Williams Motor Transfer, Inc.

National Labor Relations Board - Board DecisionsJul 29, 1987

284 N.L.R.B. 1495 (N.L.R.B. 1987)

1496 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Williams Motor Transfer, Inc. and David J. Larose, Sr. and Chauffeurs, Teamsters, Warehousemen & Helpers, Local No. 597, a/w International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America Arnie Bellavance & Sons Incorporated and Chauf- feurs, Teamsters, Warehousemen & Helpers, Local No. 597, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and David J. Larose, Sr. Cases 1-CA-23199, 1-CA-23271, 1-CA- 23708, and 1-CA-23741 29 July 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, BA13SON, AND STEPHENS On 28 November 1986 Administrative Law Judge Marion C. Ladwig issued the attached deci- sion. Both the General Counsel and the Respond- ent filed exceptions and both supporting and reply briefs. 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,' and conclusions, as modified, and to adopt the recom- mended Order as modified. 1. The Respondent has excepted to the judge's conclusion that it violated Section 8(a)(1) of the Act through the statement of the Respondent's president, Barquin, to Roland Bellavance, over- heard by employee Achilles, to the effect that "before the Union would come in he would sell the trucks and hire brokers. . . to deliver granite." In adopting this conclusion of the judge, we note that Achilles was credited and that Barquin did not clearly deny during his testimony that he made the statement described by Achilles. Nor did Barquin assert that he used words other than those remem- bered by Achilles. Further, although Bellavance testified, he was not asked about his recollection of Barquin's alleged threat. We additionally note, with respect to the finding of an 8(a)(1) violation, that the Respondent presented no evidence that it was considering the sale of its assets for lawful reasons at the time Achilles overheard Barquin's statement. 1 The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Thy Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 284 NLRB No. 138 Nor could Barquin have known, at that time, whether or not the Union would win the upcoming election. Accordingly, it is clear that Barquin was not merely referring to the intended timing of a sale of its business but rather to a plan to sell the business if the Union won the election. Under these circumstances, we agree with the judge that Bar- quin's statement was not ambiguous and indeed may reasonably be interpreted as having a tenden- cy to interfere with the free exercise of employee rights under the Act. See El Rancho Market, 235 NLRB 468, 470-471 (1978). 2. In adopting the judge's determination that the Respondent violated Section 8(a)(3) by discharging employee LaRose, we disavow his reliance on the statements of Lura Bullard, an office clerical em- ployee, to Richard Gorman inasmuch as the Gen- eral Counsel has failed to establish her agency status with respect to such remarks. See, e.g., Abbey Island Park Manor, 267 NLRB 163 fn. 1 (1983). Additionally, with respect to the allegation that the Respondent violated Section 8(a)(3) by termi- nating LaRose, the Respondent argued, inter alia, that its action was based on a good-faith belief that LaRose was at fault in four separate incidents of damage to two of its trucks. In this regard, we note LaRose's credited testimony that he warned his su- pervisors about mechanical problems with trucks 12 and 15 before each of three of these incidents occurred. We further emphasize LaRose's testimo- ny that the two incidents of mechanical failure and resulting damage to truck 12 were caused by the faulty maintenance and repair work of the Re- spondent's mechanics. The Respondent did not spe- cifically refute this testimony but contends in its ex- ceptions that LaRose's alleged lack of formal train- ing and experience as a mechanic render his testi- mony on this point not credible. We agree with the judge, however, for the reasons stated by him, that the Respondent's rebuttal evidence was not credi- ble and note, as did the judge, that LaRose had owned his own tractor-trailer from 1979 to 1983 and had performed his own mechanical work. Moreover, no evidence was presented concerning whether any of the Respondent's mechanics were reprimanded or disciplined for their part in causing the equipment damage. These facts provide addi- tional support for the judge's determination that the Respondent did not terminate LaRose because of a good-faith belief that LaRose was abusing its equipment. In this context, we find it unnecessary to rely on the judge's observation that Barquin would have discharged LaRose immediately, rather than risking further losses during the 2-week notice WILLIAMS MOTOR TRANSFER 1497 period, if he had a "good faith belief' that LaRose was abusing equipment. 3. Finally, we concur with the judge's conclu- sion that Arnie Bellavance & Sons (Bellavance) is not the Respondent's successor for the purpose of remedying the Respondent's unfair labor practices. See Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973); Perma Vinyl Corp., 164 NLRB 968 (1967). We nonetheless disavow the judge's reli- ance, in this context, on findings that Bellavance's purchase of the Respondent's business was merely a "consolidation" of the operations and that the Respondent's business "was not continued as a sep- arate employing enterprise." As the Supreme Court recognized in Golden State Bottling Co., supra at 183 fn. 5, the Board need not distinguish among mergers, consolidations, and purchases of assets in applying the doctrine of successorship, but will rather focus on whether there is a substantial conti- nuity in the employing enterprise. This principle was recently reiterated in Great Lakes Chemical Corp., 280 NLRB 1131 (1986). As set forth by the judge, the facts here do not establish such continui- ty.2 4. Both parties have excepted to the judge's rec- ommended remedy. The Respondent asserts that the make-whole remedy should be tolled as of the date on which its operations ceased. The General Counsel contends, inter alia, that contrary to the judge's recommendation, the Order should contain a provision for LaRose's reinstatement and the make-whole remedy should not be tolled by LaR- ose's securing of substantially equivalent employ- ment with another employer. In this regard the General Counsel contends that, although Williams Motor Transfer, Inc. has ceased