John J. Hudson, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1985

275 N.L.R.B. 874 (N.L.R.B. 1985)

874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
John J. Hudson, Inc. and General Teamsters,
Chauffeurs , Warehousemen and Helpers , Build-
. ing Materials; Heavy Highway Construction
Employees Local Union No. 404 , a/w Interna-
tional Brotherhood of Teamsters ; Chauffeurs,
Warehousemen and Helpers of America. Case
'1-CA-20200
28 June 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 26 September 1984 Administrative Law
Judge Harold Bernard Jr. issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and ;the General Counsel filed an an-
swering brief.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I -and
conclusions only to- the extent consistent with -this
Decision and Order.2 -
The Respondent is engaged in the sale, distribu-
tion, and application of asphalt products from its
facilities located in Providence, Rhode Island, and
North Wilbraham,' Massachusetts. The Respond-
ent's approximately 25 • drivers and helpers em-
ployed at' its Providence facility have been repre-
sented by -the Teamsters Union for many years.
The North Wilbraham employees have never been
represented by any labor organization. The Re-
spondent- employed' five drivers and helpers at
North. Wilbraham-until 27 August 19833 when it
laid off three employees.
On 23 August three of the North Wilbraham em-
- ployees signed Teamsters authorization cards. One
more employee-signed a card on 24 August and the
cards were submitted to the Union the next day.
The Respondent's North Wilbraham supervisory
salesman Arthur. House informed its operations
manager Frank Hudson on 24 August of the. em-
ployees' organizational efforts. The next day
Hudson directed House to lay off three employees
i, The Respondent has excepted to some of the judge's credibility, find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully, examined the record and find no basis for reversing
the findings. - . -
2 We find merit in the: Respondent 's exception to the judge 's recom-
mendation that it be,required to post notices at both its North Wilbraham
and Providence facilities The' Board requires notice postings on a com-
panywide basis only-where there is a clear pattern or practice of unlaw-
ful conduct, which we do not find here Accordingly, we shall order the
Respondent to post the attached notice only at its North Wilbraham facil-
ity'
3 All dates are 1983 unless otherwise indicated.
275- NLRB No. 123
in order of seniority effective Friday, 27 August.
Thereafter, on -26 August House approached em-
ployee Charles Sanford who was wearing a Team-
sters button and told him, "I think you guys are
killing yourself [sic]' over what you're trying to
pull." There was no other discussion regarding the
Union.
We adopt the judge's finding that Arthur House
was a supervisor and the Respondent's managerial
agent and that his 26 August statement to Charles
Sanford violated Section 8(a)(1) of the Act.4
However, for the - reasons set forth below, we
disagree with the judge's finding that the Respond-
ent violated Section 8(a)(3) and (1) of the Act by
laying off three employees at its North Wilbraham,
Massachusetts facility on 27 August 1983.
In finding a violation of Section 8(a)(3) and (1),
the judge found that the General Counsel estab-
lished a prima facie case that the layoffs were un-
lawfully motivated.5 In making his finding, the
judge relied on the above-related statement by
House as establishing union animus on the part of
the Respondent affecting the layoff. We believe the
judge's finding in this regard ignores the weight of
the record evidence. Thus, the record reflects that
the Respondent has recognized the Teamsters as
the collective-bargaining representative of its em-
ployees at its main facility in Providence, Rhode
Island, -since 1956. During the parties' collective-
bargaining relationship, not one written grievance
nor unfair-labor practice charge has been filed by
the Teamsters, the same Union conducting 'the or-
ganizational drive at North Wilbraham. Further,
House played no part in the Respondent's decision
to lay off the employees. Rather, he was instructed
by Frank Hudson, who is responsible for labor re-
lations at both of the Respondent's facilities, to lay
off the three least senior employees and this in-
struction occurred prior to House's unlawful state-
ment. Under these circumstances we cannot con-
clude that House's subsequent statement to an em-
4 Although the Respondent excepted to the judge's finding that House
is a supervisor and its agent , it stipulated at the hearing that he is a mana-
