Emerson G. M. Diesel, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 1242 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Emerson G. M. Diesel, Inc. arid Truck Drivers, Warehousemen and Helpers Local 148, affili- ated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 19-CA-12804 September 30, 1981 BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On June 16, 1981, Administrative Law Judge Russell L. Stevens issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief,' and the General Counsel filed a brief in support of the Administra- tive Law Judge's Decision. 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, find- ings,2 and conclusions3 of the Administrative Law Judge, but not to adopt his recommended Order.4 ' We hereby deny Responden's motion to reopen the record to permit the taking of the testimony or the videotape deposition of Respondent's president. Del Emerson. We agree with the Administrative l.aw Judge that Responiden's motion was not timely and that Respondent's allega- tion that Emerson could riot attend the hearing because of a "necessary business trip to the Far East" is not adequate cause to warrant reopening the record, in light of the fact that Respondent was on notice for some time as to the date of the hearing. 2 Respondent has excepted to certain credibility findings made by the Admitistrative Law Judge. It is the Board's established policy nlclt to overrule an administrative law judge's resolutions with respect to credi- hilit) unless the clear preponderance of all of the relevant evidence con- inrces us that the resolutionts are incorrect. Standard Dry Wal/ Products. /oc. 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. ' In sec. I.B, par 8I of his Decision, the Adnmitistralive Law Judge found. irter alia, that Respondent violated Sec. 8(a)(5) and (1) of the Act by failing to bargain with the Union concerning the layoffs of employees Quang Cao, Robert A. Cappa, Cecil Burgess, and Richard B. Thompson. Hosawever. he inadvertently failed to include a corresponding paragraph it his Coniclusions of Law. We shall therefore amend the Conclusions of L.a, ;accordingly. Further, we disavowk all reliance oIn fn 21 of the Deci- sion as it appears to be inconsistent with the finding that Respondent's decision to transfer work and lay off employees was violative of Sec. 8(a)(5) ad (1 of the Act. ' In his recommended Order. the Administrative Law Judge provsided that Respondetnl shall cease and desist from "in an)y like or related manler" iterfering with. restraining. or coercing its employees ill the x- ercise of the rights guaranteed them by Sec 7 of the Act However. based on our own careful analysis, we have determined that Respontdent, by the niumber and extent of its unfair labor praltices has engaged in such egregious and widespread misconduct as Io demonstrate a general disre- gard for its employees' fundamental statutory rights. We therefore shall include the broad injunctive language in the Order. See Hickinott lbod. In., 242 Nl.RB 1357 (1979). To reflect the above, and to conform more closel. with the Conclu- sions of I.aw, we will issue an Order in lieu of that recommended by the Admirnistrative l.aw Judge 258 NLRB No. 168 AMENDED CONCLUSIONS OF LAW Delete Conclusion of Law 7 and substitute the following therefor: "7. Respondent violated Section 8(a)(5) and (1) of the Act by failing to notify in advance, and by not offering to bargain with, the Union concerning the discriminatory transfer of Reliabuilt work from Wenatchee to Seattle and the resulting layoffs of employees Quang Cao, Robert A. Cappa, Cecil Burgess, and Richard B. Thompson." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Emerson G. M. Diesel, Wenatchee, Washington, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning their union activities and sympathies; threatening em- ployees that, if they voted for the Union, Respond- ent would close its Wenatchee facility and transfer Reliabuilt work to Seattle and thereby cause the layoff of employees; threatening to reduce and eliminate employee benefits and pay; and demand- ing that employees state whether or not they planned to vote for the Union, and later attempting to verify employees' intentions. (b) Discriminatorily transferring to Seattle, Washington, Reliabuilt work formerly done at its Wenatchee facility, and laying off its employees Quang Cao, Robert A. Cappa, Cecil Burgess, and Richard B. Thompson. (c) Refusing to bargain collectively with Truck Drivers, Warehousemen and Helpers Local 148, af- filiated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representa- tive of Respondent's employees in the appropriate unit by transferring Reliabuilt work from Wenat- chee, Washington, and laying off employees Quang Cao, Robert A. Cappa, Cecil Burgess, and Richard B. Thompson, without notice to and bargaining with the employees' duly designated collective-bar- gaining representative. The appropriate unit is: All production and maintenance employees employed by Emerson G.M. Diesel, Inc., at its Wenatchee, Washington facility, excluding office clerical employees, all other employees, and guards and supervisors as defined in the Act. (d) In any other manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 1242 EMERSON G. M. DIESEl, INC 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Reinstate and restore the Reliabuilt work pre- viously performed by Respondent at the