Farmer Bros. Co.

National Labor Relations Board - Board Decisions

Jun 27, 1991

303 N.L.R.B. 638 (N.L.R.B. 1991)

638
303 NLRB No. 92
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has moved to strike that portion of the General Counsel’s
answering brief pertaining to a settled unfair labor practice charge filed by em-
ployee McGriff against the Union or, in the alternative, to reopen the instant
matter for an evidentiary hearing. The General Counsel has filed a statement
in opposition to the Respondent’s motion. The Board may take administrative
notice of its own proceedings. In addition, contrary to the Respondent’s con-
cerns, we note that the settlement agreement and accompanying official papers
show only that McGriff filed a charge against the Union regarding a refusal
to process a grievance and that the case was settled. Accordingly, we deny
the Respondent’s motion. In doing so we note that our disposition of this case
would be the same if we granted the motion. Member Devaney finds it unnec-
essary to pass on the motion to strike.
2 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
3 The Respondent has requested oral argument. The request is denied as the
record, exceptions, and briefs adequately present the issues and the positions
of the parties.
4 We will modify the recommended Order and notice to reflect the judge’s
finding that the Respondent violated Sec. 8(a)(1) of the Act by warning
McGriff not to associate with employee Lofton Trywick, a known or suspected
union proponent.
Member Oviatt finds it unnecessary to decide whether the Respondent,
which violated Sec. 8(a)(3) and (1) of the Act by terminating employee
McGriff for seeking the Union’s help in asserting a perceived contractual right,
also violated Sec. 8(a)(1) of the Act by terminating McGriff because he com-
plained directly to it about the matter.
Farmer Bros. Co. and James L. Stayton-McGriff
and Food, Industrial and Beverage Warehouse
Drivers and Clerical Employees Union, Team-
sters Local Union No. 630, affiliated with Inter-
national Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
AFL–CIO, Party in Interest. Case 31–CA–
17677
June 27, 1991
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On August 29, 1990, Administrative Law Judge
Burton Litvack issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed an answering brief.
The National Labor Relations Board has delegated
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 briefs1 and has
decided to affirm the judge’s rulings, findings,2 and
conclusions3 and to adopt the recommended Order as
modified.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Farm-
er Brothers Company, Torrance, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Insert the following as paragraph 1(d) and reletter
the subsequent paragraphs.
‘‘(d) Warning employees against association with
known or suspected union proponents.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT cease to utilize the services of casual
drivers or strike their names from our roster of casual
drivers because they seek the aid of Teamsters Local
Union No. 630 in resolving potential contractual griev-
ances or because they complain about such problems
directly to us.
WE WILL NOT interrogate employees as to their
union sympathies.
WE WILL NOT warn employees to keep quiet about
their prior union activities.
WE WILL NOT warn employees against associating
with known or suspected union proponents.
WE WILL NOT impliedly threaten to subcontract our
trucking operations to nonunion companies and/or lay-
offs if employee actions result in problems with Team-
sters Local Union No. 630.
WE WILL NOT inform employees that problems can
be resolved without the necessity of involving Team-
sters Union Local No. 630 and/or the filing of griev-
ances.
WE WILL NOT inform employees that they are being
terminated for having sought the aid of Teamsters
Local Union No. 630 in resolving potential contractual
grievances.
WE WILL offer a letter of intent to James L. Stayton-
McGriff, place his name at the top of our preferential
hiring list, offer him full-time employment at the first
available opportunity, and WE WILL make him whole,
with interest, for any lost earnings he may have suf-
fered as a result of our discrimination against him.
WE WILL remove from our records any references to
failing to utilize Stayton-McGriff’s services as a casual
driver since April 13, 1989, and removing his name
from our roster of casual drivers.
FARMER BROS. CO.
639FARMER BROS. CO.
1 Counsel for the General Counsel was permitted to amend the complaint
at the hearing to include an additional allegation of Sec. 8(a)(1) violative con-
duct. Respondent denied the allegation.
2 Respondent admits that Farmer, Berger, Allen, and Stiff are supervisors
within the meaning of the Act.
3 The current collective-bargaining agreement between Respondent and
Local 630 is effective until March 31, 1991.
David J. Dolloff, Esq., for the General Counsel.
Seymour Swerdlow and Cynthia A. Woodruff, Esqs.
(Swerdlow & Florence), of Beverly Hills, California, for
the Respondent.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. On May 16,
1989, the unfair labor practice charge in the above-captioned
matter was filed by James L. Stayton-McGriff, an individual
(McGriff). Based on the unfair labor practice charge, on July
31, 1989, the Regional Director of Region 31 of the National
Labor Relations Board (the Board) issued a complaint, alleg-
ing that Farmer Bros. Co. (Respondent) engaged in acts and
conduct violative of Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act).1 Respondent timely filed an
answer, denying the commission of any of the alleged unfair
labor practices. Pursuant to a notice of hearing, this matter
came to trial before me on November 29 and 30 and Decem-
ber 1, 12, and 13, 1989, in Los Angeles, California. During
the hearing, all parties were afforded the opportunity to offer
into the record any relevant evidence, to examine and cross-
examine all witnesses, to argue their respective legal posi-
tions orally, and to file posthearing briefs. The latter docu-
ments were filed by counsel for the General Counsel and by
counsel for Respondent and have been carefully considered.
Accordingly, based on the entire record, including the
posthearing briefs and my observation of the testimonial de-
meanor of the several witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a California corporation, with an office and
principal place of business located in Torrance, California, is
engaged in the production and wholesale supply of coffee to
hotels and restaurants. In the normal course and conduct of
its business operations, Respondent annually sells and ships
goods and products, valued in excess of $50,000, directly to
customers who are located outside the State of California.
Respondent admits that it is an employer engaged in com-
merce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits that Food, Industrial and Beverage
Warehouse Drivers and Clerical Employees Union, Team-
sters Local Union No. 630, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL–CIO (Local 630) is, and has been
at all times material, a labor organization within the meaning
of Section 2(5) of the Act.
III. ISSUES
The complaint alleges that Respondent engaged in acts and
conduct violative of Section 8(a)(1) and (3) of the Act by
terminating McGriff on or about April 13, 1989, because he
engaged in union or other protected concerted activities. The
complaint further alleges that Respondent engaged in the fol-
lowing acts and conduct violative of Section 8(a)(1) of the
Act: (1) informing McGriff that he had been terminated be-
cause he sought the assistance of Local 630 and because he
invoked the parties’ collective-bargaining agreement; (2) in-
forming McGriff that he would be required to disclose his
past union activities before being hired; (3) instructing
McGriff to conceal his past union activities; (4) impliedly
telling McGriff to refrain from filing grievances; (5) interro-
gating McGriff about his union activities and sympathies; (6)
impliedly threatening plant closure if McGriff engaged in
union activity; (7) telling McGriff that any problems should
first be discussed with Respondent rather than the Union; (8)
impliedly threatening to subcontract its freight hauling oper-
ations because of employees’ union activity; (9) threatening
to lay off McGriff if he engaged in union activities; (10)
threatening to discharge McGriff if he continued to associate
with union adherents; (11) creating the impression of surveil-
lance of McGriff’s past and present union activities; (12) tell-
ing McGriff he could no longer work for Respondent be-
cause of his union activity; and (13) threatening to discharge
McGriff because he invoked the parties’ collective-bar-
gaining agreement or otherwise engaged in union or other
protected concerted activities. Respondent denied having en-
gaged in the alleged unfair labor practices and asserted that
it no longer chose to utilize McGriff’s truckdriving services
for lawful business considerations and not for any union ac-
tivities in which he may have engaged.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Respondent manufactures coffee, spices, and coffee brew-
ing equipment for restaurants, hotels, and related institutions,
selling and shipping its products to customers located
throughout the United States. For its business operations, Re-
spondent maintains a plant in Los Angeles, California, at
which coffee brewing equipment is manufactured, and its
main facility in Torrance, California at which coffee is pro-
duced. Respondent’s products are transported throughout the
country by an in-house truckdriving operation, managed by
its distribution department which is based at the Torrance fa-
cility. The record establishes that Ray E. Farmer is Respond-
ent’s president; that Guenter Berger is Respondent’s vice
president and responsible for its production, purchasing, dis-
tribution, laboratory, and brewmatic divisions; that Calvin
(Gene) Allen is Respondent’s distribution manager and re-
sponsible for its traffic and fleet departments and the mainte-
nance shop; and that Jack Stiff is Respondent’s traffic man-
ager.2 The record further establishes that, for many years, the
employees of Respondent’s several divisions have been rep-
resented for the purpose of collective bargaining by various
labor organizations; that these bargaining relationships appear
to have been, and remain, harmonious; and that the employ-
ees, including the long-haul truckdrivers, of Respondent’s
traffic department are represented by Local 630.3
640 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 According to his employment application (R. Exh. 6), McGriff has been
a long-haul truckdriver since, at least, 1973, having driven for five different
trucking companies during this 16-year period.
5 At that time, McGriff was employed by the Benjamin Moore Paint Com-
pany, and, inasmuch as pay reductions were imminent and the company was
in the process of leasing out its truck operations, he was looking for employ-
ment elsewhere.
6 There is no dispute that the entry level driving position for Respondent
is as a casual driver. Unlike permanent drivers, who have seniority dates, may
bid on runs, and receive contractual job protections, casual drivers are hired
on a temporary, trip-by-trip basis, do not have any company seniority, are paid
on trip-by-trip basis, unlike permanent drivers, are ‘‘terminated’’ after each
driving trip, and may no longer be utilized by Respondent at any time and
for any lawful reason. The record establishes that Respondent utilizes such em-
ployees for two purposes: to replace permanent drivers who are sick or other-
wise absent from work and to drive as ‘‘extras’’ when there are insufficient
permanent drivers to handle required trips. Such extra runs have not been bid
upon or assigned to Respondent’s permanent drivers. As Allen explained to
McGriff, art. 58(c) of the Western States Area Supplemental Agreement (Sup-
plemental Agreement), to which Respondent remains bound by its collective-
bargaining agreement with Local 630, requires that an employer immediately
begin personnel processing of any casual driver who has completed 40 tours
of duty within 120 days and that when an employer hires a permanent driver
he must do so from a preferential hiring list of casual drivers who have met
the above requirement.
7 As I understand it, the term ‘‘forcing himself onto the Board’’ means de-
manding or requiring Respondent to place an individual on the regular senior-
ity list as a permanent driver.
8 Apparently ‘‘tours’ and ‘‘trips’’ may be used interchangeably.
9 There is no dispute that Kenny Thomas did in fact, file a contractual griev-
ance in 1988 to require Respondent to classify him as a permanent driver.
Conceding that Thomas ‘‘forced himself’’ onto the Board, Gene Allen testified
that the grievance concerned Thomas’ contention ‘‘that he had the adequate
tours of duty for hire and he wanted to be hired on a permanent basis.’’ Allen
further stated that the difficulty was that Respondent had failed to keep records
of Thomas’ tours inasmuch as he previously indicated a lack of desire to be
a permanent driver.
McGriff testified that he later learned the identity of the second problem
truckdriver—Lofton Trywick. According to the Charging Party, another driver,
Walt Haynes, told him.
As to whether any lingering animosity between Respondent and the Union
existed after the resolution of the grievance, notwithstanding Allen’s com-
ments, Union Steward Leonard Andrade denied the existence of such.
James Stayton-McGriff, who is an experienced long-haul
truckdriver,4 first became aware that Respondent operated its
own long-haul truck fleet during a CB radio conversation
and, in early December 1988, contacted Jack Stiff regarding
a truckdriver position with Respondent.5 Having been in-
formed by Stiff that, along with an employment application,
he would need a DMV computer printout of his driving
record and a medical form for his employment interview,
early in the morning of December 8, 1988, McGriff went to
a local DMV office, obtained a printout of his driving record,
drove to Respondent’s Torrance office, and completed an
employment application form in preparation for Respondent’s
preemployment interview process. There is no dispute that
McGriff was eventually interviewed by Farmer, Berger,
Allen, and Stiff; however, not only the substance but also the
timing of these interviews are at issue. Thus, consistently
claiming that his interviews were not completed until a meet-
ing with Farmer and Berger in either late February or early
March 1989, McGriff testified that, upon filling out the ap-
plication, he spoke to Stiff. The latter examined the docu-
ments, which McGriff had given him, and asked why he
(McGriff) wanted to work for Respondent, and the latter re-
plied that he ‘‘understood it was a good union company and
I wanted to maintain my pension benefit.’’ Thereafter, they
discussed the Teamsters Union, and McGriff said that he had
been a union steward for Local 710 in Chicago. To this, ac-
cording to the Charging Party, Stiff replied, ‘‘well you better
forget that here, just keep quiet about it.’’ McGriff further
testified that, as the meeting ended, Stiff told him he would
next have to interview with Gene Allen. ‘‘I told him I had
to go to work at Benjamin Moore. I was scheduled out that
day for San Francisco . . . with drops in the valley on the
way back. He asked when I would be back—when I could
meet with Mr. Allen and I told him how my time schedule
worked . . . and that my next morning off would be . . .
Tuesday morning . . . December 13th.’’ Stiff replied that he
would discuss hiring the Charging Party with Allen and call
him in a few days.
Three or 4 days later (December 13), according to
McGriff, Stiff telephoned him and asked him to come to Re-
spondent’s Torrance facility that day and meet with Gene
Allen. McGriff drove to Respondent’s office facility, and
Stiff took McGriff to Allen’s office, introduced Allen to
McGriff, and returned to his own office. McGriff testified
that he and Allen were alone and that, after looking at
McGriff’s employment application, Allen explained that he
(McGriff) would be hired as a casual driver, not as a perma-
nent driver, and that he would be probationary until he com-
pleted ‘‘forty tours of duty.’’6 While he was in this status,
according to Allen, he would be sent out with five regular
drivers who would evaluate him, ‘‘and out of the five, I had
to get three good ones or I was done immediately.’’ Allen
explained that he could have a personality conflict with two
drivers but that he ‘‘better get along’’ with three of them.