gerial employee and that he exercises independent judgment in making
work assignments Further the record reveals that House hired employee
Kenneth Longtin, an alleged discnminatee
Contrary to his colleagues , Member Hunter would find that House's
remark under the circumstances was too ambiguous to constitute a threat
or otherwise interfere with employee Sanford' s union activities Accord-
ingly, he would dismiss this 8(a)(1) allegation -
6 As noted above, MemberHunter would not find that House's remark
to employee Sanford violated Sec 8(a)(1) Member Hunter further finds
that House's subsequent remark to two of the laid-off employees that
"there was no work for obvious reasons" is ambiguous Accordingly, and
noting House played no part in the Respondent's decision to lay off the
employees , Member Hunter concludes that neither statement supports a
finding of union annnus and he agrees that the General Counsel has failed
to establish a prima facie case with respect to the alleged unlawful lay-
offs
JOHN J HUDSON, INC 875
ployee establishes the requisite element of union
animus affecting the layoff. There is no other evi-
dence of union animus. We find, therefore, that the
General Counsel has failed to meet her burden of
establishing a prima facie showing to support an in-
ference that the employees' protected activities
were motivating factors in the Respondent's deci-
sion to lay off three of its' employees. As no prima
facie case exists, it is not necessary to pass on the
validity of the Respondent's asserted ecomonic de-
fenses and the judge's analysis of same.- Hardwick-
Co., 263 NLRB 302 (1982); Mini Industries, 255
NLRB 995 (1981).
Accordingly, we reverse the judge's finding that
the Respondent violated Section 8(a)(3) and (1) of
the Act and shall order that those allegations be
dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6),
and (7) of the Act. '
2. By threatening employees with economic re-
taliation if they selected a union to represent them,
the Respondent has engaged in unfair, labor prac-
tices in violation of Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
4. The Respondent has engaged in no other
unfair labor practices violative. of the Act.
ORDER
The National Labor Relations Board orders that
the Respondent, John J. Hudson, Inc., North Wil-
braham, Massachusetts, its officers, agents, succes-
sors, and assigns, shall ; -
1. Cease and desist from
(a) Threatening employees with economic retal=
iation for exercising rights guaranteed by Section 7
of the Act. -
(b) In any like or, related manner interfering
with, restraining, or coercing employees in the'ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following, affirmative action neces-
sary to effectuate the purposes of the Act.
(a) Post at its facility in North Wilbraham, Mas-
sachusetts, copies of the attached notice marked
"Appendix."6 Copies of the notice, on form's pro-
6 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in'the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations , Board "
vided by the Regional Director for Region 1, after
being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consec-
utive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by, the Re-
spondent to ensure that the notices are not altered,
defaced, or covered by any other material.
- (b) Notify the Regional Director in, writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be
dismissed as to any alleged violations of the Act
not found herein.
MEMBER DENNIS, dissenting.
Contrary to my colleagues and in agreement
with the judge, I would find the 8(a)(3) and (1)
violations with respect to the Respondent's 27
August 1982 layoff of three employees. In particu-
lar, I disagree with the majority's view that the
General Counsel has failed to make a prima facie
showing in support of the complaint.
On 23 and-24 August 1982, four of five unit em-
ployees at the Respondent's North Wilbraham,
Massachusetts facility signed cards for representa-
tion by the Union, which had represented the Re-
spondent's Providence, Rhode Island facility em-
ployees in collective bargaining for many _years.
Arthur House, the Respondent's lone supervisor at
North Wilbraham, informed the Respondent's oper-
ations manager Frank Hudson about the employ-
ees' union activities on 24 August. The next day
Hudson ordered -House to lay off three employees
in order of seniority. On 26 August, House told an
employee who was wearing a union button, "I
think you guys are killing yourself [sic] over what
you're trying to pull." On 27 August, House in-
formed three employees-all of whom were open
union adherents-that they were laid off. He told
two of them, that "there was no work for obvious
reasons."