Wenat- chee, Washington, facility. (b) Offer employees Quang Cao, Robert A. Cappa, Cecil Burgess, and Richard Thompson im- mediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their se- niority or other rights or privileges previously en- joyed. (c) Make employees Quang Cao, Robert A. Cappa, Cecil Burgess, and Richard B. Thompson whole for any loss of earnings they may have suf- fered due to the discrimination practiced against them, by paying each of them a sum equal to what he would have earned, less any net interim earn- ings, in accordance with the formula set forth in F W. Woolworth Company, 90 NLRB 289 (1950), with interest as prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).' (d) Upon request, bargain with the Truck Driv- ers Warehousemen and Helpers Local 148, affili- ated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, as the exclusive collective-bargaining repre- sentative of its employees in the bargaining unit de- scribed in (c), above, with regard to the transfer of Reliabuilt work from the Wenatchee facility and the resulting layoff of unit employees. (e) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (f) Post at its facility copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. "In accordance vA it h his dissett i Ol1 pip- .Icdniul (oirporation. 250( NlRB 14 (81X), Member Jenkins would a ard inltrest on he hackpa.l due basted on llhe frmula set forth herein ' In he r"ecnl hat this Order is nfoircd h a J;l.llllgme of a Unllited States C lurt of Appeals. Ihe word, i the notice reading 'ostcd h. Order of hce National Lahor Rlitionls Board" h;all rad Pl'stld Pillrs- ant to a Judgmenit of he United States (Court of Appeals Itilforcitng an O)rder of the Natliotal I ibor Relations Iloardl" (g) Notify the Regional Director for Region 9. in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX NoTrICI: To EMPI, ONII-S POSTI-I.) BY ORI)IR 01I THI NA TIONAI LABOR Rl ArIONS BOARI) An Agency of the United States Government WL Wll.I. NOI' interrogate employees con- cerning their union activities and sympathies; threaten employees that, if they vote for the Union we will close our Wenatchee facility; transfer Reliabuilt work to Seattle, and thereby cause the layoff of employees; threaten to reduce and eliminate employee benefits and pay; or demand that employees state whether or not they plan to vote for the Union, and later attempt to verify employees' intentions. WE Wll. NOi discriminatorily transfer to Seattle Reliabuilt work formerly done at our Wenatchee facility, and lay off our employees. WL WILtL. NO]I refuse to bargain collectively with Truck Drivers, Warehousemen and Help- ers Local 148, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, as the ex- clusive bargaining representative of our em- ployees in the appropriate unit by transferring Reliabuilt work from Wenatchee, Washington, and laying off employees, without notice to and bargaining with the employees' duly desig- nated bargaining representative. The appropri- ate unit is: All production and maintenance employees employed by Emerson G.M. Diesel at our Wenatchee, Washington facility, excluding office clerical employees, all other employ- ees, and guards and supervisors as defined in the Act. WI: WILt. NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of rights guaranteed them by Section 7 of the Act. WI wlt I. reinstate and restore the Reliabuilt work previously performed by us at the VWen- atchee, Washington, facility. WI WvI. offer employees Quang Cao, Robert A. Cappa, Cecil Burgess, aid Richard B. Thompson immediate and full reinstatement to their former jobs or, if those jobs no Ionger exist, to subst:ntially equivalent positions. 1243 DECISIONS OF NATIONAL LABOR RELATIONS O()ARI) without prejudice to their seniority or any other rights or privileges previously enjoyed. WE WILl. make employees Quang Cao, Robert A. Cappa, Cecil Burgess, and Richard B. Thompson whole with interest for any loss of earnings suffered due to the discrimination practiced against them. WEI wlltA, upon request, bargain with Truck Drivers, Warehousemen and Helpers Local 148, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, as the exclusive bargaining representative of our employees in the unit described above, with regard to the transfer of Reliabuilt work from our Wenat- chee facility and the resulting layoff of unit employees. EMERSON G. M. DIESEL, INC. DECISION STA I:MiEN OF T HF CASE Russil 1. L. SrlvtENs, Administrative Law Judge: This case was heard in Wenatchee, Washington, on April 1, 1981.' The complaint, issued October 31, is based upon a charge filed on September 25 by Truck Drivers, Ware- housemen and Helpers Local 148, affiliated with the In- ternational Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (Union). The com- plaint alleges that Emerson G.M. Diesel, Inc. (Respond- ent) violated Section 8(a)(l), (3), and (5) of the National Labor Relations Act (Act). All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and Respondent. Upon the entire record, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent is a Washington corporation, with offices and places of business in Seattle and Wenatchee, Wash- ington, where it is engaged in the business of distributing Detroit Diesel Allison engines, transmissions, and parts and performing service work. During the past 12 months, which period is representative of all times mate- rial herein, Respondent, in the course and