Next, they spoke about the company with Allen briefly out-
lining its history and telling how he started as a truckdriver.
Then, Allen said that a ‘‘new policy’’ was in effect whereby
McGriff would have to be interviewed by Guenter Berger
and Roy Farmer himself ‘‘before I would be made perma-
nent.’’ Elaborating, Allen said that ‘‘due to the fact that a
couple guys he hired casual had filed grievances and forced
him to put them on the board, . . . he could no longer do
the hiring and firing himself. . . . Mr. [Berger] and Mr.
Farmer himself required that privilege now.’’7 McGriff then
asked Allen for more information about being a casual driver
and for the length of time he would remain in that status.
Allen replied that the four or five drivers, hired before him,
had remained casuals for just 4 months but that others had
remained casuals for more than a year. McGriff asked how
a driver accumulated his 40 driving tours,8 and Allen re-
sponded that a driver earned none for days working locally,
‘‘for every day you’re out of town on a solo trip you get
one,’’ and ‘‘for every day you’re out of town on a sleeper
trip, you get two tours of duty,’’ which are noted on the
driver’s paychecks. Allen added that, after earning 40 tours,
the company places the driver on a preferential hiring list
and that, when a permanent driver is needed, an individual
is hired from that list. He also explained that ‘‘. . . whatever
I did at Farmer Bros. not to force myself on the list because
. . . the two drivers who caused the problems had done this
and . . . had really caused a lot of trouble.’’ During cross-
examination, McGriff recalled that Allen mentioned the name
of one of the two troublemaking drivers, Kenny Thomas.9
According to McGriff he wore his Benjamin Moore uniform
during this interview, and when it concluded, Allen ‘‘ex-
cused me . . . and let me go to work . . . .’’ As he left the
building, McGriff stopped at Stiff’s office ‘‘and told Jack
when the next time I’d be back in town . . . because . . .
641FARMER BROS. CO.
10 McGriff stated that ‘‘the old man’’ was the way Respondent referred to
the over-70-year-old Roy Farmer—‘‘everybody’’ referred to him this way.
I hadn’t quit Benjamin Moore yet . . . . Jack set my inter-
view . . . with Mr. Berger for . . . two days later, my next
day back in Los Angeles . . . .’’
McGriff testified that, as scheduled, he met with Guenter
Berger at the Torrance facility on December 15. According
to the Charging Party, when he arrived at Respondent’s of-
fice, Jack Stiff said he wanted to speak to him prior to meet-
ing with Respondent’s vice president. They spoke in Stiff’s
office, with Stiff ‘‘prepping me on what to say to Mr.
[Berger] . . . I was warned I was going to be asked a thou-
sand questions that didn’t pertain to truckdriving whatso-
ever,’’ including some ‘‘ridiculous’’ ones. Also, McGriff was
instructed not to smoke, and Stiff said ‘‘‘he’s going to ask
you about your past Teamsters Union experience . . . be-
cause he’s turned the several drivers that we’ve sent up there
down on this . . . .’’’ On this, Stiff cautioned McGriff to
say ‘‘[Y]ou belonged to it because you had to, not because
you wanted to.’’ At that point, Allen walked into the office
and repeated the warning that Berger would inquire about the
Teamsters Union. After McGriff told him how Stiff already
had instructed him to respond to such a question, Allen re-
plied ‘‘Yeah, that will work okay.’’
Thereupon, McGriff met with Guenter Berger in an aban-
doned office located behind Stiff’s. According to the Charg-
ing Party, he once again wore his Benjamin Moore uniform
and they spoke alone. Berger asked questions about
McGriff’s wife, family, education, and other matters. Then,
he asked if McGriff had ever been an officer or steward for
the Teamsters Union, and, assertedly recalling what Stiff had
advised, the Charging Party admittedly lied, saying he had
not. Berger next began reading down the list of McGriff’s
prior employers, set forth on his application, and, noting that
several had gone out of business or declared bankruptcy, he
asked if the Teamsters Union had anything to do with that.
McGriff averred that he thought so; Berger replied that he
was ‘‘damned right’’ about that. Berger then asked if
McGriff was a ‘‘strong union man,’’ and the latter replied
that he belonged for a long time as it was a requirement of
employment. Berger responded, ‘‘Good, we don’t need any
more union trouble around here.’’ On that note, the interview
ended.
McGriff further testified that, later that week or early the
next week, Stiff telephoned him and ‘‘asked me if I could
come in this afternoon. I had passed my interviews and they
were going to use me as a casual driver and I was to come
in that afternoon and Gene Allen was going to go over the
driver’s handbook with me.’’ As instructed, McGriff reported
to Respondent’s Torrance offices, and Stiff immediately es-
corted him to Allen’s office. McGriff and Allen thereafter
spoke alone. At the outset, according to McGriff, Allen
handed him a copy of the employee handbook, saying that
he had written it himself, and, for the next several minutes,
they went through the initial chapter, with Allen reading
much of it out loud. Next, they discussed the contractual
grievance and arbitration procedure in detail. Allen stated
that Respondent was a unique union shop in that Leonard
Andrade, the union steward, was a former Teamsters Union
business agent and that this meant ‘‘most problems could be
settled right in the office without going downtown.’’ Allen
continued, saying that they ‘‘don’t dare’’ have any union
problems at this company; that Respondent’s cost of oper-
ations was $1.27 per mile; that Respondent could subcontract
to J. B. Hunt to haul its coffee for 89 cents per mile; and
that Berger was ‘‘trying to get the old man to get rid of the
trucks and farm this work out to a nonunion independent
contractor.’’ And he said, ‘‘Any union trouble we have here
just adds fuel to the fire.’’10 Allen then said that McGriff
should understand how Respondent operates and said that,
awhile ago, in the warehouse, a female shop steward habit-
ually filed petty grievances including one about toilet paper
in the bathroom and that the toilet paper grievance so an-
gered Farmer, ‘‘he laid off everybody in the . . . warehouse
up to and including her, and he left them laid off’’ for 2 or
3 years. McGriff said he would speak to Allen if he had any
labor problems and left the office.
McGriff testified that he began driving for Respondent the
next day but that he did not complete the interviewing proc-
ess and meet with Roy Farmer until the last week of Feb-
ruary or the first week of March 1989. This meeting, accord-
ing to the Charging Party, occurred in Berger’s office at the
Torrance facility with Berger present during the interview.
Before Farmer arrived, McGriff and Berger discussed Farm-
er’s driver evaluations and had a ‘‘friendly chat.’’ Fifteen or
20 minutes later, Farmer entered the office, and Berger pro-
ceeded to tell him about McGriff’s employment history and
driver evaluations. Farmer asked about McGriff’s name, and
the latter said it was English. Farmer mentioned that he had
been stationed in England during World War II, and they
reminisced about that country for a few minutes. Next, Farm-
er questioned McGriff about his employment history and
asked why he left Sears and Roebuck. McGriff replied that
the Chicago terminal had been closed but that the company
was reopening it. Farmer asked if Teamsters Union drivers
would be utilized again, and McGriff said he thought so.
Farmer then asked, ‘‘how do you feel about the union your-
self, are you a strong union man?’’ Assertedly remembering
what Stiff and Allen had said, McGriff said that he was not
and that he had been a member for 18 years and had filed
just one grievance. Farmer asked if he had heard about the
‘‘deal with Kenny Thomas’’ and what he thought about it.
McGriff said that he did not know enough to comment on
it, ‘‘and Mr. Farmer said, ‘well, that guy doesn’t realize how
close he came to putting a lot of people out of work.’’’
Contrary to McGriff, Respondent’s version of the alleged
discriminatee’s preemployment interview process is that such
was completed in one day and that neither Stiff, Allen,
Berger, nor Farmer uttered what was attributed to them by
the Charging Party. Essentially, Guenter Berger, Gene Allen,
and Jack Stiff testified that each interviewed the Charging
Party on the same day—December 8, 1988. According to
Stiff, who was hired as Respondent’s traffic manager on Au-
gust 11, 1988, and who is responsible for ‘‘dispatching’’ the
truckdrivers, he conducted the initial interview of McGriff on
the day the latter filled out his employment application. The
interview, which occurred in Stiff’s office, lasted for 20 to
30 minutes and began with Stiff examining the application.
According to Respondent’s traffic manager, they discussed
McGriff’s job with Benjamin Moore, with the latter saying
he did not want to be part of a leased-out arrangement. Stiff
recalled the Respondent’s collective-bargaining agreement
with Local 630 was discussed with regard to tours of duty:
642 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 What Stiff, who testified that he informs all new driver applicants of what
types of tours count toward the contractually required total of 40 before full-
time status may be attained, asserted that he told McGriff paraphrased R. Exh.
8, a letter of agreement dated October 4, 1988, between Respondent and Local
630. Gene Allen, who stated that the document memorialized what had been
an oral agreement between the parties, testified that the letter of agreement
was drafted and executed pursuant to a suggestion of the arbitration panel
which heard the Kenny Thomas grievance and that ‘‘it delineates what is to
be counted and what isn’t to be counted for’’ preferential hiring list status.
Allen added that the document was never posted by Respondent on any bul-
letin board, nor is a copy ever given to a new applicant. As will be discussed
infra, McGriff’s version is that he did not learn about the details of the above
agreement until being told by Business Agent Willie Lykes in early April
1989.
12 Stiff averred that it was ‘‘standard procedure’’ for all employment inter-
views to be completed in one day ‘‘so somebody doesn’t have to drive back
and forth.’’ Accordingly, Stiff attempts to arrange the interviews ‘‘on a day
where all of us are available.’’
13 Allen denied being under instructions not to hire union members. Allen
stated that Respondent has hired former Teamsters Union officials and stew-
ards including Leonard Andrade, Paul Myers, and Joe Calwell, a former busi-
ness agent, who was hired at about the same time as McGriff.
14 Contradicting Allen, Union Steward Leonard Andrade testified that he has
heard Allen refer to Farmer as ‘‘the old man.’’
‘‘I discussed with him the tours of duty; that . . . only those
as an extra run would count toward employment under the
contract of the 40 tours in 120 days. That those, as a replace-
ment for vacation, somebody out sick, would not count reg-
ular tours toward hiring.’’11 Stiff recalled that the matter of
how long McGriff would remain a casual driver was dis-
cussed, with him (Stiff) saying ‘‘it could vary, and exten-
sively in length . . . . I couldn’t define a specific time or
area.’’ Stiff testified that, at the conclusion of his interview
with McGriff, he telephoned Gene Allen and asked if Allen
had time to interview an applicant. Allen said that he did,
and Stiff escorted McGriff to Allen’s office, introduced the
two men, and asked Allen to arrange a meeting for McGriff
with Berger and Farmer. Stiff left McGriff with Allen and,
an hour or two later, telephoned Berger, saying that there
was an applicant to interview and giving Berger an approxi-
mate timeframe for Allen’s interview with McGriff.12 Ac-
cording to Stiff, ‘‘I didn’t see [McGriff] again until he came
back up the stairs, I think maybe a couple of hours later
. . . . I asked him how it went, and he said he thought it
went fine, that Mr. Farmer was stationed in England during
the war . . . . And we discussed a lot of England.’’ Regard-
ing his interview of McGriff, Stiff could not recall the
former saying he wanted to work for a good union company
and denied that McGriff told him he had been a union stew-
ard. As to any conversation about McGriff’s interview with
Berger and Farmer, Stiff denied warning him to watch out
for union questions, instructing McGriff to conceal his past
union activities, saying several past applicants had been re-
jected because of union activities, or instructing McGriff to
say he had been forced to join the Teamsters Union. ‘‘The
only thing I ever instructed Mr. McGriff was to answer any-
thing they . . . might ask him, directly and honestly.’’
Gene Allen, who stated that, at least 90 percent of Re-
spondent’s long-haul truckdrivers had been Teamsters Union
members prior to being hired by Respondent and that he
could not recall hiring anyone who had not been a union
member,13 testified that he is the ‘‘second step’’ in the em-
ployment interview process and that he normally interviews
applicants immediately after Stiff and on the same day. Ac-
cording to Allen, Stiff brought McGriff to his office after
completing his interview of the Charging Party, and his inter-
view of McGriff lasted between 30 and 45 minutes. At the
outset, Allen and McGriff went through the latter’s employ-
ment application, with Allen noting that McGriff, as did he,
had military experience as a pilot. They next discussed
McGriff’s employment situation with Benjamin Moore, and
the Charging Party asked about Respondent’s long-range
plans. Allen replied that ‘‘we don’t have any plans to close
down,’’ but said Respondent constantly did economic evalua-
tions of other carriers. McGriff expressed a concern that Re-
spondent would close its trucking operations as did some of
his former employers and asked about the possibility of Re-
spondent contracting out the trucking work. Allen responded
that Respondent always evaluated the cost of its operations,
that its costs were ‘‘very good for a private fleet,’’ and that
‘‘[We] didn’t have any plans at that time to make any
changes in our operations.’’ Allen conceded that J. B. Hunt
was mentioned regarding its ability to haul freight at 89 cents
per mile and that ‘‘I just told him that I’m always looking
at it as an alternative.’’ However, Allen denied telling
McGriff that Berger was trying to convince ‘‘the old man’’
to get rid of the union trucks and specifically denied ever re-
ferring to Roy Farmer as ‘‘the old man.’’14
The conversation turned to the subject of the Teamsters
Union, with McGriff saying that he wanted a stable union
job which would enable him to get his retirement and other
benefits. Allen told McGriff that Respondent’s drivers were
represented by Local 630, primarily a warehouse union.
