Skyline Transport

National Labor Relations Board - Board Decisions

Feb 22, 1977

228 N.L.R.B. 352 (N.L.R.B. 1977)

352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
James Innaco, d/b/a Skyline Transport and Team-
sters, Local Union No. 443, a/w International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America and Peter H.
Loux. Cases 1-CA-11128 and 1-CA-11129
February 22, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On June 8, 1976, Administrative Law Judge Jose-
phine H. Klein issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel filed a
brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs' and has decided to affirm the rulings, find-
ings ,2 and conclusions of the Administrative Law
Judge and to adopt her recommended Order.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, James Innaco,
d/b/a Skyline Transport, Milford, Connecticut, his
agents , successors , and assigns, shall take the action
set forth in the said recommended Order.
I Respondent has filed a motion to reopen the record as well as a motion
for permission to appeal directly to the Board the Administrative Law
Judge 's denial of his motion to reopen the record . In both motions
Respondent argues that the Administrative Law Judge erred in not ordering
a reopening of the record . In agreement with the Administrative Law Judge,
and for the reasons stated by her, we find that Respondent has failed to state
a sufficient basis for granting such motions Therefore we shall, and hereby
do, deny these motions.
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc, 91
NLRB 544 (1950 ), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing her findings.
3 We agree with the Administrative Law Judge that a bargaining order is
warranted to remedy the extensive and pervasive unfair labor practices
committed by Respondent . N LRB. v. Gissel Packing Co., Inc., 395 U.S. 575
(1%9) However , in accord with our decisions in Trading Port, 219 NLRB
298 (1976), and Beasley Energy, Inc, 228 NLRB 93 (1977), we shall
require Respondent to recognize and bargain upon request with the Union as
of September 6. 1975, the date Respondent embarked on his course of
unlawful conduct . Member Fanning does not join in attempting to impose
228 NLRB No. 21
this requirement for reasons stated in his separate opinion in Beasley Energy,
Inc., supra
DECISION I
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN, Administrative Law Judge: Pursu-
ant to charges filed on October 20, 1975,2 by Teamsters,
Local Union No. 443, a/w International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of
America (the Union), and Peter H. Loux, a consolidated
complaint was issued against James Innaco , d/b/a Skyline
Transport (Respondent), on November 26 and twice
amended at the hearing on March 24, 1976.3 The amended
consolidated complaint alleges that on or about September
7 and 9, in contravention of Section 8(aXl) of the Act,4
Respondent interfered with his employees' exercise of the
rights guaranteed them by Section 7 of the Act and, on or
about September 19, discharged employee Peter H. Loux in
violation of Section 8(aX3). In addition to answering the
complaint, Respondent filed an "Objection to Order
Consolidating Cases ," which was renewed at the hearing.
Viewing that objection as a motion to sever, I hereby deny
it, since the two charges are not only closely related but, in
fact, are substantively identical, both alleging that Respon-
dent violated Section 8(aX3) and (1) of the Act by laying off
Loux.
Pursuant to due notice , a hearing commenced before me
in New Haven, Connecticut, on March 24, 1976.5 At the
close of the General Counsel 's case, on Respondent's
motion, the hearing was adjourned and resumed on April 1,
1976. All parties were represented by counsel and were
afforded full opportunity to present oral and written
evidence and to examine and cross-examine witnesses. The
parties waived oral argument.
After the hearing, upon request of new counsel appearing
for Respondent, the time for filing briefs was extended from
April 21 to May 19, 1976. A brief was filed on behalf of the
General Counsel on April 21, 1976. On May 17, 1976,
Respondent filed a motion to reopen the record. The
motion was renewed in Respondent's brief, filed on May
19, 1976.
Upon the entire record,6 together with careful observa-
tion of the witnesses and consideration of the briefs, I make
the following:
i At the hearing, Respondent was represented by William Lynch, Esq.
