready to
fire three drivers over what took place down at the bar
the night before."
IV. CONCLUSIONS AND ANALYSIS
As a starting point , the evidence firmly establishes that
none of the alleged discriminatees was aware of any
union organizational activity prior to the June 5 going
away party for employee Gilbert, at the Golf Inn Bar.
The same can be said of Respondent although evidence
of Respondent 's knowledge occurred some hours later,
in the early morning of June 6.
Moreover, and of considerable significance , is that
when the party ended , so did any union activity. There
is no evidence that any employee signed or distributed
any union authorization cards . Indeed the testimony of at
least one discriminatees is that what union cards were
available were left on the bar at the Golf Inn. Further-
more , it has been firmly fixed by the General Counsel's
witnesses that they had no idea that union representa-
tives would even be in attendance at the party.
I believe that there was a lot of alcohol consumed by
the alleged discriminatees and others at the party over a
protracted period of time . I question their sobriety when
they encountered Tom Roberts on June 6.
Two irrefutable facts which I consider relevant are
that this Respondent has been in business 20 years and
has experience , "I've had a Teamsters union trying to or-
ganize us a 1 ,000 times ." Moreover, to my knowledge
there is no history of unfair labor practices.
A. Carpenter
Carpenter did not appear at the hearing to testify in
his own behalf. I am convinced by the uncontroverted
evidence that he was terminated because Continental In-
surance Company canceled liability on Carpenter. I have
earlier discussed in detail the facts surrounding Carpen-
ter's voluntary layoff, and his driving record is in evi-
dence.
Respondent has fully met its burden in establishing and
demonstrating that it would have fired Carpenter absent
the voluntary layoff, and absent any union or protected
concerted activities . Wright Line, 251 NLRB 1083 (1980),
enfd . 662 F .2d 899 (1st Cir . 1981). Accordingly, I will
recommend dismissing the 8(a)(3) allegation relating to
Carpenter.
B. Schwede
Schwede also did not appear to testify. Furthermore,
he was discharged as the result of his unsatisfactory driv-
ing record. Insurance Agent Burtch's testimony and doc-
umentary evidence stand irrebuttable that this was Re-
spondent's sole motivation for terminating Schwede. The
last incident occurred on June 5, giving rise to cancella-
tion by Burtch on June 9. Wright Line, supra.
Thus I will recommend dismissal of the 8(a)(3) allega-
tion with reference to Schwede.
C. Burras
Suffice it to say that a repetition of the facts and cir-
cumstances encompassing the severance of his relations
with Respondent would only serve to protract this deci-
sion and postpone the inevitable. Burras admitted that he
lied and falsified company records . Counsel for the Gen-
eral Counsel argues that this is a reason for crediting him
because he "emerges as intensely honest under oath.
Burras told the whole truth." This would be a vital argu-
ment if I hadn 't viewed Burras in the flesh on the wit-
ness stand . Burras had an attitude , affectation might be a
better word. Burras considered work as a social outing.
"I mean, what's the sense of working if you can't have
friends at work, right?"
Another example of his credibility is his excuse that he
was afraid to work. This from a man who broke his
brother's jaw a week earlier . A man who prides himself,
..you put your hands on me , and I'm either going to get
whipped or I'm going to beat the shit out of somebody
else. Simple as that."
In my view, Burras prevaricated and distorted with a
view to compensation without working for it. I discredit
his testimony where it conflicts with the testimony of
Respondent's witnesses.
After refusing the mechanic 's job, a job he had per-
formed in the past , he complained that he was incapable
of functioning in that position . Thereafter Respondent
notified Burras that the job offer was the exact position
he held in 1986, but Burras was determined not to work.
Thereafter, on August 18, Burras arrived at the termi-
nal with a justification for not working, he had no tools.
Tom Roberts gave him a specific assignment, truck 601,
and told him the tools were in the garage. Burras was
not to be deterred-he didn't even bother going to the
garage.
In my view the initial action by Respondent, i.e., re-
moving Burras from driving duties, was a business neces-
sity precipitated by the insurance company and nothing
else. By contrast, Burras' sole motivation was to make a
case of illegal discrimination . I agree with union repre-
sentative Rudnicki 's statement to Burras , "you might
have made a mistake."