McGriff said that did not concern him. Allen said that Re-
spondent had a very good relationship with Local 630 and
that Leonard Andrade was the union steward. McGriff asked
if Respondent had a history of grievance problems, and, ac-
cording to Allen, he replied in the negative and ‘‘told him
that we had only had three or four grievances during my en-
tire time in there’’ with ‘‘only a couple . . . actually . . .
filed.’’ McGriff asked if they involved casual drivers, and
Allen mentioned the Kenny Thomas grievance, which ‘‘he
seemed to know about . . . already.’’ With regard to that
grievance, ‘‘I believe I probably answered his question with
Kenny had filed a grievance to [force] himself on the senior-
ity board . . . . I told him it turned out to be a lengthy
thing. That it caused me a lot of headaches.’’
McGriff asked Allen how long it would take to move from
casual status to ‘‘full-time,’’ and Allen replied that such
could be as long as a year depending upon how busy he was
kept. They then briefly discussed the driver evaluation proce-
dure. Allen asked if McGriff understood it, and the latter said
he was aware that there would be five such evaluations, and
‘‘he seemed to understand it.’’ Asked if he explained how
McGriff could achieve permanent status, Allen replied, ‘‘I
probably did’’ go into the necessity of being credited for 40
tours, and ‘‘I always tell them accredited.’’ By this, Allen
testified, he meant ‘‘tours that are countable’’ but conceded
not being certain that McGriff understood him.
Allen further testified that, while he did not recall reading
portions verbatim, he and McGriff did discuss the drivers’
handbook—‘‘I did go over each of the captions and point out
the specific areas.’’ One such area was the grievance proce-
dure ‘‘because that’s one of the prime things that I talk to
all the guys about.’’ Allen explained to McGriff that Re-
spondent has an ‘‘open door policy,’’ that an employee could
643FARMER BROS. CO.
15 I asked why Respondent would continue a layoff while paying overtime
to employees to make up the work, but Allen could give no answer.
16 Allen testified that Berger and Farmer had been involved in employee
interviews ‘‘maybe six, eight months.’’ He stated that the policy of having
them speak to prospective truckdrivers was instituted because Berger was new
to the facility, and, not knowing anyone, he wanted to meet everybody. Allen,
then, added, ‘‘It started, coincidentally, right after the Kenny Thomas hir-
ing. . . . I don’t think Kenny was anything to do with it. But that’s about
the timeframe.’’ Hearing this testimony, Respondent’s counsel immediately
claimed that Allen’s testimony was mistaken in this regard, and, having been
cued, Allen readily agreed that he had made a mistake. He testified that both
Berger and Farmer had interviewed driver Joe Calwell prior to hiring him as
a casual driver and that Calwell was hired before Thomas. Asked to explain
his ‘‘mistake,’’ Allen averred, ‘‘I was thinking . . . of the placement on the
seniority roster and where people were and the grievance committee placed
Kenny Thomas in a different spot than he was originally and so the Calwell
interview would have been way before . . . . the Kenny Thomas grievance.’’
Examination of R. Exh. 22, driver Joe Calwell’s employment application,
discloses that it is dated October 12, 1987, and Guenter Berger, corroborating
Allen, testified that he interviewed Calwell. While, presumably Berger would
have interviewed the driver at the time he filled out the application and sought
employment as a casual driver, Berger stated that his practice of interviewing
candidates for casual driver positions began in the spring of 1988, months after
Calwell applied for a job. He denied that such had anything to do with the
Thomas grievance.
always see his supervisor ‘‘if he had a problem,’’ and that
he should always speak to ‘‘his supervisor or me before fil-
ing a grievance and give us a chance to solve the problem.
We tell everybody that.’’ Allen adamantly denied, in any
way, prohibiting McGriff from ever filing a grievance or say-
ing he would cause trouble by initially going to his union
steward, but ‘‘I told him that we didn’t like to get grievances
because . . . it was really an unnecessary thing. That if we
use the open door policy . . . we should be able to eliminate
the problem.’’ In connection with their discussion of ‘‘griev-
ances and relationships with [Local 630],’’ Allen admitted
having ‘‘volunteered’’ information that Respondent had just
one prior layoff, that it had involved the plant’s production
department, and that it had affected everyone on the seniority
roster, including the assistant union steward. Denying that he
ever learned this layoff resulted from a toilet paper incident
or that he ever asserted such to McGriff, Allen averred that
it was ‘‘probably economic.’’ During cross-examination,
Allen admitted telling McGriff that this layoff resulted in
other employees having to work overtime and that it took
Respondent 2 years to again reach a full employee com-
plement in the plant.15
While denying any instructions to McGriff to conceal his
past union activities from Berger and Farmer or to tell them
he joined the Teamsters Union because he had to do so and
not because he wanted to, Allen admitted telling McGriff
that he would have to be interviewed by Berger and Farm-
er.16 Asked about the interview sequence, Allen stated that,
after himself, an applicant would next be interviewed by
Berger and then by Farmer during the same day. While such
was the normal sequence, specifically as to McGriff, Allen
only knew that ‘‘I sent Mr. McGriff back to Jack Stiff and
that would have been the last I saw of him.’’
Guenter Berger, who testified that Respondent had pre-
viously hired two Teamsters Union business agents, Leonard
Andrade and Joe Calwell, has been based at the Torrance fa-
cility since 1985 and stated that he became involved in the
interviewing of prospective employees after one driver had
been terminated for falsifying information and being in-
volved in a hit and run accident and problems concerning
theft and alcohol consumption. He testified that he and Roy
Farmer always conduct their interviews ‘‘together’’ and are
not concerned with ‘‘detail.’’ He added that the procedure is
for Stiff to arrange with him to speak to an applicant, that
Stiff provides him with the driver’s employment application,
and that he informs Farmer of the interview. As to McGriff,
Berger believes he conducted his interview ‘‘at the time
when he got through with Jack Stiff and Gene Allen, some-
where around the 8th of December.’’ With regard to what
occurred, Stiff telephoned him and set up the interview.
Thereafter, Berger went downstairs to the lobby, and ‘‘I
brought him up to my office.’’ Berger denied that the inter-
view took place in an abandoned office but admitted ‘‘there
is an abandoned office behind Mr. Stiff’s office and some-
times, yes, I do interview people there.’’ While Berger could
not ‘‘exactly’’ recall what occurred during the interview,
‘‘usually’’ he asks the applicant to wait and goes to get
Farmer. Berger stated that these interviews take no longer
than 5 to 10 minutes and that the interview with McGriff
began with questions about his name and ancestry. There-
after, Farmer mentioned that he had been in England during
World War II, and ‘‘they were talking about the war.’’ Next,
they spoke about McGriff’s family, with Berger commenting
that the Charging Party ‘‘looked pretty young’’ to have chil-
dren in college. Berger could not recall anything else but de-
nied ever discussing the Teamsters Union or asking any
questions on that subject— ‘‘I don’t ask questions like that.’’
Further, he (Berger) could not recall Farmer asking any
union-related questions, except that he (Farmer) noted that
several of McGriff’s previous employees had gone out of
business. Finally, Berger denied any discussion about griev-
ances, Kenny Thomas, or Lofton Trywick. During cross-ex-
amination, Berger admitted that, when he uses the abandoned
office for interviews, he is there alone and that he sometimes
is not available when Stiff calls for an interview. Further, as
to union-related questions, Berger stated, ‘‘I don’t ask union
questions. It has nothing to do with unlawful or being lawful.
I don’t ask that kind of question.’’
Two current full-time drivers, who sought employment and
were hired as casual drivers at approximately the same time
as McGriff, testified at the hearing. Sammy Wallace testified
that, prior to actually starting to drive for Respondent, he
was interviewed by Stiff, Allen, Berger, and Farmer at about
the same time ‘‘in their respective offices.’’ With regard to
the Stiff and Allen interviews, while not discussing what was
said, Wallace denied that either man asked him any questions
about his union activities or sympathies, discussed the filing
of grievances, mentioned layoffs, threatened to shut the plant,
or instructed him not to disclose any past union activity to
Berger and Farmer. As to his interview by Berger, Wallace
recalled that it occurred in the former’s office 3 or 4 days
after he submitted his employment application. While unable
to remember much of what was said, Wallace did testify that
Berger ‘‘asked me if I was a strong union man. . . . I told
him no, that any time I had any trouble I tried to settle it
locally and peacefully . . . if I couldn’t . . . then I went to
the grievance procedure.’’ Berger then ‘‘asked me if I held
any offices in the union.’’ After awhile, according to Wal-
lace, Roy Farmer walked into Berger’s office and asked why
he had quit working for Yellow Freight. Wallace explained
that the company was changing its business operations and
moving the truckdrivers to a different location. Farmer asked
why, and Wallace responded that such was supposed to pro-
644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 According to McGriff, a ‘‘sleeper’’ is ‘‘where there’s two drivers on the
truck, so it can be driven hours a day. One drives and one man sleeps. You
only stop for fuel, showers and food.’’
18 R. Exh. 20, a document prepared by Gene Allen, sets the necessary quali-
fications ‘‘for hire and/or casual use.’’ Qualification No. 10 states, ‘‘if used
by the Company as Casual Driver, the potential employee must receive a fa-
vorable Driver review . . . for 3 out of 5 . . . trips to be considered for hire.’’
[Emphasis added.]
19 McGriff’s evaluations were received into the record as G.C. Exhs. 4(a)-
4(f), with Exh. 4(a) being a completed evaluation by driver Kenny Thomas.
McGriff testified that this latter document was turned in blank by Thomas and
never shown to him in completed form. McGriff stated that he and Thomas
met with Stiff in the latter’s office after their sleeper run, and Thomas said
he would not fill out an evaluation form for McGriff. Later, after his fifth
sleeper trip, Stiff dispatched McGriff with Daniel Hartnett and gave him an
evaluation form. McGriff asked why, and Stiff replied that ‘‘Kenny Thomas
never filled his out so you’ve got to have another one.’’ Accordingly, McGriff
added, when he met with Stiff in order to discuss the evaluations, there was
not a completed one from Thomas. Instead, ‘‘I saw it as a blank sheet of
paper. It had nothing written on it, except my name.’’ Also, testified McGriff,
G.C. Exh. 4(e) had been altered from its condition at the time Stiff showed
it to him—‘‘someone has marked out excellent at the top and written in very
good. When . . . I saw it, that wasn’t on there.’’
With regard to the evaluations, each evaluating driver is asked to grade the
casual driver in the following categories: compatibility, initiative, resourceful-
ness, safety and courtesy on the road, attitude, and appearance. For each cat-
egory, the only possible grades are excellent, good, fair, and poor. In addition,
the evaluator is asked to comment on whether the casual driver would or
would not make a good employee and to write additional comments under
‘‘remarks.’’
20 Adams’ written evaluation contains no such comments about McGriff.
Under ‘‘remarks,’’ Adams wrote, ‘‘Not a very tidy person, has a few bad hab-
its about sleeper trucks,’’ and above this notation, he wrote ‘‘smoking in
truck.’’
21 Pursuant to art. 58 of the Teamsters Union Supplemental Agreement, after
a casual driver completes his 40th tour, he is placed on a preferential hiring
list from which all full-time drivers must be selected. McGriff understood that,
after completing 40 tours and passing the driver evaluations, Respondent’s
practice is to give a casual driver a so-called letter of intent, ‘‘which insures
[sic] you of your seniority. All it is is a letter that when they need another
permanent driver they will hire you in sequence off the letters of intent. . . .
It’s job protection.’’ He added that the purpose is Respondent’s assurance
‘‘they will use you first before they will use a casual. . . .’’
22 As to the blank Kenny Thomas evaluation, Stiff conceded that Thomas
failed to complete it but says he explained the necessity for doing so and
Thomas did the evaluation.
23 Respondent’s witnesses Allen, Berger, and Andrade denied that, like
Thomas, Trywick ever filed a contractual grievance to force himself on to Re-
spondent’s full-time driver roster; however Andrade did recall that Trywick
‘‘went to the union hall and asked some questions.’’ Stiff, who was hired after
Trywick became a full-time employee had no knowledge of the circumstances
of how Trywick attained such status.
vide ‘‘better service’’ to customers. Farmer replied, ‘‘I can
tell you why they’re moving . . . the union is breaking . . .
Yellow Freight.’’
Donald Galvin became employed by Respondent as a cas-
ual truckdriver in December 1988. He had filed an employ-
ment application the past August and been interviewed by
Stiff and Allen at that time. In December, prior to starting
to drive, he was interviewed by Berger and Farmer. As to
what was discussed, Galvin testified that the subject of the
Teamsters Union was raised, with Farmer asking if he was
a union member and Berger saying that he had once been
a member of the union. Other than the foregoing, Galvin de-
nied having been asked to conceal any union activities or
about any past grievances and denied that anything was said
about layoffs.
According to McGriff, he commenced driving for Re-
spondent on the day after his second conversation with
Allen. He drove locally for the initial couple of weeks and,
in early January 1989, ‘‘[I] started driving sleeper team for
them.’’17 He stated that he would be notified of assignments
by Stiff, who ‘‘would just call me at home and say, be in
here tomorrow you’re going to work local or be in here to-
morrow you’re going on a sleeper trip with so and so.’’ In
being assigned to runs, McGriff did not know if his was an
extra run or if he was replacing another, permanent driver.