(Lynch, Traub, Singewald & Keefe), New Haven , Connecticut . After the trial
Mr. Lynch withdrew his appearance and Mr . Sullivan (Sullivan & Hayes)
appeared for Respondent.
2 Unless otherwise stated, all dates herein are in 1975.
3 The first amendment, requesting issuance of a bargaining order, was
preceded by a notice of intent to amend given on March 12 , 1976. The
second amendment, adding an allegation of violation of Sec . 8(axl), was
made on the basis of testimony adduced at the hearing.
4 National Labor Relations Act , as amended, 29 U.S.C. Sec. 151, et seq.
S The hearing was originally scheduled for February 11, 1976, but by
order issued on February 4,1976, was postponed to March 24,1976.
6 Errors in the transcript of the hearing are so numerous as to render a
corrective order impracticable. The errors generally are self-evident and not
crucial . Some obvious errors have been corrected in portions quoted in this
Decision.
SKYLINE TRANSPORT 353
FINDINGS OF FACT
1. PRELIMINARY FINDINGS
A. Respondent, a sole proprietorship, with his principal
office and place of business in Milford, Connecticut, is
engaged in the interstate transportation of freight. Respon-
dent annually performs services valued in excess of $50,000
for enterprises over which the Board would assert jurisdic-
tion on a direct basis. Respondent annually receives
revenue in excess of $50,000 directly from interstate
business. Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
B. Respondent's answer to the complaint denies knowl-
edge as to whether the Union is a labor organization within
the meaning of Section 2(5) of the Act.
Samuel Kasowitz, organizer for the Union, testified that
his function is to "try to organize the unorganized" and that
in doing so he seeks assistance from employees. Loux is the
employee who assisted in organizing Respondent's truck-
drivers. Kasowitz provides employees with union authori-
zation cards headed "Application for Membership." The
Union is clearly identified. The text of the card reads in
part: "I, the undersigned, hereby apply for admission to
membership in the above Union and voluntarily choose
and designate it as my representative for the purposes of
collective bargaining...." The record contains six such
authorization cards executed by employees of Respondent
and delivered to the Union by Loux.
At the hearing Respondent's counsel, who asserted he
had some 20 years' experience in collective bargaining,
stated that he has "an excellent relation with the Team-
sters" and has dealt "on a day to day basis" with "Mr.
Kasowitz, who is a respected professional."
The foregoing evidence establishes that, in the terms of
Section 2(5), the Union is an "organization . . . in which
employees participate and which exists for the purpose .. .
of dealing with employers" in collective bargaining.
Additionally, it may be noted that the Board has
previously found the Union to be a labor organization
within the Act. See Mr. Wicke Ltd. Co., 172 NLRB 1680,
1684 (1968); Dichello, Inc., Case 1-RM-871 (1974) (not
published in volumes of Board Decisions).
Accordingly, it is found that the Union is, and has been at
all times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
II. RESPONDENT'S MOTION TO REOPEN THE RECORD
As set forth above, the hearing in this case commenced
on March 24, 1976, and, on Respondent's motion at the
close of the General Counsel's case , was recessed until April
1. Respondent, represented by counsel, had full opportuni-
7 While the Board in Brooklawn relied on Sec. 102.48(d)(1) of its Rules
and Regulations , applicable to proceedings after a case has been transferred
to the Board , the standards prescribed in that section are reasonable and
appropriate in proceedings before an Administrative Law Judge, where
expeditious and orderly disposition is equally essential.
s It may be added that it appears unlikely that any evidence consistent
with Respondent's testimony could materially alter the result in this case.
9 Loux testified, without contradiction, that the employees' enthusiasm
evaporated after an employee was discharged.
ty to examine and cross-examine witnesses and to present
evidence and argument. After the hearing, Respondent's
counsel requested that he be relieved of his representation.
Thereafter, on April 20, 1976, pursuant to request by new
counsel for Respondent, the time for filing briefs was
extended to May 19, 1976. On May 17 Respondent's new
counsel filed a motion to reopen the record for the receipt
of further evidence.