conduct of its business operations, had gross sales of goods and services valued in excess of $500,000. During the past 12 months, which period is representative of all times material herein, Respondent, in the course and conduct of its business operations, sold and shipped goods or provided services from its facilities within the State of Washing- ton, to customers outside the State, or sold and shipped i All dates hereinafter are ilhin I1S)XO, unles slated to he olthcr is goods or provided services to customers within the State, which customers were themselves engaged in in- terstate commerce by other than indirect means. of a total value of an excess of $50,000, and purchased and caused to be transferred and delivered to its facilities within the State of Washington, goods and materials valued in excess of $50,000 directly from sources outside said State, or from suppliers within said State which ob- tained such goods and materials directly from sources outside the State. I find that Respondent is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. II L.ABOR ORGANIZATION INVOI.VII) Truck Drivers, Warehousemen and Helpers Local 148, affiliated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. IIl. THE ALLI GII) UNIAIR ABOR PRACTICES Background 2 Respondent is a distributor of the Detroit Diesel Alli- son Division of General Motors, and is an authorized representative for the sale of Detroit diesel engines. Re- spondent also offers repair services for trucks and indus- trial equipment. A portion of Respondent's business is an operation known as Reliabuilt, which is a trademark ac- tivity of General Motors. Reliabuilt's principal activity is the rebuilding of diesel engine parts, primarily water pumps, fuel pumps, generators, heads, and blowers.:" Re- built parts are sold under the Reliabuilt name, with war- ranties of fitness.:' Respondent, under the presidency of Del Emerson,:' has branches in Seattle, Wenatchee, Rochester, and Tuk- wila, Washington; Anchorage and Fairbanks, Alaska. The main branch is the one in Seattle. Most cores to be rebuilt are received by Wenatchee from the Seattle branch. Respondent's present manager of the Wenatchee branch is Sam Stout, who reports to Emerson, by whom he was hired on October 31, 1980. At that time, employ- ees of the Wenatchee branch, besides Stout, were a part- time secretary: Jim Livingstone, the parts manager: David Eichelburger, the principal shop mechanic; Quin- ton Korn, a Reliabuilt mechanic; and Doug Scaramoz- zino, a Reliabuilt mechanic. 6 rhis backgrounid sunmmary is hased upon sipu;lations of counsel. and upon credited estimony ad evidence tIhat i nrot i dispule ' he original part to which repairs and nlcccssary replacelmel parts are applied is knol as core 'Respondelt's Rliabuil aities arc uder the glleral spctr\liOll and pcrflrmrnance audit. of (ieneral Mlotor's Dcitron Diesel Dix ison ; Indi i duas are referred to herein hby heir last a rniles t he (enlcral Cunscl allcge, and Rcspolndet diics. tlhat I lchel- burger ss as i supervisor ihin the lncataniag otf Ilie Act. The iother m- plo yccs ea rc nlol alleged. a d ar tot I found io hbe. upcTrs lst (1tCl sipUlaled ihalt .i ilgioa,e \ ia tot a supcr astr Staul', supcr i is tria l Staitl is 11iot it dipitll 1244 EMERSON G. M. DIESFl, INC. On August 7, 1980, the Union filed with the National Labor Relations Board a petition for certification as the exclusive bargaining representative of all employees of Respondent's Wenatchee branch, excluding office cleri- cal employees, guards and supervisors. The petition was received by Respondent at the Wenatchee facility on August I1. After receipt of the petition, Respondent's employees were talked with on several occasions by Harry Orr.7 Stout's predecessor. Those conversations are alleged to have included violations of Section 8(a)(1) of the Act. Following a stipulated election on September 11, at which the vote was seven for the Union and one against the Union, the Board certified the Union by doc- ument dated September 19, as the exclusive bargaining representative of Respondent's employees described above. As of September 19, Respondent's employees at the Wenatchee facility included Orr: Eichelburger; Robert Cappa, a Reliabuilt mechanic's helper; Cecil Burgess, a Reliabuilt mechanic's helper: Scaramozzino; Dennis Jor- gensen a mechanic; Quang Cao, a Reliabuilt mechanic; Richard Thompson, parts manager: and Korn. On Sep- tember 19, Respondent laid off Cappa, Burgess, Thomp- son" and Cao. The General Counsel alleges that the four employees were laid off in violation of Section 8(a)(3) and (I1) of the Act. Respondent contends that the four employees were laid off because of lack of Reliabuilt work. and the General Counsel alleges that the lack of work was occasioned by Respondent's transfer of some Wenatchee Reliabuilt activities to the Seattle branch. The General Counsel contends that the transfer of work to Seattle was effected in order to interfere with union activity, in violation of Section 8(a)(5) and (I) of the Act. Cappa was rehired by Stout on December I, and later again was laid off in February 1981 because of lack of work. 9 Burgess was offered reemployment approxi- mately on December 16, but refused the offer for person- al reasons. He has not applied for reemployment at Wen- atchee or elsewhere. Thompson was rehired by Stout on November 17, 1980, and subsequently replaced Living- stone, who