operations, "Wil- liams" has other operations that continue to func- tion and may be liable for remedying the unfair labor practices. The General Counsel also argues that the "probabilities" are that LaRose would have been hired by Bellavance, which bought the Respondent's trucking operation. Unlike Daniel Construction Co., 276 NLRB 1093 (1985), cited by the General Counsel, however, the record here does not establish that the Respondent has estab- lished a practice of transferring its employees from one of its operations to another or that the "over- whelming probability" is that LaRose should have 2 In agreeing that successorship within the meaning of Golden State was not established, we rely on the absence of several factors and not simply on the fact that Respondent's employees did not form a majority in the Bellavance work force. See St. Marys Foundry Co., 284 NLRB 221 fn. 4 (1987). Where, as here, the predecessor's employees forni a very small percentage of the purchaser's work force and there is no showing that supervision or daily workmg conditions are the same, it cannot be said that the "employees who have been retained will . view their job situations as essentially unaltered." Golden State Bottling Co., supra at 184. See also Fall River Dyeing Corp., 107 S.Ct. 2225 (1987). been hired by Bellavance if he had not been dis- charged by the Respondent. Additionally, the Gen- eral Counsel has not established that any other em- ployer is liable as an alter ego or single employer with the Respondent. The General Counsel none- theless correctly asserts that questions concerning the status of the Barquins' ongoing business oper- ations as alter egos, single employers, or successors responsible for remedying the Respondent's unfair labor practices may be raised at future compliance proceedings. See, e.g., Hopkins Hardware, 271 NLRB 175 (1984); Southeastern Envelope GO., 246 NLRB 423 (1979); Coast Delivery Service, 198 NLRB 1026 (1972). Neither the General Counsel's failure to present evidence concerning these issues, nor our rejection of her contention as to Bella- vance's alleged successorship, precludes the litiga- tion of other derivative liability questions at the compliance stage. See Bell Co., 243 NLRB 977 (1979). We thus leave it to the backpay proceeding to address these unresolved matters that may affect the reinstatement rights of LaRose or the appropri- ate scope of the backpay period. We shall accord- ingly modify paragraph 2(a) of the recommended Order, as well as the notice. See Hopkins Hardware, supra. In the event that the General Counsel fails to prove, at the compliance stage, that either the Bar- quins' current business operations or other business- es bear derivative liability for the Respondent's unfair labor practices, the Respondent will be re- quired to make LaRose whole for any loss of earn- ings and other benefits he may have suffered as a result of his discharge, by payment to him of the amount he normally would have earned from the date of his discharge until the date the Respondent ceased operations, less any net interim earnings, plus interest. Correspondingly, if the General Counsel is unable to establish such derivative liabil- ity, LaRose will not be entitled to reinstatement except on the Respondent's resumption of the same or substantially similar operations as previously en- gaged in by the Respondent in Barre, Vermont. See Beech Branch Co., 260 NLRB 907 (1982). ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Williams Motor Transfer, Inc., Barre, Vermont, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(a). "(a) Offer David J. LaRose Sr. immediate and full reinstatement to his former job or, if that job 1498 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other bene- fits he may have suffered as a result of the discrimi- nation against him. Backpay shall be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), and interest thereon shall be computed in the manner prescribed in New Hori- zons for the Retarded."3 2. Substitute the attached notice for that of the administrative law judge. 3 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest will be computed at the "short-term Fed- eral rate" for the underpayment of taxes as set out in the 1986 amend- ment to 26 U.S.C. § 6621. Interest on amounts accrued prior to 1 January 1987 shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). 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 ordered us to post and abide by this notice. WE WILL NOT discharge or otherwise discrimi- nate against any of you for supporting Chauffeurs, Teamsters, Warehousemen & Helpers, Local No. 597, or any other union. WE WILL NOT threaten to discharge our employ- ees if they vote for the Union. WE WILL NOT in any like or related manner interfere with, restrain, or, coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer David J. LaRose Sr. immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest. WE WILL remove from our files any reference to the discharge of David LaRose Sr. and WE WILL notify him in writing that this has been done and that the discharge will not be used against him in any way. WILLIAMS MOTOR TRANSFER, INC. Earl Wilson and Paul 1. Kingston, Esqs. (Kingston & Asso- ciates), of Boston, Massachusetts, for the Respondents. DECISION STATEMENT OF THE CASE MARION C. LAD WIG, Administrative Law Judge. These cases were tried at Barre, Vermont, on 20-21 August 1986. The charges were filed by David LaRose on 18 September 1985 1 (amended 5 November) and 11 April 1986 and by the Union on 18 October and 3 April 1986. The consolidated complaint was issued 4 June 1986. The primary issues are: (a) whether Brian Barquin, president of Respondent Williams Motor Transfer (Wil- liams), unlawfully coerced the employees during the union organizing campaign by threatening to discharge the drivers if they voted for the Union and by stating that driver LaRose's union activity was a reason for his discharge; (b) whether Barquin discriminatorily dis- charged LaRose and unlawfully caused a laid-off em- ployee not to accept employment in violation of Section 8(a)(1) and (3) of the National Labor Relations Act; and (c) whether Respondent Arnie Bellavance & Sons (Bella- vance) is liable as a successor. On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondents, I make the following FINDINGS OF FACT I. JURISDICTION Both Williams and Bellavance were corporations en- gaged as motor freight carriers in the interstate transpor- tation of granite