As reasons for reopening the record, the motion states
that "[t]he record contains contradictory testimony by the
Charging Party and the Respondent" relevant to the 8(a)(3)
allegation and "[t]he details of [conversations alleged to
violate Section 8(ax 1) ] have not been fully developed in the
record." The motion does not identify or describe the
nature of the additional evidence sought to be adduced. No
reason is given for the failure to adduce all relevant
evidence at the hearing. It does not appear that Respondent
desires to introduce evidence which, with the exercise of
due diligence, he could not have presented at the heanng.
The only basis for the request is that "new counsel .. .
conducted an investigation into the facts underlying the
... allegations" of the complaint. A change of counsel is
insufficient reason for reopening a hearing. Cf. Brooklawn
Nursing Home, Inc. d/b/a Sassaquin Convalescent Center,
223 NLRB 267 (1976).7
In failing to specify the evidence sought to be adduced
and in failing to establish that any such evidence could not
have been presented at the hearing, the motion is totally
inadequate to warrant reopening the record.8 Accordingly,
the motion is denied.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
Loux, the Charging Party, was employed as a truckdriver
by Respondent from January 1974 until September 5, 1975,
when his employment was terminated. In July or August
1974, Loux consulted Kasowitz, a union organizer, about
the possibility of organizing Respondent's employees.
Kasowitz gave Loux some union authorization cards to
have signed, after which a meeting would be called.
However, despite some initial interest among the employ-
ees, no authorization cards were executed and the matter
was dropped.9
Around the end of July 1975, Loux, in response to a
question by another employee,10 again consulted Kasowitz
about organizing Respondent's drivers. Kasowitz advised
Loux to solicit authorizations, using the cards he had
previously received. It was stipulated that in the period
August 1 through September 9 Respondent had in his
employ eight truckdrivers, who constitute an appropriate
bargaining unit.
10 The employee referred to was Robert R . Joyce. Respondent's counsel
subpenaed Joyce to appear at the resumed hearing on April 1, 1976. After
interviewing the subpenaed witness, Respondent 's counsel said that he had
spoken to Joyce "at length [and] discovered that Mr. Joyce can't add much
to [Respondent's ] case." Counsel added that Joyce had indicated that he
wished to appear "and straighten out what he believes is a defect in
testimony " Thereupon , counsel for the General Counsel and for Respon-
dent interviewed Joyce together and then jointly reported that they saw no
reason to present Joyce's testimony Accordingly, he did not testify.
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Around the first week in August , Loux executed an
authorization card" and in the first or second week he
obtained cards executed by three other employees.12
On August 20 Loux received a written reprimand, dated
August 12 , specifying three incidents of misconduct-one
during the week ending July 26, one on August 5, and one
on August 12. In testifying , Loux acknowledged that the
statements in the reprimand were essentially accurate. The
reprimand said that it "will become a part of [Loux's]
employment record ," but no further disciplinary action was
taken.13
After receiving the August 12 reprimand , Loux intensi-
fied his attempt to unionize the employees . During the last
week of August he obtained authorization cards from two
additional employees.14
Except where otherwise indicated , the following state-
ment of facts is based on Respondent 's own testimony. On
Saturday, September 6, employee Alexander Jovia advised
Respondent by telephone that Loux was soliciting union
authorization cards . Thereupon, either that evening or the
next day, Innaco telephoned each of the six other employ-
ees at their homes because, in Innaco 's words, he "under-
stood that there was a possibility of the Union coming in
and [he] wanted to know what was the story with
everything." 15 Initially he asked each employee if he had
signed a union card . To those who answered in the
affirmative he said , in essence, that, as a small business,
Respondent could not afford a union and if the employees
chose to be represented by a union he would sell the
business or close it down.