quit his job on November 14, 1980. Cao was rehired by Stout approximately on December 18. A. Alleged Interroga:',ns of Threats to, and Demands of Employees Paragraph 6(a) of the complaint alleges that, on August 11, 12, and 13, Orr interrogated employees con- cerning their union activities and sympathies. Cappa testified that he talked with Orr on August 11 and that Burgess was present. Cappa stated that the con- versation was after the Union's petition for certification had been received by Respondent. Cappa testified: He walked up to me and Cecil, and he asked us what we were doing and to think about what we were doing. And he told us to ithdraw our peti- tion from the Union. and if a.e did not do this, that O()rr's siuperx ,oriail tat 1i, .I'! Ill (IpuItc I hmpo on', Ulitu, ;a11 C ll ciplocC.e rAtlllcr till i LipCr\ Nlor. 1, it io{ Iii Fhr ' puc '* he Fe.'rua r5 ii I8 Ia~ off i, o in' Ii,41 we were going to lose our jobs because they were going to shut down Reliabuilt and send everything that we were doing in the Reliabuilt section to Seat- tle. Cappa testified that Orr called a meeting of employees later the same day. August I 1: Harry Orr come out and called us all together and asked us why we were voting in the Union, for what reason did we have. Then he said, "If the Union did come in, that they twere going to shut Emerson Diesel's whole shop down." And he also stated that he could not afford to pay the people in Reliabuilt five or six dollars an hour. He said he could not do that. He said that the Teamsters' benefits, if the Union does come in, the Teamsters' benefits will not be as good as what you have now. He also stated that there was two people in the shop that was above Union scale. He said that if the Union did come in, that these people would probably be dropped back do'wn to Union scale, and he said to think about that and about the benefits. He said the way you are paid. overtime is paid time and a half for the first hour. anything over that first hour is double time. He said we don't haxe to pay you that. And he also said the coffee machine. he said that is a luxury for you people. We pro, ide the coffee. Arnd he said that will be taken away. Cappa further testified that. a "couple of days" after the meeting of August II, Orr and Eichelburger met with employees: Well. Harry walked out with everybody's files, and he started going through the files of what they were making per hour and when they got raises and when they were due for raises. when they 'were hired. He started going through that. And after that. Dave Eichelburger spoke up- well. Harry ()rr as anted to know as hy we ' cre going to Union .... Harry Orr was talking. and he said if the Union did come inl thalt there would be four people lose their jobs because they are going to shut Reliabuilt down. And he told us to think about that. And he did ilot refer to which four people. He did not give any nasllleS I)a;id ichclhburger poke tip ad c;mne uip with the idea of letting him- or Ilarry kno xs hieh \5 a\ \.c were going to go to the Union, es or no. And swe all decided okay. that ould be fine. And Harry 1245 DECISIONS OF NATIONAL LABOR RELATIONS BO()ARD said yeah, that would be okay, let us know at 4:30 which way you will go. Okay. And later after that we decided we weren't going to do that, we were going to have them get ahold of the Union man. And around 4:20, Dave Eichelburger came up and he wanted to know which way we were going to go. Cappa stated that Eichelburger asked him shortly there- after, what he (Cappa) was going to do, and Cappa re- plied that he did not know, and that, if Eichelburger wanted to know anything else, he should get in touch with a union representative. Cappa added that, during the group meeting, Orr stated that Emerson had told him (Orr), that four employees would be losing their jobs if the Union "did come in." Cappa testified that, in late August or prior to the union election, he talked with Eichelburger, with Bur- gess and Cao present: Well, David Eichelburger come up to us and stated and reminding us of what Harry Orr said about voting in the Union. And he said this is good experience for you people. You don't have that much experience in this kind of work. He said it's tough to get jobs out there when you don't have much experience. He said you should think about this. He says if you do vote in the Union, he point- ed to the three of us and he said, "You, you and you will be losing your jobs." Burgess corroborated Cappa's testimony, and further testified that, during his prehire interview with Orr, the latter stated "it was a nonunion shop, and they wished it to stay that way." Livingstone testified that, on the day Respondent re- ceived from NLRB the Union's petition for certification, he talked with Orr, who asked if he knew anything about the petition. Livingstone replied no, that he had heard about some union activity, but thought it was a joke. Orr also asked him, Livingstone testified, why he had not told Orr about what he had heard. Livingstone testified that, later the same day, Orr told him that he had talked with Emerson on the telephone, and that Em- erson said he was going to remove Reliabuilt from Wen- atchee "if the shop goes union." Finally, Livingstone tes- tified that he heard Orr tell Cappa and Burgess on the same day, "that if the shop goes union, they were going to lose their jobs." Scaramozzino testified that he was interviewed