Accordingly I will recommend that the 8 (a)(3) allega-
tion relating to Burras be dismissed.
D. McIntosh
McIntosh admits that he initially refused to work on
June 8 because Carpenter was not reinstated . He only
R & L TRANSFER
agreed to work that day when Tom Roberts agreed to
pay Carpenter for the day.
On June 9, McIntosh again refused to work because
Carpenter had not been reinstated . Then he signed a vol-
untary layoff for June 9 . On June 16, he was sent a letter
requesting his services because Schwede and Burras
were removed from driving and Respondent needed
drivers.
On June 19 , he refused work later in the day.
He refused to work on his regular route on June 22.
He stated to Respondent that this was on advice of coun-
sel. On the witness stand he admitted he had lied to Re-
spondent . For some inexplicable reason the witness stand
seems to give the General Counsel 's witnesses (Burras
and McIntosh) religion . I view McIntosh as an incredible
witness.
McIntosh returned to work on August 17, again in re-
sponse to another invitation , absent the engraving. Ap-
parently Tom Roberts was glad to have McIntosh and
Swisher back, at least he expressed as much . McIntosh
worked for 8 days without event.
On August 25, there occurred what in my view was a
minor, verbal controversy . It was enough of a trigger,
McIntosh would have us believe , for him to walk off the
job again . I don 't believe it. Although I conclude that
McIntosh is one the most sensitive truckdrivers that I
have ever encountered , I'm obligated to recommend that
the 8(a)(3) allegation with reference to him be dismissed.
E. Swisher
As stated earlier the facts surrounding Swisher's situa-
tion parallel McIntosh 's scenario.
Swisher also returned to work on August 17 and along
with McIntosh left the job of his own accord on August
25.
Swisher concedes that the union advised him, "they
told me I should report to work , that if I didn 't report to
work , that it'd show I didn 't want to work there." I
agree , he didn 't want to work there.
Significantly when Swisher returned to work on
August 17 , he resumed his exact route.
Upon returning to work , he met McIntosh who related
the details of his argument with Minnick.
I am convinced that Swisher and McIntosh were look-
ing for any excuse not to work.
Swisher 's additional excuse for not working was his
discussion with driver Wallen regarding the private
party to be held at Wallen's home . I have related the de-
tails of that earlier.
The presence of any of the dispatchers during any of
the events are of no consequence . In my opinion they are
not supervisors within the meaning of the Act. More-
over, there were no threats for them to either disavow
or condone. Furthermore, Swisher admits that no one
other than Wallen "threatened" him.
Swisher impressed me as a witness prone to fabrication
who invented a myriad of reasons why he was unable to
work . His demeanor evidenced a lack of certitude and in
my view his singular intent came through clearly. He
wanted to concoct a scenario of unfair labor practices. In
my opinion he shared this motivation with Burras and
McIntosh . I specifically discredit the testimony of Swish-
1177
er where it conflicts with the testimony of Respondent's
witnesses.
Accordingly, I will recommend that 8 (a)(3) allegation
as it relates to Swisher be dismissed.
F. The 8(a)(1) Allegations
I have sufficiently discussed my opinion of the credi-
bility of the alleged discriminatees.
By way of contrast , Tom and Larry Roberts testified
in a forthright manner . They each made a sincere effort
to recount accurately . Larry Roberts was articulate and
detailed in his testimony . Tom Roberts was unequivocal
and evidenced and assuredness in his testimony.
It is my opinion that Tom Roberts exceeded the
bounds of legality on the terminal parking lot in the
early morning of June 6. He denied making "threats." I
believe in his thinking , and in the context of the discus-
sion , he didn 't view his words as threatening . I believe
he engaged in creating the impression of surveillance and
interrogation . I am also of the view that Roberts lost his
temper and threatened plant closure . Accordingly I will
recommend a remedy for these violations of Section
8(a)(1) of the Act.
I also conclude that the 8(a)(1) activity began and
ended during that 1-hour interval on the parking lot.