Before this occasion, the Respondent had never
laid off employees before the end of its operational
season in November. There 'is also no evidence that
the Resptindent'had given either its employees or
Supervisor House any - forewarning of work short-
ages and declining profits in 1981 and 1982, the al-
leged business motivation for the layoffs. Only 2
weeks before the layoff, House hired employee
Longtin with the assurance that Longtin's job at
North Wilbraham would be permanent and full
time until the regular end of the season in Novem-
ber. -
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The majority here contends that the aforemen-
tioned facts do not suffice for a prima facie show-
ing of unlawful motivation. My colleagues believe
House's August 26 "killing -yourself' statement,
which violated Section 8(a)(1),1 cannot serve to es-
tablish "the requisite element of union animus af-
fecting the layoff' because House played no part in
the decision to lay off employees. They further be-
lieve that there is no other evidence of union
animus, and consequently the General Counsel has
failed to make a prima facie case, particularly in
light of a long history of collective-bargaining har-
mony between the Respondent and the Union at
the Respondent's other facility.
I disagree with the majority. First, although
House was not the decisionmaker for the layoff, he
clearly was in a position to know decisionmaker
Hudson's motivation, having reported union activi-
ty to Hudson on one day and received the layoff
order on the very next day. Under these circum-
stances, House's 8(a)(1) threat as well as his subse-
quent reference to "obvious reasons" for the lack
of work and layoff are highly probative indicators
of the Respondent's animus. Second,-the timing and
nature of the layoff itself-an action unprecedented
in the Respondent's operational history, taken with-
out forewarning immediately after-Hudson learned
about the employees' union activity-' raise a strong
inference of antiunion motivation sufficient to es-
tablish- a prima facie case. Finally, the ,Respondent's
history of amicable relations with the Union at an-
other facility does not foreclose the possibility that
the Respondent would use unlawful means to
oppose the unionization of a previously unorga-
nized facility.2
Having. found that the General Counsel estab-
lished -a prima facie case, I also agree with the
judge that the Respondent did not carry its burden
of proving that it would have laid off the employ-
ees 'even in the absence of their union -activities.
Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981); NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983). Thus, - I
would fmd that the Respondent discriminatorily
laid- off three employees on 27 August 1982 in swift
retaliation for 'their union activities, violating Sec-
tion 8(a)(3) and (1) of the Act. -
' I join Chairman Dotson in adopting the judge 's finding of a violation
2 See Awrey Bakeries, 197 NLRB 705, 711 (1972)
APPENDIX
' NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide-by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through, representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT tell any employee that our em-
ployees are killing themselves by engaging in union
activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
JOHN J. HUDSON, INC. '
DECISION
STATEMENT OF THE CASE
HAROLD BERNARD JR., Administrative Law Judge. I
heard this case on November 16, 17, and 18 in Spring- _
field, Massachusetts, pursuant to charges filed September
1, 1982, and a complaint issued October 21, 1982, alleg-
ing,that the Respondent John J. Hudson, Inc. (Respond-
ent) discriminatorily laid off employees Merrill Hutchin-
son, Charles Sanford, and Kenneth Longtin because of
their activities in support of the Union, thereby violating
Section 8(a)(1) and (3) of the Act.
On the entire record, including the demeanor of the
witnesses , exhibits introduced at the hearing, and briefs
filed by the General Counsel and by the representative
for the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Rhode Island corporation engaged in
the sale, distribution, and application of asphalt products
from locations in Providence, Rhode Island, and North
Wilbraham, Massachusetts, to points outside those States,
including destinations in.the State of Connecticut. Annu-
ally, ' Respondent ships products valued in excess of
$50,000 from its North Wilbraham location directly to
points located outside the State of Massachusetts. It is
found, as admitted, the Respondent is an employer en-
JOHN- J. HUDSON, INC 877
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act. The Union is admittedly a labor orga-
nization within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A: Background -
Respondent's main office and operating -facility is lo-
cated in Providence, Rhode Island, where it employs.
some 25 truckdrivers, and is" engaged .in the bulk trans-.
portation of liquid asphalt to private contractors as well
as application of asphalt-the latter work for towns and
municipalities, comprising 10 percent of, its operation.