by Orr when he went to work for Respondent in August 1980. He testified that Orr stated, among other things, that "the fellows out in the shop were thinking of bringing the Union in." and that Orr asked "how I felt towards the Union." Scaramozzino corroborated Cappa's testimo- ny concerning the group employee meeting called by Orr, and testified that Eichelburger asked all the employ- ees "how is this thing going to go? Are you going to make any decisions?" and further, asked Scaramozzino what his feelings were. Thompson testified that he talked with Orr the day Respondent received from NLRB the Union's petition for certification: He said, "I have here a letter from the National Labor Relations Board. Did you have anything to do with it?" I said, "No, I did not." He said, "You are the logical choice." I told him that I had heard some rumors about the Union coming into the shop, but I had nothing to do with it. Thompson corroborated Cappa's testimony concerning the group employee meeting conducted by Orr, and tes- tified that Eichelburger asked him later that day "if I really did want the Union in the shop." Thompson cor- roborated Cappa's testimony concerning the meeting with several employees, quoted supra. Jorgensen testified that he overheard Orr's conversa- tion with Cappa and Burgess on August II11, discussed above, and corroborated Cappa's testimony relative to that conversation. Jorgensen also corroborated Cappa's testimony concerning the group employee meeting held by Orr on August II1. Korn testified that Orr asked him, on the day the union petition was received from NLRB, "if I had had contact with the Union. I said yes. And he asked me why." Korn attended the group employee meetings held by Orr later that day, and 2 days later, and corroborated Cappa's testimony relative to the meetings. Discussion Neither Orr nor Eichelburger testified, nor did Emer- son testify. Eichelburger's alleged supervisorial status was not proved. The testimony relative to that status was incon- clusive. In any event, that status does not control any finding or conclusion, since Eichelburger's participation in events that are in issue was peripheral. Eichelburger was the mechanic foreman,'0 but he did not hire, fire, or discipline employees. Jorgensen, an assistant supervisor, or leadman, testified that Eichelburger was his successor, and it is clear that Jorgensen was not a supervisor. Ei- chelburger assisted other employees when they had work problems, but he worked alongside other employees, and voted in the union election. However, it appears, and it is found, that Eichelburger actively assisted Orr, and was an agent of Respondent for limited purposes. Eichel- burger distributed layoff notices to employees on Sep- tember 19," and Cappa credibly testified that Eichel- burger told him that, if and when work picked up, the three employees who were laid off would be the first ones called back. Eichelburger attended group meetings of employees with Orr, and at those meetings gave the impression that he was closer to, and supportive of. man- agement than he was to rank and file employees. Orr never disavowed any remarks or actions by Eichel- burger, and clearly accepted the latter as an employee af- filiated with the management side of the plant. " 'hc iclltlltlic hoP an, ..paratc and pa rn Irnm thc Rliahuill ¢c- O ()rr till a, on liit pa;lroll on Scplcnihcr 1., hilt hi I ; as inl Sc;attlc on 1Ihal daitc Orr ft Respondcnli's mplomcrt at i'CltItlCC iich 0c 1 ate Scp(Cnlhtr '. iltd .%% cii to i irk a, a rc IlILc II I Ic Siattle hraldli 1246 EMERSON G. M DIE.SEL.. INC. All of the General Counsel's witnesses who testified relative to the allegations of paragraph 6 of the com- plaint are credited. Livingstone and Scaramozzino par- ticularly were convincing. As pointed out above, Orr and Eichelburger did not testify and, therefore, the Gen- eral Counsel's witnesses remain uncontradicted. 2 It is found that all the allegations of paragraph 6 of the com- plaint are supported by the record. B. Transfer of Work and Layoff of Employees Paragraph 7 of the complaint alleges that, on Septem- ber 19, Respondent transferred work theretofore per- formed by Reliabuilt mechanics, from the Wenatchee branch to the Seattle branch, and laid off employees Cao, Cappa, Burgess, and Thompson, in order to inter- fere with union activity and without notifying the Union and affording the Union an opportunity to bargain about the changes. " Cappa testified that, on Monday of the week he was laid off, he heard Orr tell Burgess "to get all of his equipment boxed up and put it in the middle of the floor there, get it all ready. He did not say what he was going to do with it at that time." Cappa said Burgess did as Orr instructed, and that, starting on Tuesday, Burgess as- sisted Cappa and Cao, since he had no other work to do. On Wednesday, Cappa testified, he heard Orr tell Cao "to get his stuff ready, put it in baskets and band it up and put it on pallets and get it ready to go." On Thurs- day, Cappa related, Orr told him "to get all my stuff ready . . . it was going back to Seattle." Cappa testified that, on Friday, the Reliabuilt employees had no work to do, and that Eichelburger talked with him that day about a possible job as a mechanic apprentice after Orr was gone-that Orr "might be losing his job over this whole deal." Cappa said the shipment of cores from Seattle to Wenatchee had been