Jim Baker Trucking Co.

National Labor Relations Board - Board Decisions

Mar 16, 1979

241 N.L.R.B. 121 (N.L.R.B. 1979)

JIM BAKER TRUCKING COMPANY
Jim Baker Trucking Company and General Truck
Drivers, Warehousemen and Helpers Union, Local
980, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
and Daniel Throm. Cases 20-CA-13704 and 20-
CA-13828
March 16, 1979
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
On September 6, 1978, Administrative Law Judge
David G. Heilbrun issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and the General Counsel filed a brief in support
of the Decision and in support of cross-exceptions to
that Decision. Respondent filed a brief in response to
the cross exceptions.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge only to
the extent consistent herewith, to modify his remedy,
and to adopt his recommended order as modified
herein.
1. The Administrative Law Judge found that Re-
spondent violated Section 8(a)(1) of the Act by re-
peatedly interrogating its employees about their own
and other employees' union activities and by threat-
ening them that Respondent would cease its opera-
I Respondent asserts that the General Counsel's cross-exceptions ,ere in-
timely. We do not agree.
Sec 102 46(e) of the Boad', Rules and Regulations states:
An) party who has not preiously filed exceptions may. within 10
days, or such further period as the Board may allow, from the last date
on which exceptions ind any supporting brief may be filed, file cross-
exceptions to any portion of the admninistratie law judge's decision,
together with a supporting brief, in accordance with the provisions of
subsections () and 0) of this section. The provision for 3 additional
days is contained in section 102.114 shall be applicable to this subsec-
tion.
In accordance with that section. the last da3 for filing exceptions with the
Board in this case was September 29. Applying Sec 102 114(a) regarding
time conmputations, the 10-day period did not commence to run until Sep-
tember 30 and would have ordinarily expired on October 9, a legal holiday
Accordingly. the filing period was extended until October 10, plus the 3 days
provided for by Sec. 102 114. The General Counsel. therefore, had until
October 12 to file the cross-exceptions. Since his cross-exceptions were filed
on October 10, it is clear the) were timely.
Respondlent has excepted to certain credibility findings made by the Ad-
ministratise I.aw Judge. It is the Board's established policy not to overrule
an adminlstratlve law judge's resolutions with respect to credibility unless
the car pepionderance of all of the relesant evidence convinces us that the
resolutions arc incorrect. Standard D Wall Products, Inc., 91 NLRB 544
(195t). enfd 188 IF2d 362 3d Cr 1951). We have carefully examined the
record anid ind no basis for reversing his findings
tions if the union activities persisted. We fully agree
with these findings.
We also agree with the Administrative Law Judge's
finding that Respondent violated Section 8(a)(3) and
(1) of the Act by discharging employee Daniel Throm
because of his union activities. In doing so, however,
we disavow his conclusion that Throm's discharge
was only "in part" motivated by his union activities.
Rather, we are persuaded by the timing of the dis-
charge and the knowledge attributable to Respondent
of Throm's union activities, set against the immediate
backdrop of Respondent's othec coercive unfair labor
practices and the record as a whole, that the sole rea-
son for Throm's discharge was his union activities. In
reaching our conclusion we also note that the Admin-
istrative Law Judge himself characterized Respon-
dent's asserted reasons for the discharge as "utterly
hollow" and "without legitimate basis."
2. We also find, contrary to the Administrative
Law Judge, that Respondent unlawfully created the