Also, he understood that assignments were dependent upon
Respondent’s orders for goods. In any event, McGriff testi-
fied, he had completed a sufficient number of sleeper runs,
by the third week in February, to have been given all the
necessary driver evaluations,18 and he met with Stiff in his
office in order to discuss them. The Charging Party stated
that Stiff showed him five completed driver evaluations, sub-
mitted by drivers Daniel Hartnett, Ron Adams, Steve
Tavenner, Kenneth Kell, and Walt Hanes (G.C. Exhs. 4(b)-
4(f)).19 Their discussion during this meeting centered on the
Ron Adams evaluation (G.C. Exh. 4(c)) ‘‘because Ron had
complained about my smoking and said I was not a very tidy
person and Mr. Stiff explained to me I was going to have
to be more careful with my cigarette ashes.’’ Nevertheless,
Stiff said he would have to take into account Adams’ aver-
sion to cigarettes in considering his evaluation and noted that
Adams said he was an ‘‘excellent truckdriver.’’20 At the con-
clusion of the meeting, Stiff ‘‘said I passed my evaluations
and that I would get my letter of intent21 after my fortieth
tour. But he wanted me to watch my cigarette smoking in
the trucks especially when I ran with a nonsmoker.’’ Jack
Stiff specifically denied reviewing the driver evaluations with
McGriff but admitted discussing the Adams’ evaluation be-
cause of the matter of ‘‘cleanliness,’’ particularly concerning
‘‘ashes’’ in the tractor area. Stiff explained that this was
McGriff’s initial evaluation, and he wanted to impress on the
Charging Party that Respondent took ‘‘pride’’ in its equip-
ment. Stiff, also, specifically denied telling McGriff that
Adams thought he was an excellent driver. Finally, on
McGriff’s evaluations, Stiff admitted that he crossed out
‘‘excellent’’ and wrote ‘‘very good’’ on General Counsel’s
Exhibit 4(e), explaining ‘‘[S]omething sticks in my mind that
Kenny Kell either called me or in person . . . and said . . .
he considered Jim a very good employee, but he would not
rate him excellent.’’ Stiff stated that he performed the alter-
ation ‘‘at the time [Kell] told me’’ and denied showing the
document to McGriff prior to altering it.22
McGriff testified that, after starting to drive for Respond-
ent, he had no union-related conversations with any super-
visors until the first week of February 1989. Prior to this,
Lofton Trywick, a full-time driver for Respondent, intro-
duced himself to McGriff, and, during their ensuing con-
versation, they discovered that both had resided in the same
area of Indiana and had been members of the same Team-
sters Union local in Chicago. A few days later, in Jack
Stiff’s office while the latter instructed McGriff on the prop-
er method for reporting mileage, Stiff said ‘‘he’d understood
from some of the other drivers that I’d been talking to
Lofton Trywick in the drivers’ room and he recommended
that I stay the hell away from him.’’ McGriff replied that he
and Trywick both had worked in Chicago, lived near each
other, and been in the same Teamsters Union local. Stiff re-
sponded, saying ‘‘[I]f Gene Allen finds out you’re from the
same local Lofton is he’ll probably can your butt.’’ Jack Stiff
denied the occurrence of any such conversation.23
645FARMER BROS. CO.
24 Analysis of G.C. Exh. 5, McGriff’s 1989 trip sheets, establishes that he
ostensibly had been given 39 tours ‘‘toward hiring’’ by February 24, 1989,
the pay period of a trip to Sioux Falls, Bismark, and Grand Forks.
Respondent’s practice during January through March 1989 was to attach trip
sheets for that particular pay period to the casual drivers’ paychecks, and listed
on these sheets were the number of tours which had been earned by the driver
toward hiring and benefits. Acknowledging that such was Respondent’s prac-
tice, Stiff conceded that he wrote the numbers on the drivers’ tour sheets but
that such was ‘‘a mistake.’’ He testified that he was under the belief that the
trip sheets were ‘‘internal’’ documents and not intended for the casual drivers.
As to his mistake, Stiff stated that such went to calculating tours toward the
requisite 40—‘‘I was taking replacements and everything and putting them on
here. It was just a mistake on my part.’’ He attributed his error to having been
in the traffic manager position for just 4 months but could give no other
‘‘plausible explanation.’’
Stiff conceded that his ‘‘mistake’’ would have misled a casual driver into
miscalculating how many tours he had accumulated.
25 While not specifically denying the occurrence of this conversation, as will
be discussed infra, Andrade testified that any conversations with McGriff con-
cerned which tours counted toward the required total of 40.
26 There is no dispute that McGriff began demanding a letter of intent from
Stiff. In fact, according to the latter, such was a factor in his decision to no
longer utilize McGriff as a casual driver—‘‘I was just getting kind of tired
of being pestered about.’’ his letter of intent.
27 Stiff testified that ‘‘sometime the first part of April . . . the 4th to the
12th,’’ Willie Lykes ‘‘called and wanted a recap of [McGriff’s] tours of
duty.’’ Stiff added that this phone call was ‘‘after I had, myself . . . . made
the decision’’ to no longer use him as a casual driver.
28 In a pretrial statement to the Board, which he adopted as truthful at the
trial, McGriff attributed the following language to Willie Lykes, who is black:
‘‘I don’t have to do nothing for you. I is a business agent. You is a truck-
driver, and if you want to be a smart ass, I’m not going to help you at all.’’
Lykes denied making such a statement.
Sometime during March 1989 on returning from a 4-day
sleeper trip to North Dakota, McGriff discovered that he had
been given seven tour credits rather than the eight to which
he believed he was entitled. Believing that being credited for
the extra tour would have given him the requisite 40 tours
for full-time status,24 the Charging Party testified, he spoke
to Shop Steward, Leonard Andrade, about the problem. The
latter said he would speak to Stiff and get back to McGriff
but never did.25 Accordingly, believing that he should have
been awarded an extra tour credit for the above trip, some-
time in March, McGriff went to Stiff’s office and had a con-
versation with Respondent’s traffic manager. Stiff began tell-
ing McGriff that Andrade had, in fact, spoken to him, and,
after the Charging Party expressed how upset he was over
not being given an eighth tour credit for the North Dakota
sleeper trip, Stiff said he was not entitled to the additional
credit as he had not been gone a full 4 days and he (Stiff)
was obligated to strictly adhere to the contract. Stiff added
that, in any event, McGriff could not be given his tour credit
inasmuch as he had, not as yet, been interviewed by ‘‘the old
man.’’ While not denying the above conversation, Stiff did
deny the last comment.
McGriff next testified that, after a subsequent sleeper trip
to the Midwest, during which he was injured and had to be
flown home, as set forth on his next trip sheet, which cov-
ered the pay period March 11 through 24, he earned an addi-
tional seven tour credits, ostensibly enough to establish a
total in excess of 40. Thereafter, McGriff and his wife ap-
plied for a mortgage to finance the purchase of a house but
were informed he would need proof of full-time employment.
Accordingly, McGriff found it necessary to obtain the letter
of intent from Respondent, to which he believed he was enti-
tled, regarding permanent employment as a driver. On or
about March 17, he testified, he spoke to Stiff and inquired
as to being given a letter of intent, and Stiff said he would
speak to Gene Allen. On four or five occasions that week
and the next, McGriff pestered Stiff with regard to speaking
to Allen, and the latter replied each time that he had heard
nothing from Allen.26 Deciding to contact Respondent’s dis-
tribution manager on his own, McGriff placed a telephone
call to Allen’s office sometime late in March. The latter’s
secretary asked why McGriff wanted to speak to Allen and,
after being told, said he should first speak to Stiff and trans-
ferred the call to the latter. Stiff answered and, McGriff had
spoken to him earlier about the letter of intent, asked what
he wanted this time. McGriff explained what he had done,
and Stiff responded, ‘‘You son-of-a-bitch, you tried to go
over my head.’’ Stiff specifically denied this conversation.
Testifying further, McGriff decided that the best course of
action for obtaining his letter of intent was through Local
630. Initially, he attempted to contact Leonard Andrade but
he was unavailable and did not return the calls. Next, on
March 27, McGriff telephoned the office of Local 630 and
asked to speak to the business agent who serviced Respond-
ent’s drivers, Willie C. Lykes. The latter was not in but re-
turned McGriff’s call later that day. McGriff asked him sev-
eral questions pertaining to attaining permanent employee
status and obtaining a letter of intent, explained the cir-
cumstances of his problem, and told Lykes about his desire
to purchase a home. Lykes replied that he would speak to
Jack Stiff. The business agent corroborated McGriff on this
preliminary conversation and, as a result, eventually spoke to
Stiff 2 days later, on March 29. Lykes testified that ‘‘I told
him that Mr. McGriff had called and . . . he wanted to get
on the regular Board and that he had his tours of duty and
the company hadn’t hired him. . . . I told him that I needed
to set-up a meeting with him so I could find out exactly how
many tours of duty he had or . . . did not have.’’ This meet-
ing, according to Lykes, was scheduled for April 3. Eventu-
ally, however, the appointment was canceled; Lykes testified
that Stiff telephoned him on April 4 and gave him the re-
quested information.27 McGriff testified that he spoke to
Lykes, by telephone, the next day, April 5. Lykes explained
that he had spoken to Stiff about McGriff’s problem and that
‘‘Jack told him I only had twelve or thirteen tours of duty
credit.’’ The Charging Party said that his paychecks estab-
lished that he had been credited for 46 or 47 tours, but Lykes
replied, ‘‘I have an agreement, you’re not aware of with
Farmer Brothers,’’ which means that part of your tours of
duty do not count. Lykes added that the agreement means if
a casual replaces someone, it doesn’t count as a tour credit
and that he could do nothing more for McGriff.28
Meanwhile, prior to speaking to Lykes on April 5,
McGriff received a telephone call from Andrade, the shop
steward. According to the Charging Party, he explained his
problem to Andrade, and the latter promised to speak to
Stiff. Several days later, in early April, Stiff spoke to
McGriff, saying that Andrade had spoken to him. ‘‘He just
told me I better keep still about that letter of intent that I
would get it in my own good time. Just to shut up . . . and
not to be talking to Andrade.’’ Andrade corroborated
McGriff that they spoke about him receiving a letter of intent
from Respondent. Denying that such had anything to do with
the filing of a grievance, Andrade testified that, in late
March, McGriff ‘‘asked me what constituted a man becom-
ing eligible to place himself on the Board.’’ Andrade re-
646 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
29 Gene Allen testified that he telephoned Nelson on or about April 10 in
response to the latter’s letter, which had been given to him by Berger. During
the conversation, which lasted 5 to 10 minutes, he told Nelson that he was
providing a ‘‘prompt response’’ to his letter, that it was addressed to the
‘‘wrong person,’’ and that it should have been sent to him. Allen then said
that McGriff’s method of handling the matter ‘‘was causing a problem’’ and
‘‘making a lot of waves’’ because it was not in the normal ‘‘procedural man-
ner . . . through the grievance procedure.’’ According to Allen, he then in-
formed Nelson of the proper grievance procedure and told the attorney that
the letter had caused a problem because such wasn’t followed. Allen admitted
being ‘‘upset’’ during the conversation but denied saying Respondent wouldn’t
bow to pressure, threatening to close the plant, or saying others had attempted
similar tactics.
30 Berger’s version of the telephone conversation is that he telephoned Nel-
son on April 17 and said that Respondent shouldn’t have given McGriff the
records, that the calculations were in error, and ‘‘that we would not be using
Mr. McGriff any more.’’ Berger denied saying Respondent would not bow to
pressure, McGriff’s days were finished, or the company wouldn’t bow to
union pressure. He added that he did not believe that the subject of the Union
arose during the telephone conversation.
sponded that ‘‘he had to have 40 tours of duty in 120 days
as a out-and-out casual . . . over and above replacing [a]
regular employee.’’ Andrade stated that he emphasized that
the trips had to be ‘‘extra’’ and not ‘‘replacement’’ runs. The
shop steward added that McGriff may have told him how
many tours he believed he had earned and that he (Andrade)
‘‘may have’’ met with Stiff in early April and inquired as
to the exact number of tours, which had been credited to
McGriff. Stiff denied speaking to Andrade with regard to
McGriff prior to deciding no longer to use the latter as a cas-
ual driver.
Apparently undeterred by either what he had been told by
Lykes or Stiff’s admonition and determined to obtain the let-
ter of intent, to which he remained convinced he was enti-
tled, from Respondent, the Charging Party retained an attor-
ney and requested that he write a ‘‘nice’’ letter directly to
Respondent’s vice president, Guenter Berger, explaining the
problem and requesting help. The attorney, Terry Nelson,
wrote such a letter, dated April 7, in which he advised
Berger that Respondent was contractually obligated to place
McGriff on a preferential hire list after he completed 40
tours; that, by the date of the letter, Respondent had provided
documents to McGriff showing he had accrued in excess of
40 tours; that Respondent had not, as yet, placed the Charg-
ing Party on the preferential hire list; that Local 630 was un-
willing to help McGriff; that he was aware of the ‘‘side
agreement’’ between Respondent and Local 630 and believed
Respondent had ‘‘chosen to disregard’’ its terms by crediting
McGriff with the number of tours he had, by then, accrued;
and that Respondent should act in good faith by honoring its
contractual commitment and placing McGriff on a pref-
erential hire list for drivers. Nelson testified that, no more
than 6 days later, he received a telephone call from Gene
Allen, who said that Nelson’s letter had been received and
that another company official would phone him with a re-
sponse. According to Nelson, the substance of Allen’s re-
marks was that Respondent was upset about the letter be-
cause ‘‘Mr. McGriff had made waves.’’ Allen continued, ex-
plaining that Respondent ‘‘had several prior problems with
drivers or other union members lodging complaints against
them that they had to settle. . . . And that they weren’t
going to bow to that pressure at this time.’’ Nelson replied
that the purpose of his letter was not to threaten litigation but
‘‘simply’’ to resolve a misunderstanding. Allen responded,
according to the attorney, that McGriff would not be placed
on a preferential hire list and ‘‘the owners would rather shut
down the company than give in to union demands like this
one.’’29 Several days later, Nelson further testified, he re-
ceived a telephone call from Guenter Berger, who stated that
McGriff had created ‘‘a real problem’’ for Respondent; that
it would not ‘‘bow’’ to such pressure; and that McGriff was
‘‘finished’’ with Respondent as a result of his letter. Berger
added that Respondent would not accede to such ‘‘union de-
mands.’’ As to the merits of the problem, Berger said that,
while the listed tour credits on the slips which had been
given to McGriff did show he had enough credits to go on
the preferential list, ‘‘there was a mistake by the company,
it was a screw-up. . . . And that it didn’t matter whether he
had credits or not, because he made waves, he wasn’t going
to be hired.’’ Finally, Berger repeated Allen’s warning, say-
ing ‘‘the company would rather close down than bow to this
kind of pressure. . . . They had had prior . . . conflicts with
the union and they weren’t going to give in again.’’30 During
cross-examination, Nelson stated that ‘‘making waves’’ were
Allen’s and not Berger’s words; however, he was confronted
with his pretrial affidavit wherein Nelson attributed the
phrase ‘‘making waves’’ to Guenter Berger and not Gene
Allen.