Employees there are represented by Teamsters Local
251. In 1963, after many years of operating from the
Providence location during which its drivers had serv-
iced points in Massachusetts in 1958, the Respondent
opened a facility in Westfield, Massachusetts, in order to
service areas in western parts of that State. In '1973; Re-
spondent moved such facility to the North Wilbraham,
Massachusetts location, site of the dispute involved
herein, and where it employed four or five drivers and
helpers, as well as 'Arthur House, who was, as shown
below, in command there. These employees, not 'repre
sented by any union, were primarily used in application
work-the spreading of. liquid asphalt and road tar on
highways; but also' did transport work, including bulk-
delivery of material from the 80 miles distant Providence
facility to the North Wilbraham location. Respondent's
work was seasonal, beginning for most employees around
April or May' depending on the weather, , and lasting
until November at which time employees would be laid
off until- the start in the following year's season. In the
history of Respondent's business operations spanning 20
or more years, there had never-been a:layoff of employ-
ees at Providence, or since North Wilbraham has -been in
operation, during the course of the regular season until'
the events described below. In fact,; the record indicates'
that Respondent took pains to' carry the entire North'
Wilbraham work force, on the' payroll through the`first-
weeks in November before laying its members off as-a'
group, rather than gradually, phasing' out the"gioiip by
staggering individual layoffs as work diminished towards-
the season 's end. . '
B. The Status of Arthur House ' -
Arthur House , a veteran staff member in Respondent's;
operations in western Massachusetts for 17 years,' served,
as a salesman and supervisor at North Wilbraham, where
he assigned work to the ' four, or five employees there.
The parties stipulated that Arthur House exercises inde-
pendent judgment in the performance of his assigning
duties and, .further, that House is an authoritative 'repre-
sentative of Respondent acting on_ its behalf at 'all. 'times
material herein so as to'constitute `a'managerial ,employee,
within the meaning of the Act. The stipulation is sup=
ported'by record testimony establishing that House's.'su
perior in Providence told North' Wilbralam ' emplo Yee
Charles Sanford in July 1982 during a conversation there
while Sanford was picking up a load that Hudson did
not have -time to' look into a problem concerning over-.:
time 'which Sanford had raised and that that (the over-
time question at North Wilbraham) "was Arthur's ball-
game." It is clear, as well, that Arthur House was the
sole authoritative figure at the North Wilbraham loca-
tion, 80 miles from Respondent's main office in Provi-
dence. I find on the basis of all the foregoing, that
Arthur House is a supervisory and managerial employee
as well as an agent for Respondent within the meaning
of the Act.
C. The Employees' Union Activities
In addition to Sanford 's contact with Hudson concern-
ing the subject of overtime , noted above , employee Mer-
rill Hutchinson testified that he spoke to Arthur House-
also sometime - in July as well as in August concerning
the same problem . Hutchinson told House that the em-
ployees needed the extra money due them for working
overtime and complained about Respondent 's knocking
them off from work after employees worked "long" days
(beyond 8 hours), but before the weekly 40-hour total re-•
quired to trigger overtime pay was reached, asking that
employees at least be paid overtime after 8 hours and
suggesting that House take the matter up with "Frankie"
(Hudson). House replied , "We'll talk," we'll talk." Hutch-.
inson went on to advise . House during one of these con-
versations that `.`you're inviting a union if you keep
knocking us off like this.".
Hutchinson also called Frank Hudson the first week in
August at Providence concerning the overtime problem,
suggesting Hudson speak ' to employees as the "troops
were getting restless," but was told Hudson ' was too
busy to get away. •
On August 23, employees Hutchinson , Sanford, and
Joseph Ragno discussed ' the overtime problem and the
need for improved medical insurance coverage at the
North Wilbraham drivers'. room during the midmorning
hours of a rain-date interruption "in the work schedule.
There was 'discus'sion concerning the desirability' of se-'
curing similar benefits to those provided .for employees
at Providence under the Local 251 Teamsters ' 'contract
and a • decision was reached to seek union representation
at .:North Wilbraham ; Afterward, Sanford called, the
office of Local- 404 Teamsters (the local servicing North
Wilbraham), and arranged a meeting with Union Repre-
sentative Jack Fonte which took place in 'midday that
same 'day, at 'a, restaurant across from the North Wilbra-
ham office . Fonte ' answered Sanford 's questions; gave"
him `five"union authorization cards and explained how-
the cards were to be "filled in and '.that they would be-
processed from there.
Sanford: returned