discontinued at about the same time parts and equipment were sent to Seattle, and that Orr "told us to ship it all [note: pending work] back because they were going to shut Reliabuilt down." Finally, Cappa testified that, prior to the election, Orr told him on several occasions "that if things didn't shape up, the company was going to shut down the Reliabuilt section in Wenatchee." Burgess corroborated Cappa's testimony, and further stated: There was nothing left as far as any equipment. Everything had been boxed up and ready to ship back. All the tables were stacked up and pushed over into one corner, and they had moved all the engines from the outer shop into the Reliabuilt sec- tion. Burgess further testified that Orr "had a lot of dissatis- faction in having to manage Reliabuilt. He didn't have a lot of time to manage it. I'm sure he would have liked to have seen it gone." ITestimony elicited hb Respondenl relatite to hbenefilt, givcn to enm- plyee, h Respondent, and relati e to the facl that some benefits ilctlill- ly were not taken aay as threatened, is irreleant '' 'The layoff of he four named employees on September 1) is not in dispute Korn corroborated Cappa relative to the removal of work from the Wenatchee Reliabuilt section, and further stated that some Reliabuilt equipment and work tables were kept at Wenatchee and that some Reliabuilt work. but not all of it, could have been done at Wenatchec with the remaining equipment. Stout testified that. when he succeeded Orr tin late September), there was enough Reliabuilt equipment at Wenatchee to do Reliabuilt work. and that the records show no withdrawal of tools for shipment to Seattle. Stout testified that, when he was hired as the manager for Wenatchee. Emerson talked with him about the job: He set some goals for me that he felt were impor- tant. First of all, the branch was not profitable. and he looks to me to make it profitable. OCne of the ways-one of the problems he outlined for me was there was an inadequate work base in the Wenat- chee area, and he believes that it is the correct loca- tion for a rebuilding center, specifically for a Relia- built operation. The goal he set for me was to correctly reestab- lish the Reliabuilt operation. And his future plans included building all of the Reliabuilt parts in this area. He may retain some of that in each branch, but he looks at Wenatchee as becoming the rebuild- ing center. Thereafter, Stout testified, he hired Thompson to replace Livingstone and recalled Cappa and Cao in order to comply with Emerson's instructions. He said he ex- plained to Cappa and Cao that they would have to do some odd jobs until the Reliabuilt section was built up again. At present. Stout stated, there is some Reliabuilt work in the plant and Eichelburger is foreman mechanic as well as foreman of the Reliabuilt section. Cappa and Cao have been laid off because of lack of work, howev- er. Stout said the Reliabuilt section still has not made a profit. Richard Thomas, a business representative for the Union, testified that the Union was not notified of Re- spondent's intention to transfer work from Wenatchee, and was not given an opportunity to bargain about the effects of the work transfer, or about the layoffs of em- ployees. Thomas said he met with Emerson and Re- spondent's attorney on October 21, at which time Emer- son stated that the work had been transferred out of Wenatchee because it was necessary to remove Orr, and that he was looking for a new manager for Wenatchee. Thomas testified that Emerson related his long experi- ence in working with Local 79 in Seattle. and said he held no personal animosity toward Thomas or the Union. Thomas said he and Emerson discussed possible contract provisions and several other matters of mutual interest. and that Emerson stated he had been troubled for some time about the quality of Reliabuilt work at Wenatchee, particularly work on blowers. Discussion Contrary to Respondent's argument in brief, the fact that Reliabuilt work was transferred from Wenatchee to Seattle clearly is established by the record. Thomas cre- 1247 DECISIONS OF NATIONAL LABOR REI.ATI()NS O()ARI) dibly testified that Emerson told him on October 21 that the Wenatchee work had been transferred to Seattle. Also, Stout told Cappa on December 10, according to Cappa's credited testimony, that Respondent was going to start bringing Reliabuilt work back to Wenatchee. Further, Stout testified that nearly all Reliabuilt tools and equipment remained in Wenatchee, and that Relia- built work could have been done at Wenatchee after the layoff of September 19, almost, or to the same extent, as prior to that date. " It is noted at the outset, that Orr threatened to close the Reliabuilt section if the Union was selected as the employees' bargaining representative. Whether or not Emerson knew of the threat, or condoned it. is irrele- vant. The transfer of work to Seattle was effected, and four employees were laid off as a result of the transfer. ' A suspicion thus is raised that the threat was carried out, for the reason stated by Orr. Respondent elicited testimony from some witnesses in an effort to show that the Reliabuilt employees were in- experienced, poorly trained as mechanics, and did poor work, which resulted in many rejected parts, in turn con- tributing to a decision to close the Reliabuilt operation at Wenatchee. However, that testimony did not make such a showing, and