On April 12, McGriff and Stiff arranged a meeting for the
next morning at 11:30 a.m. at the latter’s office. McGriff ar-
rived at the scheduled time on April 13 and, prior to entering
the traffic manager’s office, observed that his name had been
deleted from Respondent’s roster of drivers, both permanent
and casuals. According to the Charging Party, believing that
Respondent had already decided to fire him, he entered
Stiff’s office, and Stiff locked the office door. The latter
began the meeting by handing to McGriff a copy of Nelson’s
letter to Berger, then throwing it down on his desk, and ask-
ing why the driver had gone to see a lawyer. McGriff ex-
plained that he needed the letter of intent and was getting no
response from Respondent. Stiff said the letter was ‘‘a packet
of lies,’’ which McGriff denied, and accused McGriff of
lying in the letter’s initial paragraph, wherein the latter said
he had quit his last job, and asserted McGriff had been fired
for organizing a union. Then, Stiff asked why he had by-
passed Allen and himself, and McGriff replied that, since his
problem was with Stiff and Allen, Berger was the only per-
son to whom to write.
At this point, according to McGriff, someone knocked on
the door, he opened it, and Andrade entered and sat down.
Stiff said they were discussing an attorney’s letter, and
McGriff handed him a copy of Nelson’s letter. While
Andrade read it, Stiff asked the Charging Party why he want-
ed to continue working for Respondent when he wasn’t wel-
come and no one wanted to drive with him. McGriff said,
if such were the case, he would leave, but he believed many
drivers supported him and would urge him to seek Local
630’s help. Stiff became angered at this, responding ‘‘go to
the union, go to the union, that’s all you God damn Chicago
Teamsters think about’’ and saying McGriff’s membership in
Local 710 ‘‘was part of the reason I was being discharged.’’
Andrade interjected that Respondent was a small company
with many drivers related to each other and that McGriff’s
attorney’s letter had ‘‘stirred up a beehive.’’ He added that
he admittedly had avoided speaking to McGriff and that the
‘‘judge’’ in the Thomas grievance would confirm advising
647FARMER BROS. CO.
31 G.C. Exh. 15 is a copy of notes which, McGriff testified, he wrote ‘‘about
10 minutes’’ after the conversation with Stiff and Andrade. He added that said
notes were for the purpose ‘‘to record as near as I could what happened’’ and
written down based upon the advice of attorney Nelson. McGriff’s testimony
as to the reading of his notes is as follows:
A. Okay. It says, ‘‘Arrived 11/10. Jack seemed friendly. Coffee down-
stairs. Loren (phonetic) and Eddie, funny-acting. Loren as usual.
Mudron— name, not on list. Jack down got coffee, upset over Mudron.
Then upstairs. 11:40. Upstairs, no Judy. Locked door. Pulled out letter
and asked meaning. Said, ‘‘self-explanatory.’’ Pack of lies question mark.
First paragraph, dash, call Raymond, declined. Why to Berger. Proper
form. Why in first place. Adams’ threat.
Line. Andrade banged door. I let in and locked door. Jack told Leon-
ard— Jack told L to lock the door. J—which is my abbreviation for
Jack—told Leonard about letter. I gave Leonard my copy. Leonard obvi-
ously angry. Ask Leonard, saw my name gone. Pat on back. Jack ques-
tion—why work here, put on bus and sent home. Me: Go on bus ride
if not like, why phone calls from guys to go to union? Jack blew cool.
Go to union. All CTD alike. Remember about me, seven ten and steward.
Hell-raiser. Knew about deal at BM and NE. Asked J who started these
rumors. Union. Leonard, much calmer. Explain. Small company and very
tight group. Admitted to Jack being evasive. Said wanted Willie to tell
him about secret agreement. I asked about tours on my paycheck and see-
ing secret agreement. L—standing for Leonard—admitted not having se-
cret agreement. Told to go to union and read minutes of Kenny Thomas’
hearing. Says, fair deal.
Line—press Jack about letter. Jack, Okay, Mr. Union Man, we will do
it be the work. Reached behind and got contract and started to read 858
piece, paragraph C. Must not know we have our own book. Left out im-
mediately. And, then, after stopping said, ‘‘Can be out on trip or many
things.’’ Said, ‘It doesn’t say here when I have to start.’’ Picked up forms
and said, ‘‘Here, sign and I’ll start today.’’ No use you in meantime.
Promised to disqualify me in front of Leonard. I didn’t sign anything.
Asked if interested in better deal. Shoot—which is—
. . . .
Jack calmed down considerably. Said, ‘‘Always like me, no problems.’’
Bosses, too, and orders from on high, bribe offer. Job at A & R. To go
to L. Berger, always a mistake. Asked to sign resignation letter.
Line. L got in my shit about letter. Hostile. Traywick, Thomas,
Mudron. No JM. European politics writing to Berger. No Chicago truck-
drivers after Lofton Traywick. Explained about old man dying, what then.
Gave letter back to me. Don’t like shit like this. Jack asked again about
calling B and going to see him. I told Jack, very upset. Will call tomor-
row, a.m. after talking over with Jackie. Asked if definitely fired. Again,
offered letter of resignation or fired. My choice. Left room. Leonard
stayed with Jack. Downstairs. Saw Eddie Allen. Remembered his com-
ments on March 30. Out at fuel pump, saw Walt Haynes. Haynes did re-
turn, wave or speak. Out gate at 12:50. Should I sign those investigation
forms? Leonard is acting horseshit. Jack seemed very unsure of himself.
His hands are shaky as hell.
32 Stiff said this procedure was necessary if McGriff filed and won a griev-
ance, requiring a letter of intent.
33 Stiff averred that, as a casual, McGriff could not resign; Respondent
could just decide to no longer use him.
Local 630 and Respondent to memorialize their practice as
to the tours of duty requirements. McGriff replied that he
had never seen this document and asked to see it. Andrade
said he did not have one, and McGriff said he only wanted
to discuss the 46 tours of duty, which had been listed as
credited towards his hire, and whether they counted for a let-
ter of intent.
Saying ‘‘O.K. Mr. Union Man, you want to do it by the
contract,’’ Stiff pulled out a copy of the current Teamsters’
Union collective-bargaining agreement and said McGriff
would have to begin completing all the required employment
forms necessary for full-time status but ‘‘[article 58] doesn’t
say . . . when I have to start.’’ He added that many things
could result in a delay in using McGriff and that ‘‘I promise
you, I’ll find some reason to disqualify you. I’m not going
to use you.’’ McGriff asked what he had done wrong, and
Stiff said other drivers had urged him not to give McGriff
a 40th tour because he would just force himself on the
Board. Thereupon, Andrade returned the copy of Nelson’s
letter to McGriff and said the job with Respondent was a
good one and his [McGriff’s] actions could make Respond-
ent decide it no longer needed its drivers. McGriff asked if
Andrade would still support him as a union steward, and
Andrade replied that he would not put his job on the line for
McGriff and that he had fought for Trywick and Thomas but
not him. At this point, Stiff interrupted, saying, if McGriff
apologized to Berger and withdrew his attorney’s letter and,
then, resigned from Respondent, he [Stiff] would help him
obtain a job with another trucking company, A&R. McGriff,
who admitted that he lied and that he actually wanted to dis-
cuss the entire situation with his attorney, said he wanted to
speak to his wife about the offer, and the meeting ended.31
Both Stiff and Andrade testified regarding this conversa-
tion, contradicting McGriff and corroborating each other. Re-
spondent’s traffic manager testified that McGriff sought the
meeting and that he (Stiff) asked Andrade to be present. Ac-
cording to Stiff, who stated that his office door was unlocked
and that Andrade entered moments after the meeting began,
McGriff began, saying he was only pursuing the matter be-
cause Ron Adams had threatened his life. Stiff then ex-
plained that McGriff did not have enough tours for a letter
of intent, and Andrade confirmed that. Stiff conceded that he
did offer to help McGriff obtain a job with another company
and that he also offered him a chance to sign all the required
‘‘background checks’’ for permanent employment ‘‘in case
there would be a grievance, these would be signed and on
file.’’32 Stiff denied having the attorney’s letter that day, ask-
ing McGriff why he wrote it, and saying it was comprised
of ‘‘lies.’’ He further denied saying McGriff had tried to or-
ganize a union at Benjamin Moore, referring to him as a
‘‘Chicago guy or union man,’’ or conditioning finding
McGriff a job upon him withdrawing the attorney’s letter and
resigning.33 Finally, as to whether he told McGriff he had ei-
ther been fired or discharged, Stiff recalled saying: ‘‘You
know we’re no longer using you?’’
Andrade testified that Stiff informed him of the meeting
with McGriff and requested that he attend. During cross-ex-
amination, Andrade stated that he entered Stiff’s office after
the meeting had commenced but could not recall if the office
door had been locked. When confronted with his pretrial affi-
davit wherein he stated that the door was locked, Andrade
maintained his inability to recall. As to what was said,
‘‘there was mention made of a letter between Jack Stiff and
Mr. McGriff and I asked what letter. Mr. McGriff handed me
a letter from an attorney and I sat over on one side at an-
other desk and started to read the letter.’’ According to
Andrade, he paid no attention to the ensuing conversation
until hearing Stiff offer to help McGriff obtain work with
A&R. He recalled the 40 tours issue raised, and he said, on
that point to McGriff, that ‘‘my interpretation’’ was that it
only included ‘‘extra runs’’ and it did not include runs as a
‘‘replacement for someone that is off sick or on vacation or
whatever.’’ Andrade further recalled Stiff giving McGriff
some forms to complete ‘‘if this grievance goes further.’’
Andrade denied that Stiff said ‘‘O.K. Mr. Union Man,’’ that
Stiff offered to help McGriff obtain a job in return for re-
signing from the company (‘‘there was nothing for the man
to resign from.’’), or that Stiff negatively referred to ‘‘Chi-
648 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
34 In a written statement to the Board, which he adopted as truthful, McGriff
attributes to Stiff, at this meeting, a comment about ‘‘Foreigners, Jews, Blacks,
and Gooks.’’ Andrade denied hearing such a racist comment. In addition,
McGriff attributed to Andrade a characterization of Guenter Berger as ‘‘that
Kraut bastard.’’ Andrade denied the comment.
35 Stiff admitted receiving a telephone call from McGriff during the morning
of April 14.
36 Notwithstanding that his calculations appear on G.C. Exhs. 5 and 11, the
1989 trip sheets of McGriff and Wallace, Stiff maintained his awareness of
which runs counted toward the contractual total of 40 and kept additional
records (R. Exh. 23) which differentiated between replacement and extra runs.
37 On this point, Stiff stated that there was ‘‘driver talk’’ about McGriff and
related one occasion when, in the driver’s room, which is where the coffee
pot is located, he overheard some drivers discussing McGriff and saying he
was ‘‘just not the type of person that a lot of them wanted to run with. . . .
I didn’t ask specific questions.’’ Asked what he heard from drivers about
McGriff, Andrade characterized the comments as ‘‘some good, some bad’’ but
‘‘more negative than positive,’’ with the primary complaint being ‘‘to the fact
that he smoked. I have some drivers object to the way he dressed.’’
McGriff himself candidly admitted to differences with three drivers—Ron
Adams, Kenny Thomas, and Bob Ballesh. As to Adams, McGriff stated that
Adams, who had previously objected to his smoking, confronted McGriff and
his wife one day in the driver’s room and made a ‘‘rude comment’’ to
McGriff’s wife who was smoking. In response, McGriff made a nasty com-
ment to Adams. McGriff’s difficulty with Thomas concerned a run which they
made through Northern California and in driving which they became ‘‘snow
bound’’ Thomas became ‘‘intoxicated’’ and, according to McGriff, forced him
to telephone Stiff at 2 a.m. with news of their predicament. Concerning
Ballesh, McGriff says that they argued over Thomas and Trywick forming
themselves on the board and that he became upset and walked away.
38 Sammy Wallace, who eventually was hired as a full-time driver, testified
that he was offered no runs during a 6-week period from March 28 until May
14, 1989, because work was slow. According to him, he asked Stiff when he
might be given permanent status, and Stiff replied ‘‘maybe’’ when business
‘‘picked up.’’