When Innaco telephoned employee Corey and asked if
he had signed a union card, Corey said he would prefer not
to discuss it over the telephone and went to see Innaco at
the plant . Concerning this visit , Innaco testified as follows:
Q. And during your conversation with Mr . Corey,
after you asked him about whether he signed an
authorization card . . . what exactly was said by you
regarding the closing of your business because of the
Union?
A. In so many words I just told him that the
Company could not certainly absorb the Union rates
that [were ] prevalent around the industry. I would
probably either sell the business or close it, or some-
thing ; I just could not operate.
Corey testified that Innaco "said that alternatives [were
that he ] could either shut the doors or lay people off. Which
was inevitable because the man has to shell out a lot of
money."
ii When submitted to the Union and introduced into evidence at the
hearing, Loux's card was unsigned . He acknowledged the card as his and
credibly testified that he had inadvertently forgotten to sign it before he
submitted it to the Union The card thus is clearly a valid union authonza-
tion. Von Der Ahe Van Lines, Inc., 155 NLRB 126, 127, fn. 2, 144 (1965).
12 Ronald J . Corey, John Amato , and Fletcher Coleman . These cards are
undated , but Loux credibly testified that Corey and Amato executed theirs
together during the first week in August and Coleman signed his in the first
or second week of August Of these three employees, only Corey testified. He
could not recall precisely when he signed , but, when pressed , he estimated
the date as 2 or 3 weeks before Loux's termination . Loux's memory was
manifestly clearer and more reliable than Corey's. The absence of dates on
the cards themselves does not affect their validity . Clark Products, Inc.,
Innaco then testified that he told employee Kamper "the
same thing as Mr. Corey; that a business of my type just
can't absorb that kind of cost." Kamper testified, without
contradiction, that at this time he acceded to Inn co's
request that he (Kamper ) sign a statement that he would
not join the Union.16
Innaco testified that he did not tell employee Bernard
that he would sell or close the business "[b]ecause Mr.
Bernard realized this all the way along and he is not one
who signed a petition card or an authorization." Then
Innaco and Bernard "just conversed [about ] what the
problem was amongst the men and why it was taking
place." Similarly, Innaco testified that he did not have to
tell Joyce that he would probably sell or close the business
if the Union came in because Joyce "realizes the fact" and
"has always been appreciative of the fact that he is earning
a good piece of wage." According to Innaco, Joyce said that
prevailing "circumstances" led him to sign a union card
reluctantly and that "he would request that his card be
returned." As previously noted, after interviewing him,
Respondent's counsel concluded that Joyce would add
nothing to Respondent 's case.
Responding to Innaco's inquiry, employee Fletcher
Coleman said he had signed a union card because he
"understood everybody else was." According to Innaco,
Coleman said Innaco would not "hear anything from it."
On this reassurance, Innaco expressed his gratitude and
ended the conversation, apparently feeling it unnecessary
to inform Coleman of the probable sale or closure of the
business in the event of unionization.
In answer to Innaco's question, employee John Amato
acknowledged that he had signed a union card. Amato
agreed with Innaco's opinion that "things like this aren't
necessary" if the two men were mutually "satisfied."
However, Amato said he would not request the return of his
union card.
As previously noted, six union authorization cards were
introduced into evidence. Those executed by Kamper,
Amato, and Joyce had been torn into four pieces but then
patched together with Scotch tape. Loux testified that he
had destroyed these three cards after receiving telephone
calls from the signers on Saturday evening or Sunday. The
employees in question indicated that, as a result of their
conversations with Innaco, they wished to withdraw their
support of the Union. In this connection, Loux testified:
I talked to these three men on either Saturday night or
Sunday- . . . [a]nd got the feeling that they didn't
want to have any part of the union any more, because
they had phone calls from Mr. Innaco. So I don't
Subsidiary of Nopco Chemical Company, 160 NLRB 23,31 (1966), enfd. 385
F.2d 396 (C.A. 7, 1967).