and building products from their facili- ties in Barre, Vermont, where they each annually provid- ed services valued over $50,000. They admit that they were Employers engaged in commerce within the mean- ing of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. IL ALLEGED UNFAIR LABOR PRACTICES A. Coercion of Employees 1. Barquin's discharge threat Driver George Achilles testified that in May (after the union organizing began) he was in the office lining up the paperwork for a load of granite when he overheard a conversartion in the next room. He saw Brian Barquin, president of Williams, talking with Roland Bellavance, the treasurer of the company that later purchased the business. (Tr. 45-46, 56-64, 69; R. Exh. 1.) He heard Barquin tell Roland Bellavance that "before the Union would come in he would sell the trucks and hire brokers, that's leased trucks, to deliver the granite." (Fr. 46.) When asked on cross-examination about his understand- Michael T Fitzsimmons, Esq., for the General Counsel. 1 All dates are in 1985 unless otherwise indicated. WILLIAMS MOTOR TRANSFER 1499 ing of "what Mr. Barquin was intending by this state- ment," Achilles answered that Barquin "was going to hire brokers to haul granite if we voted for the Union. . . . I understood that it meant that he was going to get rid of the trucks and hire brokers to deliver the granite. . . . before he would own a unionized business." (Tr. 73-74, 76.) When asked if he understood Barquin to mean that he would fire the drivers, Achilles answered: "Well, that would be the outcome. What would be the point of have twenty drivers if you're not going to have anything for them to do." (Tr. 72-73.) Roland Bellavance was not questioned on the stand about this conversation. When President Barquin testified as a defense witness he admitted he "could possibly have" had a conversation with Roland Bellavance in May, but claimed "I don't remember any conversation" and answered, "I don't believe so" when asked by the Williams' counsel if he could have made a statement that he would be closing down before the Union came in. (Tr. 154.) (Barquin's credibility is discussed later.) I credit driver Achilles' testimony about the conversation. (Achilles impressed me by his demeanor on the stand as an honest, forthright witness.) The Respondents contend in their brief (Br. 35-36) that the statement, which "Mr. Barguin denied," is "far too ambiguous to support a finding of threat of dis- charge" and that there was "no evidence that Mr. Bar- quin was aware of Achilles' presence at the time of the alleged statement or that Mr. Barquin intended for Mr. Achilles to hear such a statement. Thus, there could be no threat within the purview of Section 8(a)(1)." To the contrary I fmd, as driver Achilles made clear when questioned by Williams' counsel on cross-examina- tion, that President Barquin was threatening to discharge the drivers if they voted for the Union. I fmd this situa- tion analogous to an employee's overhearing a conversa- tion between supervisors when the employee is in his workplace performing his normal work functions. Crown Stationers, 272 NLRB 164, 165, 169 fns. 1 & 3 (1984). The Board has long held that whether or not the super- visor intended the coercive remarks to reach the ears of rank-and-file employees, such remarks made "within hearing of employees at work, and actually overheard by one of these employees, constitutes a violation of Section 8(a)(1) of the Act." Ford Radio & Mica Corp., 115 NLRB 1046, 1047 (1956), affd. in relevant part 258 F.2d 457, 460 (2d Cir. 1958). Barquin made no effort to conceal the threatening remark from any driver doing his normal pa- perwork in the office before hauling a load of granite. I find that the threat to discharge the employees if they vote for the Union was coercive and violated Sec- tion 8(a)(1) of the Act, whether or not President Barquin was aware of Achilles' presence and whether or not he intended Achilles to hear the threat. I also consider this threat in determining Barquin's motivation for later dis- charging LaRose, one of the most active union support- ers. 2. Barqufies statement about LaRose's discharge About 29 June (a week after President Barguin dis- charged driver LaRose), driver Achilles spoke to Bar- quin in the parking lot behind the shop and asked where LaRose was. (Tr. 53.) As Achilles credibly testified, Bar- quiz said, "he felt, the company would be better off with him gone as he organized a union. He felt he had orga- nized a union." (Tr. 45.) On cross-examination Achilles credibly testified (Tr. 54): Q. And what did Mr. Barquin tell you? A. That he'd been terminated. Q. Is that all he said to you? A. No. Q. What else did he say? A. He said that he had terminated him because he'd cost him a lot of money and he felt that the business was better off with him gone as he felt he had organized a union. Barquin, who claimed that he had no knowledge of La- Rose's union activity, denied that he even talked with Achilles about LaRose. (Tr. 153-155, 193.) I discredit his denials. The complaint alleges that President Barquin created the impression of surveillance of employees' union activi- ties and implicitly threatened them with discharge by telling an employee that Barquin was aware of LaRose's union activities and that these activities were a reason for LaRose's discharge. In her brief (Br. 11) the General Counsel cites Haynes Motor Lines, 273 NLRB 1851, 1855 (1985), which held that "the Respondent's statements that they are aware of the employees that are pushing the Union, clearly convey to the employees that their union activities are under surveillance and clearly create the impression of surveillance," violating Section 8(a)(1). She also contends that Barquin implicitly threatened Achilles with discharge "by telling him that LaRose's union activity was one of the reasons for his discharge." The Respondent questioned Achilles' credibility, citing President Barquin's denials. I disagree, but I do agree with the further arguments (in their brief at 37-38) that even if Achilles' testimony were credited Barquin did not state that LaRose was fired because of his union ac- tivity, did not threaten to discharge other employees, and did not create the impression of surveillance. His statement that "he felt that the business was better off" with LaRose gone because he felt that LaRose had orga- nized a union did not constitute an actual admission that LaRose's union activity was a reason for the discharge. By merely stating that he "felt" that LaRose had orga- nized a union, Barquin did not necessarily create the im- pression that the employees' union activities were being watched. I therefore find that the allegations that President Bar- quiz created the impression of surveillance and made a discharge threat of this occasion must be dismissed. I find, however, that Barquin's statements reveal at least his suspicion, if not his knowledge, of LaRose's union ac- tivity and belie his denial (Tr. 191) that he had any idea that LaRose was involved in the union organizing. 