39 The record reveals that Wallace received four evaluations, Galvin re-
ceived five, and McGriff was given six. Asked why Wallace was evaluated
four times when Respondent’s requirement is for five. Stiff averred that such
may have resulted from the pairing of casuals or from assigning a driver to
make more than one trip with a casual. Notwithstanding Wallace’s four eval-
uations, Stiff maintained that ‘‘I try to get between five and seven evalua-
tions’’ on each casual driver.
40 Noting, of course, the absence of a ‘‘very good’’ rating, Stiff said, ‘‘I
think a very good would be combining the first two categories between good
and excellent. And, if you had three or one, three of the other, then you would
have a very good out of six.’’
41 The Charging Party’s driver evaluations (G.C. Exh. 4) disclose that he re-
ceived one with all excellents; one with all goods; two with three excellents;
and three goods (both had excellent for road safety and courtesy) and one had
excellent for compatibility); one with three goods and three fairs, including
compatibility; and one with two excellents, two goods, including compatibility,
and two fairs.
The four driver evaluations of Sammy Wallace (R. Exh. 14) disclose that
he received two with all excellents; one with five excellents, including compat-
ibility, and one good; and one evaluation with three excellents and three
goods, including compatibility.
The five driver evaluations of Don Galvin (R. Exh. 19) disclose that he re-
ceived three with all excellents; one with three excellents, including compat-
ibility, and three goods; and one evaluation with all goods. Neither Wallace
nor Galvin received any ‘‘Fair’’ ratings in any category.
cago Teamsters,’’ but admitted advising McGriff to accept
the offered job.34
McGriff testified that he telephoned Stiff at home during
the evening of April 13 and that they spoke for approxi-
mately 20 minutes about the Charging Party’s problem, with
Stiff conceding that Respondent was unfair to its casual driv-
ers and telling him to resign. McGriff said that he was con-
templating another letter to Berger. Stiff advised against such
a course of conduct, saying it would put them all out of a
job. They spoke about Stiff’s offer to help McGriff find
work, and Stiff said he was under orders ‘‘from on high’’
to fire him and would do so if McGriff did not resign first.
Stiff recalled that McGriff did telephone him at home at
night but could not recall the substance of their conversation.
However, he specifically denied saying he had orders ‘‘from
on high’’ to terminate McGriff.
The next morning, April 14, McGriff further testified, he
telephoned Stiff at the latter’s office. Stiff said that he had
thought about everything and decided that McGriff’s best
course of action was to speak to Allen and Berger and work
things out. He added that each one had seen his letter and
was aware McGriff had gone to Local 630 over the problem;
Stiff said he believed a meeting could resolve everything.35
Thereupon, according to McGriff, he telephoned Gene Allen,
but the latter ‘‘said a meeting would be useless because ‘we
don’t have anything to have a meeting about. . . . As far as
I’m concerned when you went to Willie Lykes and you went
to that attorney. I’m done with you. I don’t need trouble-
makers here.’ and he hung up on me.’’ Allen denied having
any such telephone conversation with McGriff.
Regarding Respondent’s defense to the complaint allega-
tion that McGriff was terminated because of his union or
other protected concerted activities, Jack Stiff testified that
he reached the decision to no longer use the Charging Party
as a driver ‘‘somewhere towards the end of March’’ 1989
when he knew McGriff had not yet accumulated the requisite
40 tours for full-time status36 and that the decision was based
on three considerations: (1) ‘‘business was winding down
pretty slow,’’ and, with three casual drivers at that time
(McGriff, Sammy Wallace, and Donald Galvin), he wanted
to limit them to ‘‘the best two out of the three’’; (2) ‘‘We
were getting feedback that he was not very compatible with
a lot of the drivers;’’37 and (3)‘‘I was just getting kind of
tired of being pestered about . . . his letter of intent.’’ While
Stiff added that ‘‘those three combined made me arrive at
my decision,’’ his testimonial emphasis was upon the initial
factor, the seasonal decline in business. As to this, Stiff stat-
ed that the summer months are the ‘‘slower time’’ in the cof-
fee business and, while he had never previously worked for
Respondent during a slow period, he was aware from the
company’s ‘‘past history’’ which months would be slow and
what months ‘‘pick up.’’38 In any event, it was clear to him
that ‘‘we didn’t need three men on the casual board.’’ Asked
a patently leading question as to the ‘‘driver reviews,’’ Stiff
replied, ‘‘That was a determining factor in [deciding] which
one of the three would go.’’ In analyzing the driver evalua-
tions,39 Stiff testified, he concentrated on ‘‘the excellents and
very goods40 and upon the gradings for the compatibility and
road safety and courtesy categories, which are ‘‘probably two
of the most important’’ ones, with compatibility ‘‘at the
top.’’ Then, applying a so-called ‘‘mathematical’’ formula
(‘‘Apply a ten to excellent, a nine to very good, if you have
one, or a nine to good, and total up, divide it by the number
you have’’), Stiff determined that McGriff’s figures come out
the lowest of the three.41 With regard to what Stiff described
as his decision-making process, including his asserted anal-
ysis of the three casual drivers, doubt was cast on his asser-
tion that an anticipated slowdown in business constituted a
primary consideration inasmuch as, in a pretrial affidavit, he
did not list this as a motivating factor and concluded his list-
ing of the underlying considerations with the comment, there
were ‘‘no other reasons.’’
Having reached his decision to cease using the Charging
Party as a driver, Stiff further testified, he met with Gene
649FARMER BROS. CO.
42 Allen testified that Respondent strives to have ‘‘very good to excellent’’
on all casual driver evaluations and that those of McGriff did not meet this
standard.
Stiff testified that McGriff was the first driver candidate who failed the
evaluation process.
43 I credit Lykes that he never spoke in the stereotypical manner described
by McGriff, nor do I credit the latter concerning certain racial remarks assert-
edly uttered by Stiff.
44 I believe both men were probably referring to Respondent’s trucking divi-
sion rather than the entire publicly held corporation.
Allen during the morning of the Monday following
McGriff’s last driving assignment, which occurred on March
30. Their conversation was similar to one they have every
morning; several subjects were discussed, including Stiff’s
decision as to McGriff. The traffic manager raised the
former’s continued employment and said ‘‘with . . . the
compatibility, the certain nuisance factor . . . and the busi-
ness slowing down . . . . I just felt that we didn’t need him
any more.’’ Stiff added that he had reviewed McGriff’s eval-
uations, and ‘‘that was sufficient.’’ According to Stiff, Allen
agreed with him, and nothing more was said.
Gene Allen, who stated that he had had no contact with
McGriff after the initial employment interview, and denied
ordering Stiff to terminate the Charging Party or, himself,
being ordered to do so by Guenter Berger, testified that he
participated in the decision to no longer utilize McGriff as
a casual driver. According to Allen, Stiff came to his office
on Monday, April 3 and ‘‘told me . . . that he had decided
that he would not use Mr. McGriff any more and he wanted
to talk it over with me,’’ and the two walked to Stiff’s of-
fice. Contradicting Stiff who stated that Allen did not review
McGriff’s driver evaluations ‘‘in my presence,’’ Allen fur-
ther testified that, in Stiff’s office, ‘‘we went over the driver
evaluation forms and we did not feel that the evaluations that
were turned in on Mr. McGriff were of the caliber and the
standard that we wanted to achieve in hiring drivers.’’42
Allen also testified that two other factors were considered in
their decision as to McGriff: His persistence with Stiff and
the fact that he was a ‘‘nuisance’’ in ‘‘trying to get on the
board’’ and ‘‘we had . . . heard rumors from drivers, heard
conversations . . . and they were not impressed with Mr.
McGriff and they stated that.’’ Finally, Allen denied any
knowledge of McGriff’s union activities prior to participating
in the decision to no longer utilize him as a casual driver.43
B. Analysis
The determination of the legality of Respondent’s refusal
to utilize the services of McGriff as a truckdriver after April
13, 1989 is governed by the traditional precepts of Board law
in Section 8(a)(1) and (3) discharge cases, as modified by the
Board’s decision in Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 453 U.S. 989
(1982), approved in NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983). Thus, in order to establish a
prima facie violation of Section 8(a)(1) and (3) of the Act,
the General Counsel must establish (1) that the alleged
discriminatees engaged in union activities; (2) that the em-
ployer had knowledge of such; (3) that the employer’s ac-
tions were motivated by union animus; and (4) that the dis-
charge had the effect of encouraging or discouraging mem-
bership in a labor organization. WMUR-TV, 253 NLRB 697,
703 (1980). Further, the General Counsel has the burden of
proving the aforementioned by a preponderance of the evi-
dence. Gonic Mfg. Co., 141 NLRB 2091, 209 (1963). While
the aforementioned analysis was easily applied in cases in
which the employer’s motivation was straightforward, con-
ceptual problems arose in cases in which the record evidence
disclosed the presence of both a lawful cause and an unlaw-
ful cause for the discharge. In order to resolve this ambi-
guity, in Wright Line, supra, the Board established the fol-
lowing causation test in all Section 8(a)(1) and (3) cases in-
volving employer motivation. ‘‘First, we shall require that
the General Counsel make a prima facie showing sufficient
to support the inference that protected conduct was a ‘moti-
vating factor’ in the employer’s decision. Once this is estab-
lished, the burden will shift to the employer to demonstrate
that the same action would have taken place even in the ab-
sence of the protected conduct.’’ Id. at 1089. Two points are
relevant to the foregoing analytical approach. First, in con-
cluding that the General Counsel has established a prima
facie violation of the Act, the Board will not ‘‘quantitatively
analyze’’ the effect of the unlawful motive. The existence of
such is sufficient to make a discharge a violation of the Act.
Id. at 1089 fn. 14. Second, pretextual discharge cases should
be viewed as those in which ‘‘the defense of business jus-
tification is wholly without merit’’ (id. at 1084 fn. 5), and
the ‘‘burden shifting’’ analysis of Wright Line need not be
utilized. Arthur Young & Co., 291 NLRB 39 (1988).
In order to evaluate and, ultimately, to understand what
exactly transpired and the underlying motivation for this con-
duct, it is necessary to analyze and to determine the credi-
bility of the several witnesses and, in so doing, I have borne
in mind that witnesses sometimes relate an amalgam of truth
and falsehood and that, in these circumstances, it is not un-
usual—and, indeed, common—for a trier of fact to believe
some, but not all, of a witness’s testimony. At the outset, I
was most impressed with the testimonial demeanor and ap-
parent honesty of Willie Lykes, Donald Galvin, and Sammy
Wallace. Neither the Local 630 business agent nor the two
employees evidenced any interest in the outcome of this pro-
ceeding, and each shall be credited as to his testimony. Like-
wise, Attorney Terry Nelson impressed me with the straight-
forward nature of his testimony, and, although I believe he
misunderstood the nature of the threats of Allen and Berger
to close down the business rather than to accede to McGriff’s
pressure,44 his testimony must be credited. Also, Leonard
Andrade impressed me, for the most part, as being a candid
witness; while I found him somewhat evasive as to driver
Lofton Trywick’s efforts to become a permanent driver for
Respondent and do not believe his statement that Respondent
exhibited no animus toward Local 630 after the hearing and
resolution of the Kenny Thomas grievance, I find no reason
not to credit other aspects of his testimony. The degree to
which I was impressed with the testimonial demeanor of the
foregoing individuals must be contrasted with the degree to
which the Charging Party McGriff and Respondent’s offi-
cials, Stiff, Allen, and Berger failed to impress me as to their
candor. The Charging Party was the type of witness who, in
attempting to establish his credibility, achieves the opposite
effect, and I found utterly appalling his attribution of
stereotypical racist language to Willie Lykes, who denied
using such language and who, while testifying, was well-spo-
ken and obviously an intelligent witness, and racist com-
650 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
45 In finding that Respondent’s employment interviews of McGriff were not
conducted during 1 day, I do not mean to suggest that such may not have
been Respondent’s normal practice. Thus, I see nothing contradictory between
the testimony of Wallace and that of McGriff, who stated that his job with
Benjamin Moore points was the reason he was unavailable for more than one
interview at a time.
46 There are areas in which, I believe, McGriff was not candid about these
conversations. I shall specify these and explain why McGriff cannot be cred-
ited as to those areas.
47 While McGriff asserted that Allen referred to two grievances and two
drivers forcing themselves onto Respondent’s list of permanent drivers, inas-
much as there exists no evidence that any driver, other than Ken Thomas, ever
filed a grievance to force Respondent to make him full time, I can not credit
McGriff’s references to a grievance by Lofton Trywick. However, I do not
mean to suggest that Trywick may not have gone to Local 630 and, through
informal means, questioned his employment status. Noting Leonard Andrade’s
statement that Trywick had asked questions about his status and a McGriff
conversation with Stiff, which I shall discuss and credit the former, I think
the record, as a whole, warrants the inference that Trywick, indeed, raised a
problem for Respondent regarding attaining permanent driver status.
48 I don’t credit McGriff’s improbable testimony that, prior to his interview
with Berger, he (McGriff) spoke to Jack Stiff, and the latter said that Berger
would interrogate him about his union activities and that he should minimize
his prior conduct. Thus, I note that one would expect that Stiff would have
given the same instructions to other driver applicants; however, both Sammy
Wallace and Don Galvin, whom I credit, denied receiving any such instruc-
tions. Accordingly, as I find nothing unique about McGriff or his situation so
as to have warranted special treatment by Respondent, I do not credit McGriff
in this respect.
ments to Stiff and Andrade, which were credibly denied by
the latter. Stiff, Allen, and Berger impressed me as being ut-
terly disingenuous witnesses whose main purpose, in testi-
fying, appeared to be to buttress Respondent’s position dur-
ing the trial and not to be truthful. Yet, notwithstanding my
utter lack of confidence in the truth of the latter four witness’
respective testimony and given their testimonial conflicts
over all aspects of this matter, credibility resolutions are re-
quired. I have done so based on the record as a whole, con-
centrating on factors such as conflicts with more credible
witnesses and supposedly corroborative ones, the types of
questions asked and answered, and on the reasonable nature
of the testimony.