13 Loux testified that he believed that he was given the August 12 written
reprimand because of his union organizing activities . However, that
reprimand is not alleged as violative of the Act and there is no affirmative
evidence that Innaco knew of Loux 's union activities before September 6.
14 William R. Kamper's card is dated and was executed on August 28.
Joyce's card is undated , but Loux credibly testified that it was executed
during the last week of August.
is Innaco testified that "he thought [he I had as much right as anybody
else" to find out about the union activities.
16 The complaint was amended at the hearing to add an 8(a)( 1) allegation
based on this testimony by Kamper.
SKYLINE TRANSPORT 355
remember whether they had specifically told me to rip
them up, that they didn't want to have anything to do
with it again, or I was just down and out that it was
beaten and I ripped them up.
Later, on cross-examination , Loux testified that each of the
three employees had specifically requested that his card be
destroyed. According to Loux, Kamper said "that he had
had a telephone conversation with Mr. Innaco and that he
[Kamper] did not want to lose his job." Joyce and Amato
were the only employees not qualified to operate tractor-
trailers. According to Loux, when Joyce called Loux after
having heard from Innaco, Joyce indicated that his usual
truck route was to be converted to a trailer run and he "was
scared for his job and he did not want to have that [Union]
card turned in." While he did not recall whether Amato had
specifically expressed similar anxiety, Loux felt that Amato
was equally vulnerable with Joyce. A few days later Loux
took all the cards to the union office, where the torn ones
were restored. Loux's testimony as to the employees'
attitude was uncontradicted.
On Sunday, September 7, after having spoken to the
other employees, Innaco informed Loux by telephone that
there was no work for him the next day. From this point on
there is some conflict in the evidence. Loux testified that he
asked Innaco why he had no work the next day and Innaco
replied that there was no freight. Loux testified that about
4:30 p.m. on Monday, September 8, Anthony Gore,
Respondent's sales supervisor and Innaco's assistant,
telephoned Loux at his home and stated that there would be
no work for him again on Tuesday. Loux testified:
I asked [Gore] what were they going to do, were they
going to lay me off? Or are they going to fire me, or lay
me off, or call me everyday and tell me there's no work?
According to Loux, Gore said that Loux would have to
speak to Innaco about what they were going to do. Loux
testified that he then called Innaco, who told him to come
to the office the next morning. When Loux went to the
office the next day Innaco was out, so Loux saw Gore, who
gave him a paycheck and "a blue slip" signed by Innaco.
The "blue slip" (which was not produced) ascribed Loux's
unemployment 17 to his "not conforming with company
policy." According to Loux, Gore said that Loux should
"have a good story to tell" Innaco about his role in "this
union business." That afternoon Loux returned and spoke
to Innaco. Loux asked what company policy he was not
complying with, but Innaco replied only: "If that doesn't
work, I'll give you another one so you can collect." Loux
understood Innaco's meaning to be that he would assure
that Loux could obtain unemployment compensation.
According to Loux, Innaco said that the other employees
had identified Loux as the union organizer and Loux
confirmed that identification. Innaco said that he could not
understand why Loux had taken that action, that the
employees' pay and benefits had been improved, and "that
17 The "blue slip" is a form used in applying for unemployment
compensation . Since Loux 's blue slip is not in evidence , it is not known
whether it uses the words "discharge," "layoff," or any other designation of
the cause or nature of the unemployment.
18
As indicated below, it is not clear that the result would be different if
Innaco's testimony were to be credited.
they had gone over the books on Sunday and they just
simply could not afford a union."
Respondent contends that Loux was not discharged, but
rather that he requested a "blue slip." Innaco testified that
on Saturday or Sunday he decided to "penalize" or
"punish" Loux for poor performance on the job. Among
many alleged deficiencies, Innaco emphasized Loux's slow
rate of performance. He testified that when he telephoned
on Sunday to inform Loux that there was no work for him
on Monday, Loux did not ask why and Innaco did not
volunteer any explanation. Innaco testified:
I didn't have any intention at that point [other] than to
give him a couple of days off as I have other drivers in
the past and whether that was going to materialize later
into a discharge I'm not quite certain.