1500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD B. Alleged Discrimination 1. Against LaRose a. Barquin's awareness of his union activity Driver David LaRose was one of the three most active union supporters. (Tr. 56.) He signed a union au- thorization card 4 May (G.C. Exh. 7) and openly sup- ported the Union, attended several union meetings, and talked in favor of the Union to employees both at work and in their homes. (Tr. 16, 27-28, 36-42.) LaRose did not talk individually with President Bar- quin about the Union or to either of the two other admit- ted supervisors, Foreman Richard Lanphear or Head Mechanic Douglas Bolles. He credibly recalled, howev- er, talking about the Union in front of Bolles on two oc- casions. (Tr. 40) (He appeared to be an honest witness.) The second time was on a Saturday in May or June when several of the drivers were discussing the Union in the shop while their trucks were being repaired. In front of Bolles he asserted "some of the good points," stating that with the Union (Tr. 36-38), we would get the trucks properly maintained. We would probably get paid the breakdown time be- cause we were always breaking down on the road; it was common. The trucks would break down. You could almost bet on it, at least once a week. . . . . [I also said] I thought it would be good because it would get the trucks fixed. We would have safer equipment. We could go down the road with good brakes and know we were going to stop. This time one of the drivers asked Bolles "whether he thought [the Union] was a good thing or not," and "Bolles said he did not want to get involved in the issue." After that, "we did not discuss it again" in front of Bolles "because we felt perhaps he might be on the side of management." (Tr. 27, 41.) Foreman Lanphear was not called to testify. Williams did call Bolles as a defense witness, but it did not ques- tion him about his knowledge of LaRose's union activity. Following LaRose's discharge, office clerk Lura Bul- lard revealed to another employer that Williams did have knowledge of LaRose's union activity. One of her re- sponsibilities was to answer on Williams' behalf when other employers, as required by DOT regulations, in- quired why applicants had been discharged. (Tr. 89-90, 233.) On 12 August (about 7 weeks after President , Bar- quin discharged LaRose) Richard Gorman, owner of Rapid Rubbish Removal (LaRose's present employer), telephoned Williams and asked Bullard about LaRose's discharge. LaRose had stated on his application that he had been fired because of union activity and Gorman asked her if LaRose had been. As credibly testified by Gorman (who impressed me as an honest witness) Bul- lard answered, "that she was not at liberty or could not say that directly, but she felt that [LaRose's union activi- ty] had something to do with" his discharge. (Tr. 221, 223-225, 229.) When called as a defense witness Bullard claimed (Fr. 236) that her answer to Gorman was "that we were going through union activity" but that she denied that LaRose was "fired for his union activity." I discredit her claim that she denied it. (By her demeanor on the stand, she appeared to be less than candid.) I find that office clerk Bullard was acting as an agent in the performance of her duties as , a spokesperson for Williams when she answered Gorman's inquiry, telling him she was not at liberty or could not say directly that LaRose was discharged for union activity "but she felt that it had something to do with it." I therefore find that her answer to Gorman is further evidence that President Barquin was aware of LaRose's union activity when he discharged LaRose. Particularly in view of (a) President Barquin's state- ment to driver Achilles a week after LaRose's discharge that Barquin felt the business was better off with LaRose gone because he felt LaRose had organized a union, (b) Bullard's statement to another employer about her feel- ing that LaRose's union activity had "something to do with" his discharge, and (c) Head Mechanic Bolles' ad- mitted supervisory status and his failure to deny the credited testimony about his overhearing LaRose's orga- nizing efforts in the shop, I infer that Bolles reported LaRose's active union support to Barquin. Contrary to Barquin's denials (Tr. 153, 191), I find that he was aware of LaRose's organizing activity. I discredit his denials. Office clerk Bullard also made statements to driver Achilles both before and after LaRose's discharge about LaRose's organizing for the Union. (Tr. 48, 52, 55-56, 230-233.) I Fuld, however, that the General Counsel has failed to show that Bullard was acting as an agent for Williams when she made these statements. I therefore dismiss the allegations in the complaint that the state- ments violated Section 8(a)(1), and I do not rely on her statements to Achilles in finding that President Barquin was aware of LaRose's union activity. b. Faulty truck maintenance First incident. Tractor-trailer driver LaRose had been employed 2 years, since May 1983. (Tr. 15.) He was as- signed to drive truck 12, which had been driven about 560,000 miles. (Tr. 24.) This was one in Williams' fleet of older trucks, purchased 6 years earlier after a fire in 1979. (Fr. 48, 190-191.) Because of improper maintenance, the engine on this truck had a serious problem that was getting progressive- ly worse. About the last week in April LaRose men- tioned the problem to Head Mechanic Bolles, who looked at the engine, "shrugged his shoulders and walked away." Then Foreman Lanphear looked at it and said, "I know its going to blow, but I need the truck; you've got to go with it anyway." (Fr. 17-18.) This was Williams' busiest time of the year, delivering granite monument stones to the dealers before Memorial Day. (Fr. 187.) LaRose drove the truck as instructed. It broke down on the road and the bearings in the engine seized up. Williams' mechanics then overhauled