Much of the testimony of the alleged discriminates
defies logic . I do no believe that Larry Roberts asked
them to sign voluntary layoff documents when on that
very day they were being offered jobs . Larry Roberts
didn 't even know these people . At the time they were
not even in Respondent 's employ.
Why would Larry Roberts threaten people who were
no longer in Respondent 's employ? In my opinion he did
not engage in said activity . I don 't believe he threatened
Burras, a much larger man. Moreover, Burras' violent
proclivities are common knowledge . After threatening to
kill Burras, I'm supposed to believe that Larry Roberts
in his next breath offered Burras a job . I don 't believe it.
Where are all the receipts for the cash which Larry
Roberts so generously handed out. I find it difficult to
believe that a businessman of over 20 years experience
didn 't ask for receipts.
No evidence was adduced for most of the 8 (a)(1) alle-
gations appearing in complaint.
Tom Roberts denied that alleged events, conversa-
tions, and meeting ever occurred.
He denied telling anyone that they were going to be
fired . He denied asking anybody for a resignation. He
denied talking to McIntosh on the telephone. He denied
having a face-to-face meeting with Swisher on June 6.
He admitted calling Swisher on the telephone but he tes-
tified that he did not fire anybody on that day. He
denied threatening plant closure . He denied the conver-
sation with Jackson by telephone . He denied meeting
with McIntosh at his home, and testified positively that
McIntosh had never been to his home . I credit the deni-
als of Tom Roberts, with the exception of where I have
found the violations of Section 8(a)(1).
Accordingly I will recommend that the 8(a)(1) viola-
tions alleged , other than the ones I have found violative,
be dismissed.
1178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I specifically discredit the testimony of Robert Jackson
wherein he relates a telephone conversation between
himself and Tom Roberts . Moreover even if believed the
conversation was rather nebulous with respect to the ter-
mination of three unnamed drivers.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section (2), (6), and (7) of the
Act.
2. The union is a labor organization within the mean-
ing of Section (2)(5) of Act.
3. By creating the impression of surveillance , Respond-
ent has engaged in conduct in violation of Section 8(a)(1)
of the Act.
4. By interrogating employees with respect to their
union activities or the union activities of other employ-'
ees, Respondent has engaged in conduct in violation of
Section 8(a)(1) of the Act.
5. By telling employees that the Norwalk terminal
would be closed rather than risk unionization at the Wil-
mington facility , Respondent has engaged in conduct in
violation of Section 8(a)(1) of the Act.
6. The allegations of the complaint that Respondent is
engaged in conduct violative of Section 8(a)(3) and other
conduct violative of Section 8(a)(1), independently, of
the Act, have not been supported by substantial evi-
dence.
7. 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 within the meaning of Section
8(a)(1) of the Act, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed7
ORDER
The Respondent, R & L Transfer, Inc. and Poe Unlim-
ited, Inc., Norwalk, Ohio, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Creating the impression of surveillance of the em-
ployees union activities.
T If no exceptions are filed as provided by Sec . 102.46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall, as provided in Sec . 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
(b) Informing employees that a terminal would be
closed rather than risk unionization.
(c) Interrogating employees regarding their union ac-
tivity and/or the union activities of other employees.
(d) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action necessary to
effectuate the policy of the Act.
(a) Post at its terminals at Wilmington and Norwalk,
Ohio, copies of the attached notice marked "Appen-
dix."a Copies of said notice to be furnished by the Re-
gional Director for Region 8, after being signed by Re-
spondent 's authorized representative shall be posted im-
mediately on receipt and maintained for 60 consecutive
days in conspicuous places including all places where no-
tices to employees are customarily posted. Respondent
shall take reasonable steps to ensure that said notices are
not altered , defaced , or covered by other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps have been
taken to comply.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not spe-
cifically found herein.
8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT create the impression of surveillance of
employees union activities.
WE WILL NOT tell employees that we will close any
terminal rather risk unionization.
WE WILL NOT interrogate employees about their union
activities or the union activities of any other employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
their rights guaranteed them by Section 7 of the Act.
R & L TRANSFER , INC. AND POE UNLIMITED, INC.