Innaco testified that on either Monday or Tuesday he was
informed by Gore that Loux had asked for a blue slip and
Innaco authorized Gore to issue one. At one point Innaco
testified that he "didn't see the blue slip"; at another point
he said he did not recall whether he saw it; and at still
another point he revealed that he told Gore what to say on
the blue slip. It is undisputed that Innaco personally signed
it, apparently on Monday. He maintained that his meeting
with Loux on Tuesday was held solely on Loux's request;
that Innaco had not asked to have Loux come in. Innaco
claimed an almost total absence of recollection as to the
content of his conversation with Loux. Innaco could not
recall why Loux had requested the meeting. He testified
that Loux said to him: "If you're going to give me a day and
the next day no work, give me a blue slip." But Innaco also
testified, inconsistently, that Loux had made his request
only of Gore and had received the blue slip before he met
with Innaco. Innaco conceded that the union matter had
been mentioned in his conversation with Loux. He main-
tained that Loux had raised the subject but could not recall
any of the circumstances or context in which the matter was
raised. Innaco denied that he had asked if Loux was the
organizer because he already knew that. But Innaco also
testified: "I may have mentioned something to the effect
that I heard about the union and he was . . . responsible for
the cards, the authorizations." Significantly, Gore did not
testify. I credit Loux and fmd that 2 days in a row he was
told there was no work for him; that he did not ask for the
blue slip, which was given to him when he reported at
Respondent's office pursuant to Gore's instruction.18
Innaco maintained that Loux was disciplined for serious
deficiencies in his work, principally his frequently taking
too long to complete his assigned duties. Innaco testified
that Loux's "excess runs" started "[m]aybe five or six
months before [the] termination." There is no reference to
any such alleged "excess runs" in the written reprimand
given to Loux in August.19 Although early in his testimony
Innaco said that the written reprimand "specifies the most
important complaints" he had against Loux, Innaco then
testified that, after the August reprimand, Loux "just kept
19 The three specifications in the reprimand were : (1) Failure to report to
work on August 5 without prior notification , (2) failure to make a specified
pickup in the week ending July 26, and (3) reporting to work at 7:13 rather
than 6 a in. on August 12.
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
getting worse," but no specifics were adduced. Loux
received no further reprimands, oral or written, between
August 12 and his termination. Loux testified, without
contradiction, that he received a pay raise about a month
and a half before his termination and he believed his wage
rate was higher than those of other drivers.
Loux's regular duties were to transport freight between
Milford, Connecticut, and LaGuardia and Kennedy Air-
ports in New York. This was one of Respondent's most
important routes. Sometime before Loux was terminated
Respondent obtained a direct telephone line to the airports.
Loux testified that the direct line had been acquired at his
suggestion , to facilitate communication with customers,
resulting in more business for Respondent. Innaco, how-
ever, apparently contends that the line was installed for the
purpose of keeping closer tabs on Loux, who Innaco felt
was spending more time than necessary. However, there is
no evidence that Innaco ever gave consideration to replac-
ing Loux on the airport run.
There is no question that Loux was angered by the use of
the line for the purpose of checking up on him. At
sometime , variously estimated as from I to 3 months before
his termination, Loux adopted an attitude of hostile or surly
silence toward Innaco and, apparently, toward Respon-
dent's clerical employees. Loux dated the onset of his
silence at about a month before he was terminated. The
number of stops he had to make in a day varied from
around 10 to around 40. He testified that one day, when he
had only about 15 or 16 stops to make, he took it easy,
apparently starting to work late. However, "nothing went
right" and he returned to Milford late. Innaco was
disturbed and the next day left a peremptory note saying
that Loux was expected to make four stops per hour. That
day Loux had some 42 stops to make. When he returned,
Innaco complimented him for his good work. Loux was less
than gracious: "I told him to save it because the next time
that I had an easy day, it would be the same thing all over
again." According to Loux, it was at this point that Loux
and Innaco stopped talking to each other. Loux continued
to get all his work done, but he conceded that there "might
have been a little bitter attitude." Innaco conceded that
Loux had always completed all his work, but, according to
Innaco, in a few instances accounts might have been
"jeopardized." Innaco also conceded that other drivers had
occasionally missed pickups or deliveries, but Loux had
never done so.