the engine at an ex- pense of between $11,000 and $13,000. (Tr. 134, 204.) The damage was not LaRose's fault, and no one blamed him for it or said anything to him about the incident. WILLIAMS MOTOR TRANSFER 1501 (Tr. 18.) As indicated above, Foreman Lanphear was not called to testify. Head Mechanic Bolles testified, "I don't recall," but it is "Possible" that LaRose had mentioned the engine problem. (Tr. 216.) Second incident. During the rebuilding of the engine in truck 12, LaRose was assigned to drive truck 15, which had been driven about 400,000 miles. (Fr. 43, 135.) This truck "had a lot of mechanical problems" and had "a loose valve seat that was making a rather loud noise." (Tr. 18.) Before taking the truck out on the day of the incident (about a week or two later) LaRose mentioned to Head Mechanic Bolles that "it sounded awful loud," with "a loud banging noise in it." Bolles responded, "Don't worry about it; it's probably a loose valve seat. It's been this way for pretty close to a year. . . . the worst it can do is fall down between the block and the piston." (Tr. 19.) On that trip the valve seat "did drop down between the block and the piston," saving "the engine because it had two wrist pins which were ready to let go. If the wrist pins had let go, the piston would have gone through the side of the block" (Tr. 19). During the next week Williams made the repairs, costing about $3000 to $4000 (Fr. 136). Again, the damage was not LaRose's fault, and no one blamed him for it or said anything to him about the incident (Fr. 18), Although Head Mechan- ic Bolles first denied that he had any conversation with LaRose about the condition of the truck (Tr. 207), he claimed on cross-examination, "I don't recall," "I don't remember," and "I don't believe" that LaRose had men- tioned the engine problem, but admitted "It is possible" (Tr. 216). (Bolles did not impress me as being entirely candid when testifying.) Third incident. Truck 15 also had a problem with the drive shaft, which "had been cracked for a long time" (Tr. 19). About a week or so after the engine was re- paired, the drive shaft "fmally gave out" on a trip and had to be welded on the road, at a cost of $400 (Tr. 19, 139-140). Again, no one blamed him for the damage (Tr. 18). Fourth incident. The Williams mechanics did a poor job in rebuilding the engine in truck 12, causing it to seize up on the first trip out. On Saturday, 8 June, Foreman Lanphear assigned LaRose to drive the truck following the costly repairs. As LaRose credibly testified (Fr. 20-21): I told the foreman the engine was not sounding right. The mechanic had informed me that when they started it up on the previous Friday night, after rebuilding it, it was banging and pounding awful loud. They dropped the oil pan. They discovered sev- eral bolts on the rod bearings were out about half an inch, allowing the rod to travel and hit the head. All they did was tighten up the nuts. Now, when the engine would turn over to start, it would grind and when it was running it would pound and sound awful loud. The foreman said I know it doesn't sound right, probably something else is wrong with it, but what are we going to do, we need the truck. . . . . Q. . . . Were the oil pressure gauges and warning lights operational on that truck before you operated it? A. No, they were not. I discussed this with the foreman and he said don't worry about it. . . there was plenty of oil pressure, so there should be noth- ing to worry about. As far as the warning lights and the alarm sys- tems, they were disconnected before I was em- ployed by Williams [2 years earlier]. LaRose drove the truck as instructed. On Tuesday, 11 June, after driving about 1000 miles, he had another breakdown (Tr, 209). The bearings in the engine again seized up, costing Williams another $11,000 to $13,000 to rebuild (Tr. 147). LaRose credibly testified (Tr. 21): Q. What exactly happened to that engine? How did it seize up? A. This particular engine has an air compressor mounted on the top, secured by three No. 8 hard bolts. When they rebuilt the engine, they replaced them with No. 5 soft bolts, which could not stand the stress put upon it. The bolts sheared off, the compressor popped out of place, allowing the oil to seep past the gasket. It only takes about 500 feet to dump out about 5 gallons of oil. Although LaRose had no formal training as a mechanic, he had owned his own tractor-trailer from 1979 to 1983 and had performed his own mechanical work (Tr. 24, 30-31, 43). Head Mechanic Boles did not deny the specific cause of the breakdown: the mechanics using the wrong-sized bolt, which sheared off causing the compressor to move out of place. He testified that, "Apparently, the compres- sor had loosened up," breaking the coolant hose and causing the oil to run out (Tr. 210). He admitted that the oil gauge "was defective, and we did not have one right at that point in time We ordered it." (Tr. 221.) He claimed that it was not calibrated properly and read at 100 pounds when it was zero (Fr. 210), and admitted that if the warning light and buzzer were not functioning and there was a sudden drop in oil pressure, "It is possi- ble" that it could happen so quickly the driver would not notice (Fr. 217). When asked if the warning light and buzzer were operating, he claimed, "I don't remember whether they were or not." (Fr. 217.) The evidence is clear that this fourth incident was caused by faulty mechanical work—rebuilding the engine without some required repair parts—not by LaRose's driving. c. Prima fade showing of discrimination On Saturday, 15 June (4 days after the fourth break- down incident), President Barquin talked to LaRose in the office and discharged him, giving him 2 weeks' notice. Barquin told him that he had cost Barquin in the ballpark of $30,000 in the last 30 days and that he abused the equipment, mentioning the engine problems on trucks 1502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 and 15 (Tr. 15, 17, 42, 131-132). The discharge became effective a week later on 22 June when, without explanation, Barquin informed LaRose that there was no load for him (Tr. 36, 151-152). Barquin was then doing the dispatching in the absence of Foreman Lanphear, who left about the middle of June about the time Bar- quin discharged LaRose (Tr. 164). The General Counsel contends that there is sufficient evidence to establish a prima facie case of discriminatory discharge. She particularly cites President Barquin's ad- missions