Respondent introduced no independent or evidence in support of its contention. There is nothing in the record to show that the work of the four dis- charged employees, or any other employee, caused the transfer or work, entirely on partially. " Respondent also contends that the Wenatchee Relia- built operation was never profitable, but that contention was not supported by business records or any other inde- pendent evidence. Stout's testimony on this point was limited to the period after October 21, and even that tes- timony was sketchy, limited, and self-serving. Respond- ent also contends that Reliabuilt work traditionally de- creases in the winter months, but that argument was not supported by reliable evidence, is based upon self-serving statements, and is found to be without merit. The record is inadequate to show that Reliabuilt work was trans- ferred to Seattle for economic reasons. 17 There is no question but what the four employees were laid off because of the transfer of Reliabuilt work. The principal question is the reason for the transfer of work. Respondent offered no convincing proof or argu- ment that the transfer was caused by any factor not re- lated to unionization of the employees. The General Counsel's witnesses established that the transfer was " Apparently, a valve grinder may have been shipped to Sealttle. but thal too l primarily was used to expedite work, not to perflorm Wo urk that otherwise could not be done. | Respondent's contenelio that the number of employecs in its Seatctl Reliabuill section \. as not icreased, and that, therefore, nlo work ;ias transferred, involves a ro serrquitur. was not supported by ally indepettd eni evidence, ad is found to he without merit. ' Cappa estified that lie received I\Vt raises during his eCiployinti by Respondent. There is noi e idence that any employee was arneld hat his job was it jeopardy hecausce of poor work. B nurgess credibly testified that imcerson came tl WcUclllchee anil spoke Ito the emplteyces prior to the election. satingl among thller thiings. "that if e venll for higher wages, such as five, six dollars alt hour. they would not he able to afford to keep Emerson Diesel pen foir the Relia- huill operation," Impliedly. the operatliln could operate economicall aI the then existing wages. caused by their selection of the Union as their bargaining representative. Respondent argues that Emerson did not harbor union animus, and cites Thomas' conversation with Emerson in October to support that contention. However, regardless of what Emerson may have said. Burgess' credited testimony establishes that, before he was hired in May 1980,. Orr told him that the Wenatchee branch was nonunion, and management wanted it to stay that way. The fact of Respondent's union animus is well supported by the record, including the 8(a)(1) violations discussed above. There is no reliable evidence that poor work, or lack of profit, or any other nonunion related cause, resulted in the transfer, and further, retention of Reliabuilt tools and equipment at Wenatchee makes it appear that Respondent did not intend to give up on Wenatchee as a plant for Reliabuilt work. That conclu- sion is bolstered by the credited testimony of Thomas, relative to his conversation with Emerson. Respondent argues that it could have kept Reliabuilt work in Wenatchee, and would have done so, but for a decision already made to relieve Orr of his job, and no one immediately was available to take his place. It is argued that Eichelburger was not trained or experienced in Reliabuilt work, and that Stout was not hired until late September. That argument begs the question and was not proved. First, there was no showing that Orr had to be relieved, other than, possibly, the fact that he botched the union problem. Second, skilled Reliabuilt mechanics apparently were available from Seattle and elsewhere, to relieve Orr on a temporary basis. Third, it seems unrealistic that an entire department would be closed, and four employees laid off, only because of loss of a supervisor, particularly in view of Eichelburger's qualifications as a skilled mechanic and his presence in the same facility. Finally, Orr's replacement, Stout, was totally inexperienced in Reliabuilt work, yet he was hired, in part, to build up the Reliabuilt operation at Wenatchee. Respondent admittedly wanted a Reliabuilt operation at Wenatchee, and the employees were not told when they were laid off, that they would be re- called when a new supervisor was hired. In fact, they were given no credible reason for their layoff. Finally, there is no evidence that shows Respondent's serious concern with the Wenatchee Reliabuilt operation at any time prior to August II, when Orr received a copy of the Union's petition for certification. Possibly Orr caused the problem by mismanaging the union matter, and possibly Emerson was not aware of all events at Wenatchee, but even if that were true, Re- spondent is bound by Orr's actions under accepted prin- ciples of agency, and Orr's supervisory status under the Act. Clearly, the tranfer of work and layoff of the four em- ployees named above were occasioned by the employees' selection of the Union as their bargaining representative, in violation of Section 8(a)(3) and (1) of the Act. " Equally clear, Respondent's failure to bargain with the Union concerning the transfer and the layoffs was in derogation of the rights of the employees and their ' Stutlcr Ilnduitriws, hit.. 244 NL.RIt 144 (1979). See also Irilo-lio. Ir,, 232 N KRB 753, cifircemenll denied 585 IF2d t2 (d Cir 1'78). 