Innaco's testimony suggests that on previous occasions
Loux had similarly expressed displeasure by silence. On the
other hand, Loux accused Innaco of criticizing all of the
employees, one at a time.20
Innaco mantained that the "punishment" meted out to
Loux was in line with his general practice with respect to
other drivers. The only other disciplinary incidents shown
in the record are suspensions of two employees and one
discharge. Employee Jovia was given a 2-day suspension on
April 21 for having signed a complete manifest and then
having "left all shipments on the dock" on April 21. His 2-
day suspension was stated in a written reprimand. Innaco
testified that Kamper had been suspended for 2 days
sometime in 1975 for failing to make "a very, very urgent
pickup for . . . one of our major accounts." In 1974
employee Campbell had been discharged, according to
Innaco, for drunkenness, together with several serious and
expensive derelictions enumerated in a written notice.
According to Innaco, Loux's unsatisfactory performance
had been the subject of much discussion between Innaco
and Gore over a considerable period of time. But Innaco
alone decided to "penalize" Loux on Saturday night or
Sunday afternoon, and then informed Gore of the fait
accompli. As previously noted, Gore did not testify.
About a month after his termination Loux applied for
unemployment compensation and presented his blue slip to
the compensation board. A representative of the compensa-
tion board spoke by telephone to Innaco, who did not
oppose Loux's receiving compensation. Loux actually did
receive such compensation.
B. Discussion and Conclusions
1. Section 8(a)(1)
Respondent's own testimony establishes that Innaco
interrogated virtually all his truckdrivers (except Jovia, who
informed Innaco of the union activities, and Loux, whom
Jovia identified as the union instigator), as to whether they
had signed union cards. Such interrogation, for no legiti-
mate purpose and without any assurance against reprisals
or detriment to the employees, clearly violates Section
8(a)(l) of the Act. Falcon Tank Corp., 194 NLRB 333
(1971); Pyle-National Division of Harvey Hubbell, Inc., 197
NLRB 439 (1972); Components, Inc., 197 NLRB 163, 169
(1972).
Innaco also freely testified that he informed employees
that he could not afford a union and would sell the business
or close it down if the employees chose to be represented by
the Union. In this connection, Respondent's brief argues
that Innaco spoke only in terms of possibility, saying that
he "might" take such action. To support this contention,
Respondent quotes certain leading questions put to Innaco
by counsel for the General Counsel. But, as seen above,
Innaco's own words were not so guarded as counsel's. For
example, Innaco said : "In so many words I just told
[Corey] that . . . I would probably either sell the business
or close it, or something; I just could not operate." He told
Kamper "the same thing as Mr. Corey." He failed to make
such statements only when he believed they were unneces-
sary, either because the employee said he had not signed a
union card or indicated that he already "knew" that Innaco
would discontinue operations if a union came in. Such
statements clearly constituted coercive threats violative of
Section 8(a)(1). N.LR.B. v. Gissel Packing Co., Inc., 395
U.S. 575 (1969). It should be added, however, that, even if
Innaco had spoken in less positive terms, i.e., if he had
merely said he "might" close or sell the business, his
statements were violative of the Act . See, e.g., Components,
Inc., 197 NLRB 163; N.LRB. v. Four Binds Industries,
Inc., 530 F.2d 75, 78 (C.A. 9, 1976):
20 Loux testified : Innaco "started on one person at a time . I was just on
the bottom of the hst. He rode number one man for a while , and then he rode
the number two man for a while , and so on down the hst "
SKYLINE TRANSPORT 357
In making a prediction the employer must be careful to
base his statements on an eventuality that is capable of
proof, and not on an implication that his own initiative
will cause economic detriment. . . . The choice of
proper words is not an exercise in "brinkmanship." .. .