that he had never warned LaRose about any of the incidents (Tr. 134, 137, 140) and the evidence indicat- ing Barquin's belief that LaRose was the prime union ad- herent. The Respondents contend that the General Counsel has not established a prima facie case. They cite Presi- dent Barquin's (discredited) denials of any knowledge of LaRose's union activity. They curiously cite the timing of his discharge, pointing out that "the representation case hearing had already been held and the election di- rected at the time of LaRose's discharge," but ignoring the fact that Barquin discharged LaRose before he could vote in the election. They conclude that "Insofar as the General Counsel has established neither employer knowl- edge of LaRose's union activity nor unlawful motive or intent, no prima facie case has been established." I agree with the General Counsel. Near the beginning of the union organizing campaign, President Barquin was overheard threatening to discharge the employees if they voted for the Union. A week after discharging LaRose, Barquin told a driver that "he felt that the business was better off" with LaRose gone because he felt that LaRose had organized a union. Office clerk Bullard, who was authorized to answer inquires about why em- ployees had been discharged, revealed to an inquiring employer that she felt that LaRose's union activity "had something to do with" his discharge. As also found, the evidence supports an inference that Supervisor Bolles, who overheard LaRose's union organizing in the shop, reported LaRose's active union support to Barquin. Thus, contrary to Barquin's denials, I have found that he was aware of LaRose's organizing activity. Furthermore, Barquin discharged LaRose without any prior criticism or warning and Barquin admittedly had no basis for feel- ing that LaRose was at fault other than the number of truck breakdowns and the amount of the damage (Tr. 189). I therefore find that the General Counsel has made a prima facie showing that a motivating factor in President Barquin's 22 June discharge of LaRose was his union ac- tivity. d. President Barguin's defenses Barquin clearly gave untrue, fabricated testimony in an effort to justify his discharge of LaRose without warn- ing. Barquin claimed "Yes, sir" when asked by Williams' counsel if "after each of the first three incidents" he "made a determination" to continue to employ LaRose (Tr. 186-187). But Foreman Lanphear—not Barquin- was in charge of the drivers until the middle of June when Barquin discharged LaRose. Barquin admitted not having "direct involvement" with the drivers in the de- liveries because that was done through Lanphear. He ad- mitted that his own contact with the drivers was "Very superficial." (Tr. 130.) President Barquin testified that he found out about the first incident (in late April) when he saw the truck in the garage and "the mechanics were starting to tear it apart." He further testified (Tr. 133-135): Q. Did you have occasion to discuss this incident with Mr. LaRose? A. No, I didn't. Q. Why not? A. Well, for a number of reasons. First of all, my foreman had direct control of the drivers. . . . sec- ondly . . . . we were right in the middle of the busiest time which is the month of May. The third is he was gone out on a trip. I didn't catch up to him for probably a couple of weeks. I find that his claim that he "made a determination" to continue to employ LaRose after this first incident was a complete fabrication. He clearly had no reason at that time to believe that LaRose was at fault, the foreman was in charge of the drivers, and there obviously was no occasion for him to be deciding whether or not to dis- charge a driver after one of the frequent breakdowns of the old equipment. (Barquin appeared by his demeanor on the stand to be willing to fabricate any testimony that might help his cause.) When asked if he spoke to LaRose about the second incident (the dropping of the valve seat) he claimed (Tr. 137): No, I didn't for the same reasons, but now in ad- dition . . . it's much more critical. It's getting closer and closer to Memorial Day. Also, we had just had another driver quit on us, and we were short drivers, and I just didn't have any choice. I didn't have anyplace to go. Barquin was thus giving four purported reasons for not speaking to LaRose about the second incident: (1) Fore- man Lanphear was in charge, (2) Barquin again did not catch up with LaRose for "probably a couple of weeks," (3) the business was even busier, and (4) there was a shortage of drivers. A truthful answer would have been an admission that there was no reason to suspect that LaRose was at fault in any way in driving the poorly maintained truck. There was no reason for even consid- ering a warning to LaRose, much less discharging him. When later asked if he spoke to LaRose about the third incident (the cracked drive shaft that "finally gave out"), Barquin fabricated two other obvious pretexts for not talking to LaRose. He answered, "No, I didn't be- cause I was in a quandary." He claimed, first, that he did not speak to LaRose because on 8 May he received the petition for an election and "I wasn't sure whether if I had fired anybody or laid anybody off" it would be un- lawful and "I made the decision to hang in there"; and, second, because he lost his fleet insurance he decided to insure fewer trucks and had an extra driver (Tr. 140- WILLIAMS MOTOR TRANSFER 1503 trailers that Barquin was trying to sell to a potential buyer. (It was held in that proceeding (G.C. Exh. 4) that LaRose was not the employee involved.) I discredit Bar- quin's denial at the trial that he "brought that up because [he] was trying to come up with another way of justify- ing Mr. LaRose's discharge." (Fr. 188.) Robin Wal- bridge, a Williams mechanic before he left in February, long before the four breakdown incidents occurred, claimed he had the opinion that LaRose was "very abu- sive of the equipment" and that "I think [Barquin's fleet of trucks] were exceptionally well maintained" (Tr. 268, 270). I fmd his testimony to be too untrustworthy to be relied on. He, like Barquin, appeared willing to fabricate any testimony that might help Barquin's cause. I find that Williams has failed to rebut the prima facie case of discriminatory motivation by carrying its burden to demonstrate that it would have discharged driver LaRose in the absence of his protected conduct. Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), ap- proved by the Supreme Court in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). I therefore fmd that Williams discriminatorily discharged LaRose in vio- lation of Section 8(a)(3) and (1) of the Act. 2. Against McAllister Driver Mark McAllister was laid off in late May as the most junior employee. He had signed a union author- ization card on 28 April (G.C. Exh. 10), attended two or three union meetings, and talked to other drivers at work about the meetings and the union (Tr. 79). On 4 June McAllister testified on behalf of the Union in the representation hearing (G.C. Exh. 6). On 23 August the Union filed a charge against Williams in Case 1-CA-23139 (G.C. Exh. 8), alleging that McAllister had not been recalled because he testified at the hearing. On 6 September, after the Union won the election, McAllis- ter went to President Barquin's office and told Barquin that the union representative had said Barquin wanted to see him about going back to work. Barquin asked what the NLRB charge was about and McAllister said he had heard that Barquin had hired another driver and had not called him. Barquin said he had called but nobody was borne (Fr. 80-81). President Barquin showed McAllister a letter from a customer complaining about his tearing up the custom- er's driveway when making a delivery. McAllister said he did not think he had done it and said that when the letter was originally received in April or May he had talked to Barquin's mother (in the office) about it. They then got into an argument, discussing the customer's driveway, "customers in general and breakage and differ- ent things that go on." As McAllister further credibly testified (Tr. 81): "[Barquin] said, well, if you do go back to work here I'm going to be watching you and if you do anything wrong, I'm going to be right on you." They then discussed when McAllister could return to work, but McAllister did not return. He explained at the trial: "It seemed to me that what he'd said meant that. . . . If I'd gone back to work he'd try to find something wrong with me and fire me." (Tr. 81-82.) 141). Of course, the first purported reason (receipt of the election petition) was not an actual reason for failing even to speak to LaRose about the incident, assuming he suspected that LaRose was at fault in some way; and the second would be a reason for laying off an extra driver (as he did Mark McAllister, discussed below), not for keeping LaRose as a driver without speaking to him. (I discredit these claims as further fabrications.) Some of Barquin's earlier testimony indicates that he did not in fact believe that LaRose was causing the breakdowns. When asked by the Williams counsel why he gave LaRose 2 weeks' notice on 15 June "as opposed to simply discharging him at that time," Barquin testified that he needed LaRose as a driver during "a spurt of a couple of weeks of business" before the annual 2-week summer vacation in the granite industry (Tr. 132). Un- doubtedly, if Barquin had a "good faith belief' that LaRose was abusing the equipment and causing the costly damage, he would have discharged him immedi- ately instead of risking further great losses. e. Contentions and concluding findings The Respondents contend in their brief (Br. 18) that "Even assuming that the General Counsel has established a prima facie case of unlawful discharge, there is over- whelming evidence that Mr. LaRose would have been terminated in any event," and "Mr. Barquin in fact had no choice but to discharge Mr. LaRose." They then con- tend: As a preliminary matter, Respondents acknowl- edge that there was no way to 'Prove," in an objec- tive sense, that Mr. LaRose was at fault with respect to any of the four incidents of sever vehicle damage. However, such proof is clearly not re- quired. Where the conduct in issue clearly is not as- sociated with activities protected by Section 7, an employer need only have a good faith belief that the employee has engaged in the conduct to pre- vail. . . . Williams submits that it indisputably had a good faith belief, and more, warranting LaRose's dis- charge. As Mr. Barquin stated, the number of inci- dents of vehicle damage as well as the degree of damage in each case was such that he felt LaRose to be at fault. [Emphasis added.] I disagree. LaRose was not at fault and the evidence— including President Barquin's fabricated defenses—belies the contention that Barquin had a good-faith belief that LaRose caused the damage to the trucks. I discredit his claim (Tr. 189): "I feel that he was at fault, yes." The Respondents also contend in their belief (at Br. 25 fn. 9) that "The decision to terminate had already been made and conveyed and Mr. Barquin's action in shorten- ing Mr. LaRose's two week notice period is in no way indicative of any unlawful motive." Again I disagree. Barquin made the discharge effective a week early (on 22 June) without giving any explanation. He later claimed at an unemployment compensation hearing that he discharged LaRose early because he believed LaRose was the employee who spoke disparagingly about two 1504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The General Counsel contends that Williams imposed onerous and rigorous terms and conditions of employ- ment on McAllister because of his union activities, his participation in the representation proceeding, and his having an unfair labor practice charge filed on his behalf, causing him not to accept employment. She contends that these facts are "akin to a constructive discharge" and relies on Great Southern Construction, 266 NLRB 364, 374-375 (1983). In that case the employes "created an intolerable employment situation" for two employees by conducting frequent inspections and surveillance of their work and engaged in other coercive conduct to force them to quit. I agree with the Respondents that the facts of that case are distinguishable. The Respondents contend that McAllister was not sub- ject to intolerable working conditions as a result of union activity and that he "simply decided not to return to a job at which he would be terminated for unsatisfactory performance." Certain aspects of President Barquin's conduct are sus- picious and much of his version of what happened is questionable. I find, however, that his statement, "I'm going to be watching you and if you do anything wrong, I'm going to be right on. you," following a discussion of some of McAllister's purported deficiencies, did not un- lawfully impose onerous and rigorous conditions of em- ployment, causing