impression of maintaining surveillance of its employ-
ees' union activities. Thus, on March 10, 1978, em-
ployee Ben Gonzales approached Respondent's
owner, Baker, and told Baker that he was resigning
because he could not afford a layoff due to the union
situation. Baker replied that he did not think it (the
Union would "go that far" and said "he knew who
had started it." Gonzales asked who he thought had
been the instigator. Baker replied: "The fellow (point-
ing to Russell O'Neill) that just drove out of the
yard." Gonzales asked if he meant Russell. Baker
said, "Yes."
In our judgment, Respondent, through Baker's
conversation with Gonzales. clearly violated Section
8(a)(1) by conduct creating the impression of surveil-
lance of employees' union activities. Notwithstandin,.
the fact that Gonzales initiated the conversation with
respect to the Union, it was Baker who. without piod-
ding or questioning by Gonzales, volunteered that he
knew who was responsible for the advent of the
Union at his company. Gonzales, in an attempt to
discover whether Baker really knew who was the
prime mover for the Union, asked Baker who he
thought it was. Baker's response correctly pinpointed
O'Neill as the union instigator. The accuracy of Ba-
ker's response reasonably tended to impress upon
Gonzales that Baker was maintaining surveillance of
the employees' union activities, including possibly his
own. Such conduct interferes with, restrains, and co-
erces employees in the exercise of their statutor
rights and, therefore, violates Section 8(a)(1) of the
Act.
3. The General Counsel has excepted to the Ad-
ministrative Law Judge's failure to recommend a ba
gaining order remedy. For the reasons set forth be-
241 NLRB No. 14
121
II:( ISI()NS O1 NATIONAL LABOR RELATIONS BOARD
low, Ae find. in a reenilenlt ith the (General Counsel,
tha};lt s II I' l, % 1; ?,Hi!;,,,L Jl.
In ,!/ R. f v (. , s1l/ lt kni ('o., Inc., 395 U.S.
575 ( (,9). tile SprellnC ('lour approved the use of
iuthori/aliolr cards als an Ilrdication of employee sen-
i nlnt't aid tirltilel ;apli-o\ d rcliance on such cards
as h fis io isSlmil a haigaining order where there is
';t sho Wi that it Ine point the t [ni11oi had a mlajor-
it" aIlldl lthe eriplloel lha;s enlagec in unftir labor
practices hich "have a citencv to undermine ma-
.ority strength arid irimpede the election processes."
39 I l.S. t 14.
In he i1nstlait case. it Is unldispultedI that on Febru-
ary 5. 19'78, Ihe I lii il pssCssed valid authorization
arids sigliedl hb a mi!oritv o1' espondent's employ-
ces. lieslpondent learned of the nion's support
anioring its clmplo yee s lIen thle U lion, on February
17, ilc(d a ptition fo anI electioin. Respondent's
owner, Ji m iBaker, was adminittedly shocked hb this
developmenrit. aid ilillmediatel y thereaftci embarked
uipon a ill Iunla1ful coursc of conduct designed to
qlalasi fitllerh nior n i activity. I'hus, on February 18 or
I], as nird h the Adiniistrative Law Judge Baker
repeatedlN telephoned ei rployee Russell O'Neill and
qlestlioned hi in egarding his knowledge of card sign-
ers and hovw he would vote in an election. Baker's
inlcrrogationis wel-c acconipanilid hb statements that
he would resist the I nion hb temporarily closing the
('onipail's doors )I bly chaiigilig its name. A similar
threat if closure w as inaide during this period by Ba-
ker- to cmplo\cc ( iorge ('anleron. who was also
ql1 ctitoncdi :iit i iilc til.e lls 01' uniion instigators
arid how lie sw iiilId vlte ill an election. A third em-
plo ee. Ber (on1Z les, WaIS also (luestioned by Baker
Is h, Iii o l!'dec 4 I tile lills ogTialiing eflort.
J tes,: ! [' , \Cill te ll c a'ycd to him
i' ; ;". i, !; ' i c ~' ' i itiil Wit:l int11 in-
,i . ' :. I, 'l'..S l Ci flrcking opera-
li1 1i. Ill I 1i tlh s11lll sI/e ,il Ihe unit, the sevenity
of)1 IIT Iihctt, ll Id iliCroigrtoris, and le evidence
ii ( !iie- I ,i !Iljdt til i'lceats i i not tunrea-