At the outset, without regard to the substance of the
McGriff employment interviews, Respondent challenged the
Charging Party’s testimony that said interviews were con-
ducted on separate days over a 3-month period, asserting that
the interviews of Stiff, Allen, Berger, and Roy Farmer oc-
curred on the same day in early December 1988. However,
analysis of the testimony of Respondent’s managers reveals
blatant contradictions. Thus, according to Stiff, after inter-
viewing McGriff, he (Stiff) escorted the Charging Party to
Allen’s office, instructed the latter to arrange for Berger to
interview McGriff, and did not see the Charging Party again
until after his interview with Berger. To the contrary, Allen
testified that, on the conclusion of his interview with
McGriff, he (Allen) sent the Charging Party back to Stiff and
did not see him again. Further contradicting Stiff, Berger tes-
tified that, after the former arranged his interview with
McGriff, he went to the office lobby to meet the Charging
Party. These contradictions, in my view, cast doubt on Re-
spondent’s contention regarding the timing of the interviews.
Moreover, I can see no reason why, in gaining no advantage
by doing so, McGriff would have fabricated his testimony as
to the timing of his interviews or as to the location of his
eventual interview with Berger, an abandoned office behind
Stiff’s. Concerning this latter point, McGriff, candidly I be-
lieve, pointed out that he would not have known of the exist-
ence of this room but for the fact that Berger spoke to him
there, and Berger himself admitted interviewing job appli-
cants in that office. The foregoing convinces me that
McGriff was truthful as to the timing and sequence of his
interviews with Respondent’s managers, and he shall be
credited in this regard.45
Turning to the substance of the employment interviews,
Respondent’s apparent invention as to the timing and se-
quence of such strongly suggests that McGriff also ought to
be credited about what was said. Several factors support this
view. Initially, I note that, corroborating McGriff, Allen ad-
mitted having volunteered, in connection with their discus-
sion of the contractual grievance procedure, that Respondent
had experienced a prior layoff, involving the production em-
ployees affecting and everyone on the seniority roster, in-
cluding the assistant union steward, and that the layoff re-
sulted in other employees working overtime. Also, Allen
conceded that the subject of J. B. Hunt having lower labor
costs than Respondent was discussed, including Allen saying
that he considered using that company as an alternative
source of trucking. Next, while Allen denied ever referring
to Farmer as ‘‘the old man,’’ Andrade, whom I credit, con-
troverted him on this point. Further, while Berger denied ask-
ing McGriff any questions about the Teamsters Union and
declared ‘‘I don’t ask questions like that,’’ Wallace corrobo-
rated McGriff and contradicted Berger, credibly stating that
Berger asked if he was a strong union man and if he had
held any union office. Finally, while Berger could not recall
Farmer asking any questions about the Teamsters Union,
Galvin corroborated the testimony of McGriff, credibly stat-
ing that, during his interview by Farmer, the latter asked if
he was a Teamsters Union member. Based on what I per-
ceive as fabricated testimony by Respondent’s managers re-
garding the timing and sequence of McGriff’s employment
interviews and the above-described controverted testimony, I
conditionally credit46 the Charging Party’s more believable
testimony regarding the substance of his interviews with
Stiff, Allen, Berger, and Farmer.
Accordingly, I find that the Charging Party was initially
interviewed by Stiff and that, during that conversation,
McGriff informed Stiff about his position as union steward
for Teamsters Local 710 in Chicago and Stiff cautioned him
to forget such activities with Respondent and to keep quiet
about his former union office. Three or 4 days later, McGriff
was interviewed by Allen, and the latter warned McGriff
that, inasmuch as two other drivers had forced themselves
onto Respondent’s regular driver roster and, in so doing, had
‘‘really caused a lot of trouble,’’47 he should not attempt to
do so. McGriff’s next employment interview was with
Berger 3 days after the Allen interview,48 and I find that
Berger asked if McGriff had ever been an officer or a stew-
ard for the Teamsters Union; that, after asking McGriff if the
Teamsters had caused any of his prior employees to declare
bankruptcy, Berger asked if he was a ‘‘strong union man;’’
and that, after he (McGriff) replied that he had joined as a
requirement for employment, Berger replied ‘‘Good, we
don’t need any more union trouble around here.’’ Later that
week or early the next, McGriff again spoke to Allen, who
discussed Respondent’s drivers’ manual with McGriff. Even-
tually, the discussion turned to the contractual grievance and
arbitration procedure, and Allen said that Respondent was a
unique union shop in that the union steward was a former
651FARMER BROS. CO.
49 While Wallace and Galvin generally denied being threatened with layoffs
or possible subcontracting, neither specifically denied what was alleged by
McGriff. Moreover, Allen himself admitted that such were discussed but in
a different context.
50 That Farmer exhibited such antiunion feelings was corroborated by
Sammy Wallace who testified that, after asking why Wallace’s then-employer
(Yellow Freight) was relocating its hauling operations, Roy Farmer said, ‘‘[I]
can tell you why they’re moving . . . the union is breaking . . . Yellow
Freight.’’
51 I credit Lykes over the less-than-candid Stiff that he spoke to Respond-
ent’s traffic manager regarding McGriff’s tours of duty on March 29 and April
4.
union business aspect and that this meant ‘‘most problems
could be settled right in the office without going down-
town.’’ Thereupon, Allen continued, saying that they ‘‘don’t
dare’’ have any union problems, that Respondent could sub-
contract its driving operations to a nonunion company, J. B.
Hunt, for less than its current hauling costs, and, that Berger
was ‘‘trying to get the old man to . . . [subcontract] to a
. . . nonunion independent contractor,’’ and ‘‘Any union
trouble we have here just adds fuel to the fire.’’ Allen then
stated that McGriff should understand how Respondent oper-
ates and described how Roy Farmer had once become so an-
gered by numerous petty grievances, including one con-
cerning toilet paper, filed by the union steward at the Tor-
rance warehouse that all the employees, including the stew-
ard, at that facility were laid off for a period of 2 or 3
years.49 Significantly, while conceding that he ‘‘volun-
teered’’ this information, Allen failed to explain why he
chose to do so during a discussion about the grievance proce-
dure. Also, he could not explain why Respondent would con-
tinue a layoff while, at the same time, forcing employees to
work overtime to do the work. Finally, McGriff was inter-
viewed by Farmer after having driven for at least 2 months,
and, during the course of the conversation, Farmer asked
‘‘How do you feel about the union yourself, are you a strong
union man?’’ After McGriff said that he had filed just one
grievance in 18 years, Farmer mentioned the Kenny Thomas
grievance and explained ‘‘Well, that guy doesn’t realize how
close he came to putting a lot of people out of work.’’50
The foregoing statements, made by Respondent’s managers
to the Charging Party during his employment interviews, re-
veal an employer who, while perfectly willing to hire former
or present Teamsters Union officers and members, appears
absolutely unwilling to tolerate union interference with the
conduct of its internal business affairs; had undergone a trau-
matic experience caused by the filing of a contractual griev-
ance, which Local 630 processed and advocated and which
resulted in the granting of full-time status to a driver over
Respondent’s objections; and, accordingly, embarked on a
policy of coercing new employees from engaging in similar
protected concerted activities. The apparent depth of Re-
spondent’s animus in this regard is revealed by its following
reactions to McGriff’s conduct. Thus, in early February, Jack
Stiff spoke to the Charging Party, who had recently became
acquainted with driver Lofton Trywick, also a former Team-
sters Local 710 member, and, crediting McGriff, a more reli-
able witness than Stiff in most instances, the latter said he
‘‘understood’’ McGriff had been seen speaking to Trywick
and ‘‘recommended that I stay the hell away from him.’’
When McGriff protested, Stiff warned ‘‘[If] Gene Allen finds
out you’re from the same local . . . he’ll probably can your
butt.’’ Then, after McGriff began questioning Stiff as to
when he would receive his letter of intent, after McGriff
spoke to Leonard Andrade about his problem, after McGriff
spoke to Willie Lykes about what he perceived as his con-
tractual right to the letter, after Lykes, in turn, questioned
Stiff about McGriff’s accrued tours of duty,51 after McGriff
retained an attorney, Terry Nelson, and in response to the
latter’s letter, Allen and Berger spoke to the attorney. Ac-
cording to Nelson, whom I credit, Allen was the first to tele-
phone him and told the attorney that Respondent had several
prior problems with union members ‘‘lodging complaints’’
against it and would no longer ‘‘bow’’ to such pressure and
that the owners would rather ‘‘shut down’’ than give in to
such ‘‘union demands.’’ Then, Berger telephoned Nelson,
and he reiterated that McGriff had created ‘‘a real problem’’;
that Respondent had ‘‘prior . . . conflicts’’ with Local 630
and would rather ‘‘close down’’ than ‘‘bow’’ to such pres-
sure, and that, notwithstanding the merits of McGriff’s con-
tractual claim, ‘‘[He] wasn’t going to be hired.’’ Finally, on
April 14, after learning the previous day that he would no
longer be utilized as a casual driver by Respondent, McGriff,
whom I credit over the mendacious Gene Allen, telephoned
the latter and attempted to arrange a meeting, but Allen re-
fused, saying ‘‘as far as I’m concerned when you went to
Willie Lykes . . . . I’m done with you. I don’t need trouble-
makers here.’’
In seeking the aid of his local union to help resolve his
work dispute, the Charging Party engaged in obvious union
activity. Further, by directly asserting his perceived contrac-
tual right to Stiff and continually demanding action, McGriff
engaged in protected concerted activities. NLRB v. City Dis-
posal Systems, 465 U.S. 822 (1984). In this regard, whether
he was correct or incorrect in light of the October 4, 1988
letter of agreement between Respondent and Local 630,
McGriff’s contention was based on the trip sheets which
credited him with in excess of 40 tours of duty toward hir-
ing. As the above recital of the credited record evidence es-
tablishes, not only was Respondent well aware of McGriff’s
activities, conduct regarding which Allen had specifically
warned him, but also Respondent’s apparent motivation, in
removing McGriff’s name from its roster of casual drivers
and, in effect, terminating its employment relationship with
him, was his union and other protected concerted activities.
Thus, Allen specifically told McGriff that the Charging Par-
ty’s act in going to Local 630 with his complaint was the
reason for his removal from Respondent’s roster of casual
drivers, and both Stiff and Allen conceded that one consider-
ation in their decision to no longer utilize McGriff as a cas-
ual driver was his pestering of Stiff about his contractual let-
ter of intent. In these circumstances, based on the record as
a whole, I find that the General Counsel has made a prima
facie showing sufficient to establish that Respondent was un-
lawfully motivated in removing McGriff’s name from its ros-
ter of casual drivers, thereby engaging in conduct violative
of Section 8(a)(1) and (3) of the Act.
Analysis of what I perceive as the sham nature of Re-
spondent’s defense to the above findings lends credence to
them. Thus, taking Stiff’s testimony at face value, an antici-
pated seasonal slowdown in business operations and a con-
sequent reduced demand for the services of casual drivers
precipitated his decision to reduce Respondent’s casual driver
complement from three to two drivers. However, not only
did Stiff fail to mention this asserted seasonal business slow-
652 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
52 Both Allen and Stiff raised McGriff’s lack of compatibility with other
drivers as a reason for deciding to no longer use his services. However, as
my impression of the testimonial demeanor of each manager was that he was
a disingenuous witness, I believe that slight credence should be given to this
assertion. In this regard, I note that the bases, underlying the testimony of
each, was uncorroborated ‘‘feedback’’ and ‘‘rumors’’ and that the driver eval-
uations of McGriff in this category were all excellent or good, with the only
exception being the evaluation submitted by Ron Adams, a nonsmoker who
was apparently unable to cope with McGriff’s smoking habit. This was cor-
roborated by Leonard Andrade who testified that he had heard ‘‘some good,
some bad’’ about McGriff with negative comments concerned ‘‘with the fact
that he smoked.’’ Further, McGriff admitted to a personality conflict with Ron
Adams over his smoking. Even assuming some problem with one driver in-
volving smoking, Respondent never asserted that such, alone, would have
formed the basis for the discharge decision and, given the sham nature of what
I perceive as Respondent’s predominant rationale, I do not believe Respondent
would have ceased utilizing McGriff absent his protected concerted activities.
down as an underlying basis for his decision to no longer use
McGriff as a driver in his pretrial affidavit—an omission
which I find striking—but also Allen, with whom Stiff sup-
posedly consulted on the decision, likewise failed to mention
the above as a reason for no longer employing McGriff.