McAllister not to accept employment. I therefore fmd that the General Counsel has not estab- lished a prima facie case and that the allegations that Williams discriminated against McAllister in violation of Section 8(a)(1), (3), and (4) must be dismissed. C. Successorship Contrary to the General Counsel's contentions, I find that the 31 December sale of Williams' business to Bela- vance (G.C. Exh. 11) was a. consolidation of the oper- ations and did not make Bellavance a successor. The Board held in Perma Vinyl Corp., 164 NLRB 968, 969 (1967), approved by the Supreme Court in Golden State Bottling Co. v. NLRB, 414 U.S. 168, 172 fn. 2, 187 (1973): [We] are persuaded that one who acquires and oper- ates a business of an employer found guilty of unfair labor practices in basically unchanged Arm under circumstances which charge him with notice of unfair labor practice charges against his predecessor should be held responsible [as a successor] for reme- dying his predecessor's unlawful conduct. [Empha- sis added.] Although Bellavance purchased the trucks, trailers, cranes, scales, other equipment, and the building and ex- acted a promise from President Barquin and his parents not to compete in transporting granite products for 7 years, Bellavance did not operate the Williams business "in basically unchanged form." It consolidated the Wil- liams operation with its own at its terminal and garage on the other side of town and continued to operate under its own name and operating authority (Tr. 118- 119, 121). On 1 January 1986 Eellavance hired 3 of Williams' 10 drivers and none of Williams' 2 mechanics and supervi- sors. By the last week in February 1986, when Bella- vance began using the former Williams terminal as well as its old facilities, it had hired three other Williams driv- ers and six outside drivers (Tr. 94-95, 121-124). The former Williams drivers were not an identifiable group apart from the Bellavance drivers. They drove Bella- vance trucks and received higher Bellavance benefits (Tr. 117-118). The 3 employees hired 1 January 1986 constituted 12 percent of 25 Bellvance employees (in- cluding 18 drivers and 4 mechanics already employed), and on 28 February 1986 the total of 6 former Williams drivers constitued 18 percent of the 34 Bellavance em- ployees (Tr. 96). Bellavance did not continue to operate the Williams fleet of old trucks. Roland Bellavance credibly testified that he purchased the trucks "purely for tax purposes, not necessarily to use [as] his equipment over the road." (Tr. 119.) Some that "had a lot of miles on them" were overhauled and others were replaced (Tr. 126-127). Thus Williams' operation was consolidated into Bella- vance's operation and was not continued as a separate employing enterprise, and a small percentage of former Williams employees and none of the Williams supervision and management were employed in the consolidated op- eration. I find that there was no "substantial continuity in the employing enterprise" as required for finding Bella- vance to be a Golden State successor, responsible for remedying Williams' unfair labor practice. Great Lakes Chemical Cotp., 280 NLRB 1131 (1986). I therefore fmd that Bellavance is not a successor to Williams. CONCLUSIONS OF LAW 1. By discriminatorily discharging David LaRose 22 June 1985 because of his support of the Union, Williams engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. 2. By threatenting to discharge employees if they vote for the Union, Williams violated Section 8(a)(1). 3. Williams did not unlawfully cause Mark McAllister not to accept employment in violation of Section 8(a)(1), (3), and (4). 4. Bellavance is not a successor to Williams. REMEDY Having found that Respondent Williams has engaged in certain unfair labor practices, I fmd it necessary to order it to cease and desist and to take certain affirma- tive action designed to effectuate the policies of the Act. Having discriminatorily discharged an employee and having sold the business without reinstating him with backpay, Respondent Williams must make him whole for any loss of earnings and other benefits, computed on a quarterly basis from date of discharge "until such time as [he secures] substantially equivalent employment with another employer," as required in Golden State Bottling Co. v. NLRB, 414 U.S. at 187, less any net interim earn- ings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 WILLIAMS MOTOR TRANSFER 1505 (1950), plus interest as computed in Florida Steel Corp., 231 NLRB 651 (1977). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ORDER The Respondent, Williams Motor Transfer, Inc., its of- ficers, agents, successors, and assigns, shall I. Cease and desist from (a) Discharging or otherwise discriminating against any employee for supporting Chauffeurs, Teamsters, Warehousemen & Helpers, Local No. 597 or any other union. (b) Threatening to discharge employees if they vote for the Union. (c) 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 Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make David LaRose Sr. whole for any loss of earnings and other benefits suffered as a result of the dis- crimination against him, in the manner set forth in the remedy section of the decision. (b)Remove from its files any reference to the unlawful discharge and notify the employee in writing that this has been done and that the discharge will not be used against him in any way. 2 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Mail to all the employees, including the discharged employee, on the payroll 22 June 1985 at their last known mailing addresss, copies of the attached notice marked "Appendix."3 Copies of the notice, on forms provided by the Regional Director for Region 1, after being signed by Respondent President Brian Barquin, shall be mailed immediately upon receipt. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. To determine or secure compliance with the Order, the Board or any authorized representatives may obtain discovery from the Respond- ent, its officers, agents, successors, or assigns or from any person having knowledge of any compliance matter, as provided in the Federal Rules of Civil Procedure. The discovery shall be conducted under the supervision of the United States Court of Appeals enforcing the Order and may be on any matter reasonably related to the com- pliance. IT IS FURTHER RECOMMENDED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. 3 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."