1248X EMERSON G. M. DIESEL, INC. union, in violation of Section 8(a)(5) and (3) of the Act. ' 9 The transfer and layoffs occurred on September 19, 8 days after the election was won by the Union on Sep- tember 11. The duty to bargain arose on the latter date.2 0 As pointed out by the General Counsel, Respondent's decision to transfer Reliabuilt work to Seattle was a sub- ject of mandatory bargaining, since it involved employ- ees' wages, hours, and other terms and conditions of em- ployment. 2 ' IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section 111, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY In order to effectuate the policies of the Act, I recom- mend that Respondent be ordered to cease and desist from the unfair labor practices found herein, and from any like or related unfair labor pratices, and to take cer- tain affirmative action described below. As discussed above, Respondent did not have an orga- nized plant prior to September 11, and stated to at least one job applicant that it did not want one. Thereafter, Respondent threatened and otherwise coerced employees in an unsuccessful effort to defeat the union drive. One threat, i.e., to close the Reliabuilt section of the plant if the Union won the election, was carried out by transfer- ring the section's work to Seattle. But for the effects of the union election, the plant section would not have been closed. Only the work performed in the Reliabuilt sec- tion was transferred-the equipment and ability to per- form that work in Wenatchee, given the employees, was not affected. Respondent wanted a Reliabuilt facility in Wenatchee, and reactivated the closed facility after events described herein. It is apparent that the facility was closed solely in order discriminatorily to interfere with employees' union activity, and that the work trans- fer involved very simple and inexpensive business proce- dures-the work simply was done hereafter in Seattle, rather than shipping the parts to Wenatchee to be worked on here. Thus, an order to reactivate the former procedure of doing Reliabuilt work in Wenatchee rather than in Seattle will not be expensive, burdensome, or "' .L.R.B v. Internarional Harvester Co, 618 F.2d 85 (')th Cr 1950): .\L.R.. v Triumph Curing Center und i. I Lee d ,,h, L Sewing Company,. Inc.. 571 F.2d 462 (9th Cir 1978) ' ILa/ley Iron & Steel Co., 224 NLRH 6h6 (1976): Pepl-Co/a Botrtitng q/ BrxAookfeld Inc.. 199 NI.RB 509 (1972). : The General Counsel argues hat Respondent had a duty to bargain about the decision to transfer work and to 1;a off emplo ees Tha;t rgu- menl need not he reached, since the effects of the illegally rmolisalted transfer and layoffs were subject to bargailing. ad in adequate rerilld! is aailable to rectif 5 failure to hargain ahoult them unfair. The Reliabuilt work is not of a highly skilled nature, and there is no showing in the record of any par- ticular difficulty in obtaining employees. The former em- ployees, some or all of whom still possibly are available, were paid at low-level scales, which indicates the general skill level involved. Such an order, to reactivate the Wenatchee Reliabuilt section, is necessary in order to re- store the status quo ante at Wenatchee, and it is recom- mended. 22 Further, reinstatement and a make-whole remedy is recommended for the four employees discri- minatorily and illegally laid off. CONCI.USIONS OF LAW I. Emerson G. M. Diesel, Inc., is, and at all times ma- terial herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Truck Drivers, Warehousemen and Helpers Local 148, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees em- ployed by Respondent at its Wenatchee, Washington fa- cility, excluding office clerical employees, all other em- ployees, and guards and supervisors as defined in the Act, constitute an appropriate unit for bargaining within the meaning of Section 9(b) of the Act. 4. Since September 11, 1980, the Union has been the exclusive bargaining representative of the employees in the aforesaid unit. 5. Respondent violated Section 8(a)(l) of the Act by: interrogating employees concerning their union activities and sympathies; threatening employees that, if they voted for the Union Respondent would close its Wenat- chee facility, transfer Reliabuilt work to Seattle and thereby cause the layoff of employees, and reduce and eliminate employee benefits and pay; and demanding that employees state whether or not they planned to vote for the Union, and later attempting to verify employees' in- tentions. 6. Respondent violated Section 8(a)(3) and (1) of the Act by transferring to Seattle, Reliabuilt work formerly done at its Wenatchee facility, and by discriminatorily laying off its employees Quang Cao, Robert A. Cappa, Cecil Burgess, and Richard B. Thompson. 7. Respondent violated Section 8(a)(5) and (1) of the Act by failing to notify in advance, and by offering to bargain with, the Union concerning the transfer of Relia- built work from Wenatchee to Seattle. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) of the Act. [Recommended Order omitted from publication.] T . R .A ,orth (arllina ( ait i/ ] iorii in, _ . 542 F- 2d 637 (41h Cir I'176): .\ ..R.I t X J A on -arm, , 5 F2d 51t ,10th irt 1972); Equitahle (iad ('opran. 245 NI RII 2t (197)T 1249