These omissions make the conclusion inescapable that Jack
Stiff utterly fabricated the seasonal slowdown as a rationale
for deciding to no longer utilize McGriff. In so concluding,
I do not find that no seasonal slowdown may have occurred;
rather, I simply do not believe that such was, in any way,
an underlying consideration in Respondent’s decision to
cease using the Charging Party. In these circumstances, inas-
much as Respondent’s asserted need to reduce its casual
driver complement was predicated upon the above fabricated
rationale, it logically follows that Stiff’s testimony in this re-
gard was likewise a canard. The foregoing leads directly to
the matter of the casual driver evaluations comparison. In
this regard, I can perceive of no reason not to credit the
Charging Party’s testimony over the, I believe, less than can-
did denial of Stiff that they met and discussed McGriff’s
driver evaluations and that Stiff assured the former that he
had ‘‘passed’’ this testing process. As to this, there exists no
reason for McGriff to have fabricated the fact that he and
Stiff discussed his evaluations, and, indeed, the detail, in-
cluded in his testimony, suggests that such a joint review did
occur. Further, while Allen, who testified at length about
them, stated that he and Stiff reviewed McGriff’s evaluations
together and determined they were not of a high enough cal-
iber for the Charging Party to continue driving for Respond-
ent, Stiff specifically denied that Allen ever reviewed
McGriff’s driver evaluations ‘‘in my presence.’’ Given
Stiff’s fabricated testimony regarding the need to reduce the
casual driver complement, the foregoing convinces me that
not only was no comparison made of the casual drivers’
evaluations for McGriff, Wallace, and Galvin but also no
negative analysis was made of McGriff’s evaluation and that
Respondent’s defense to the complaint allegations was noth-
ing but a pretext52 designed to disguise its true motive for
no longer utilizing McGriff as a driver—Respondent’s belief
that the Charging Party was a ‘‘troublemaker’’ for having
complained to both Local 630 and directly to it regarding his
perceived contractual right to a letter of intent. This conclu-
sion is, of course, buttressed by the pretextual nature of Re-
spondent’s defense. Seaboard Farms of Athens, 292 NLRB
776 (1989); Asociacion Hospital Del Maestro, 291 NLRB
198 (1988).
Based on the foregoing, and the record as a whole, the
conclusion is warranted, indeed mandated, that the alleged
discriminatee McGriff was terminated because he engaged in
union and other protected concerted activities. Clearly, what-
ever tolerance Respondent may have had for hiring former
or present Teamsters Union members or officials clearly did
not extend to using the Union to complain about, question,
or protest Respondent’s business decisions and acts. There
can be no doubt, and I find, that Respondent’s act of striking
McGriff from its roster of casual truckdrivers—clearly, the
equivalent of a termination—constituted a violation of Sec-
tion 8(a)(1) and (3) of the Act. Hoover’s Audio Visual, 291
NLRB 1177 (1988). Prince Trucking Co., 283 NLRB 806
(1987). Additionally, Respondent admitted terminating
McGriff, in part, because he directly complained to it about
perceived contract problems, and such was violative of Sec-
tion 8(a)(1) of the Act. City Disposal Systems, supra. More-
over, the record reveals that Respondent, through its man-
agers, engaged in additional unlawful acts and conduct. Thus,
during McGriff’s initial employment interview with Jack
Stiff, the latter instructed the Charging Party to keep quiet
about his prior union activities, thereby coercing him in the
exercise of his Section 7 rights and violating Section 8(a)(1)
of the Act. Trover Clinic, 280 NLRB 6 at fn. 1 (1986). Like-
wise violative of Section 8(a)(1) was Stiff’s later warning to
McGriff regarding associating with Trywick—that, if Allen
discovered they were members of the same Chicago Team-
sters Local, he (Allen) will ‘‘can your butt.’’ Such a threat
against associating with known or suspected union pro-
ponents is clearly coercive and unlawful. T&T Machine Co.,
278 NLRB 970, 974 (1986). During his employment inter-
view with McGriff, after stating that Respondent did not
‘‘dare’’ undergo any union problems, Allen volunteered the
information that Berger tried to convince Farmer to sub-
contract Respondent’s trucking operation to a nonunion inde-
pendent contractor and that, in response to a petty toilet
paper grievance filed by a union steward, Farmer had or-
dered the layoff of all warehouse employees, including the
steward, with such lasting for 2 or 3 years and notwith-
standing that other employees were forced to work overtime.
Clearly, rather than being statements of fact or opinion, Al-
len’s comments constituted thinly veiled threats of adverse
consequences resulting from Respondent’s truckdrivers caus-
ing problems involving Teamsters Local 630. Such conduct
was blatantly violative of Section 8(a)(1) of the Act.
Baddour, Inc., 281 NLRB 546, 548 (1986); Bay Area-Los
Angeles Express, 275 NLRB 1063 (1985). Additionally, in
the same conversation, Allen told McGriff that ‘‘[M]ost
problems could be settled right in the office without going
downtown.’’ There is no doubt that the former meant that
problems could be resolved without involving the Teamsters
Union; in the above circumstances, Allen’s words must be
construed as a warning not to involve the Union in griev-
ances and must be found violative of Section 8(a)(1) of the
Act. Prince Trucking Co., supra. Also, with regard to Allen,
during his April 14 telephone conversation with McGriff, he
told the Charging Party ‘‘when you went to Willie Lykes
. . . . I’m done with you. I don’t need troublemakers.’’ Be-
sides clearly revealing the unlawful motivation, underlying
Respondent’s decision to terminate McGriff, that remark was
itself violative of Section 8(a)(1) of the Act. Hoover’s Audio
Visual, supra. Finally, with regard to additional allegedly un-
653FARMER BROS. CO.
53 With regard to the April 13 conversation, between McGriff, Stiff, and
Andrade, I credit the testimony of Andrade, corroborating that of Stiff, as to
what was said and, as a result, discern nothing unlawful said by Stiff.
54 The record is unclear whether Galvin or Wallace actually were hired sub-
sequent to McGriff and there is no evidence that McGriff would have earned
his required 40 tour credits prior to either Galvin or Wallace.
55 I found the cases cited by counsel for both parties to have been of little
help. Thus, in Hoover’s Audio Visual, supra, there was no permanent, full-time
employee roster; while in Retail Delivery Systems, 292 NLRB 121 (1988), the
casual driver was a ‘‘full-time college student,’’ and there was no issue of
placing him on the employer’s full-time driver roster.
lawful conduct, the record discloses that Berger and Farmer
separately interrogated McGriff about to his union activities
and sympathies—Berger asking whether McGriff had been
an officer or a steward for the Teamsters and whether he was
a ‘‘strong union man’’ and Farmer inquiring ‘‘[H]ow do you
feel about the union yourself, are you a strong union man?’’
A determination of the lawful or unlawful character of said
questioning depends upon whether, in the totality of cir-
cumstances, the interrogation reasonably tended to restrain,
coerce, or interfere with rights guaranteed by the Act.
Rossmore House, 269 NLRB 1176 (1984), enfd. 760 F.2d
1006 (9th Cir. 1985). While not all employment interview in-
terrogations as to union membership, sympathies, and activi-
ties are unlawful (Jamco, 294 NLRB 896, 898–899 (1989)),
I believe that the conduct of both Berger and Farmer was
violative of Section 8(a)(1) of the Act. Thus, the interroga-
tions were done by Respondent’s two highest management
officials in offices which clearly established, to McGriff, a
situs of authority. Further, the questions of each manager
were accompanied by statements indicating hostility to the
Teamsters Union. Finally, of course, the questions were
asked by two officials who, McGriff knew, possessed the ul-
timate authority as to hiring him. Under these circumstances,
I find the foregoing interrogation to have been unlawfully co-
ercive. Lassen Community Hospital, 278 NLRB 370, 374
(1986).53
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and
in a business affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Local 630 is a labor organization within the meaning
of Section 2(5) of the Act.
3. By ceasing to utilize McGriff’s services of striking his
name from its roster of casual drivers, thereby terminating its
employment relationship with McGriff because he sought the
aid of Local 630 in asserting a perceived contractual right,
Respondent engaged in conduct violative of Section 8(a)(1)
and (3) of the Act.
4. By terminating McGriff because he complained directly
to it about a perceived contractual right, Respondent engaged
in conduct violative of Section 8(a)(1) of the Act.
5. By interrogating McGriff as to his union sympathies,
Respondent engaged in conduct violative of Section 8(a)(1)
of the Act.
6. By warning McGriff to keep quiet about his prior union
activities, Respondent engaged in conduct violative of Sec-
tion 8(a)(1) of the Act.
7. By impliedly threatening to subcontract its trucking op-
erations to nonunion companies and layoffs if any employees
caused union problems, Respondent engaged in conduct vio-
lative of Section 8(a)(1) of the Act.
8. By informing employees that problems could be re-
solved without the necessity of involving the Union and fil-
ing grievances, Respondent engaged in conduct violative of
Section 8(a)(1) of the Act.
9. By informing McGriff that he was being terminated for
having sought the help of the Teamsters Union in resolving
his perceived contractual problem, Respondent engaged in
conduct violative of Section 8(a)(1) of the Act.
10. The unfair labor practices set forth above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
11. Unless specifically found above, Respondent engaged
in no other unfair labor practices.
THE REMEDY
Having found that Respondent engaged in serious unfair
labor practices within the meaning of Section 8(a)(1) and (3)
of the Act, I shall recommend that Respondent be ordered
to cease and desist therefrom and to undertake certain actions
designed to effectuate the policies and purposes of the Act.
I have concluded that Respondent, in effect, unlawfully ter-
minated James L. Stayton-McGriff on or about April 13,
1989. The standard Board remedy, in such cases, of course,
involves reinstatement to the employee’s former job or, if
such doesn’t exist, to a substantially equivalent one, and a
make whole remedy. Herein, counsel for the General Coun-
sel contends that reinstatement for McGriff must be without
prejudice to his seniority rights; that drivers Wallace and
Galvin, who were hired as casual drivers at approximately
the same time as McGriff, have achieved full-time status;
that to order the Charging Party reinstated only as a casual
driver, in light of Respondent’s demonstrated animus against
him, would permit Respondent the opportunity to never uti-
lize his services; and that the policies and purposes of the
Act would best be served by ordering Respondent to reinstate
McGriff as a full-time driver. Arguing to the contrary, coun-
sel for Respondent asserts that McGriff may only be rein-
stated to the ‘‘same status’’ be enjoyed prior to any discrimi-
nation against him and that, to find otherwise would be puni-
tive rather that remedial in nature. Having given careful con-
sideration to both arguments, it is clear to me that, as of the
date of this decision, McGriff, undoubtedly, would have
earned more than the required 40 tours of duty—when con-
sidered in light of the October 4, 1988 Letter of Agree-
ment—to be eligible for full-time driver status, and I have
concluded that Jack McGriff advised McGriff that the latter
‘‘passed’’ his driver evaluations. Further, any uncertainty as
to the number of tour credits McGriff would have earned
must be resolved in favor of the discriminatee and not the
wrongdoer. Gulf States United Telephone Co., 253 NLRB
603 fn. 2 (1980). On the other hand, while Respondent did
make Wallace and Galvin full-time drivers,54 there is no evi-
dence that Respondent has needed another full-time driver or
that other casual drivers, hired subsequent to Galvin, Wal-
lace, or McGriff, have been offered full-time status. Accord-
ingly, absent such evidence, which, if such exists, can be ad-
duced at the compliance stage of this proceeding, I shall rec-
ommend that Respondent be ordered to reinstate the Charg-
ing Party, with a standard letter of intent, to the top of its
preferential hiring list55 and, in accord with Article 58(c) of
the contract between Respondent and Local 630, to offer
654 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
56 If, of course, there have been other drivers, who were hired subsequent
to McGriff, Wallace, and Galvin as casual drivers and who have been made
full-time drivers, Respondent should be ordered to reinstate McGriff as a full-
time driver, with a seniority date above any such drivers.
57 Under New Horizons, interest is computed at the ‘‘short-term federal
rate’’ for the underpayment of taxes as set forth in the 1986 amendment to
26 § U.S.C. 6621. See generally Isis Plumbing, 138 NLRB 716 (1962).
58 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 objec-
tions to them shall be deemed waived for all purposes.
59 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
McGriff full-time driver status at the first available oppor-
tunity.56 Further, I shall recommend that Respondent be or-
dered to immediately make McGriff whole for all wages lost
as a result of its discriminatory refusal to utilize his services
as a casual driver since on or about April 13, 1989, the back-
pay to be computed in the manner prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as computed
in New Horizons for the Retarded, 283 NLRB 1173
(1987).57 Additionally, I shall recommend that Respondent
post a notice, setting forth its obligations.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended58
ORDER
The Respondent, Farmer Brothers, Torrance, California, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Ceasing to utilize the services of casual drivers and re-
moving their names from its roster of drivers because they
seek the aid of their union concerning potential contractual
grievances or complain directly to Respondent concerning
potential contractual grievances.
(b) Interrogating employees as to their union sympathies.
(c) Warning employees to keep quiet about their prior
union activities.
(d) Impliedly threatening to subcontract its trucking oper-
ations to nonunion companies and/or layoffs if employees’
actions result in problems with the union.
(e) Informing employees that problems can be resolved
without the necessity of involving the union and or/filing
grievances.
(f) Informing employees that they are being terminated for
having sought the aid of the union in resolving contractual
grievances.
(g) In any like or related manner interfering with, coerc-
ing, or restraining employees in the exercise of their rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Place James L. Stayton-McGriff’s name at the top of
its preferential hiring list with an accompanying letter of in-
tent, offer him full-time drivers status at the first available
opportunity, and make him whole for any loss of earnings
he may have suffered by reason of the discrimination against
him in the manner set forth in the remedy section above.
(b) Remove from its files any reference to unlawfully re-
fusing to utilize McGriff since on or about April 13, 1989,
and to removing McGriff’s name from its list of casual driv-
ers, and notify him in writing that this has been done and
that evidence of this unlawful action will not be used as a
basis for future personnel action against him.
(c) Preserve and, on reasonable request, make available to
the Board or its agents, for examination and copying, all pay-
roll records, social security payroll records, timecards, per-
sonnel records and reports, and all other records required to
analyze the amount, if any, of backpay due under the terms
of this Order.
(d) Post at its offices and facilities, copies of the attached
notice marked ‘‘Appendix.’’59 Copies of the notice, on forms
provided by the Regional Director for Region 31, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.