We look not for certain words that are allowed and
others that are forbidden. Rather, we are to view the
statements in their entirety and consider their total
effect on the receiver.
An employer's saying that he "might" discontinue the
business in the event of unionization would undoubtedly
give the employees pause before exercising their right to
choose union representation. Respondent's threats are not
saved by Innaco's claim, unsupported by stated facts, that
he could not afford to have a union. Jimmy-Richard Co.,
Inc., 210 NLRB 802, 805 (1974).
Kamper's undisputed testimony establishes that Respon-
dent violated Section 8(a)(1) of the Act by soliciting from
an employee a written commitment that he would not join
the Union.21
Additionally, Innaco's own testimony establishes that he
created the impression that he was keeping union activities
under surveillance by saying to Loux "something to the
effect that [Innaco] had heard about the Union and [Loux]
was . . . responsible for the cards, the authorizations."
American National Stores, Inc., 195 NLRB 127 (1972);
Padre Dodge, 205 NLRB 252 (1973); Commerce Concrete
Company, Inc., 197 NLRB 658, 659 (1972).
2. Section 8(a)(3)
Innaco's testimony establishes that he harbored union
animus and that he knew of Loux's union activities when
Loux was terminated. The accompanying pervasive viola-
tions of Section 8(a)(1) themselves manifest "an antiunion
animus which the discharge would gratify" and thus "it
may be a fair inference that this was the true reason" for the
discharge. N.L.R.B. v. Joseph Antell, Inc., 358 F.2d 880, 883
(C.A. 1, 1966); W. T. Grant Company, d/b/a Grant City, 210
NLRB 622, 625 (1974); Stephens Manufacturing Co., Inc.,
196 NLRB 47 (1972).
Loux was not told that he was merely being suspended
for a temporary period. Indeed, Innaco testified that he did
not know at the time if the suspension would be made
permanent. Nor was he given any reason for the action.
According to Loux, Innaco said the day off on Monday was
ordered because there was no freight. But Loux correctly
disbelieved this explanation. Respondent's failure to give
any reason for the action "alone would be enough to
support an inference that the [termination] was discrimina-
tory." N.L.R.B. v. Griggs Equipment, Inc., 307 F.2d 275, 278
(C.A. 5, 1962). And even at the hearing Respondent
adduced no evidence to Loux's alleged misconduct except
"vague and generalized accusations of unsatisfactoriness"
21 The evidence also suggests that Innaco made a similar request of
Amato and Joyce. However, no such finding is here made.
22 At the hearing Respondent 's counsel stated his position as follows
"Loux terminated at a time that he was committing errors in his performance
and that he, personally, chose to take a lay off slip recognizing the fact that
he had a bad employment record and was getting worse." In his brief,
and no "credible explanation for the timing of the action."
Sam Tanksley Trucking Inc., 198 NLRB 312, 317 (1972).
Perhaps most important is the timing of the discharge,
just the day after Innaco claims he learned of Loux's union
activities . The timing is particularly noteworthy in conjunc-
tion with Innaco's testimony that he was disciplining Loux
for alleged derelictions that had been going on for some 5 to
6 months . See Shasta Fiberglass, Inc., 202 NLRB 341
(1973); The Great Atlantic & Pacific Tea Company, Inc.,
Birmingham Division, 210 NLRB 593 (1974); Red Line
Transfer & Storage Company, Inc., 204 NLRB 116 ( 1973);
National Food Service, Inc., 196 NLRB 295 (1972). Innaco
did not even refer to any specific incident as the proverbial
and ubiquitous "final straw." There was not a bit of
evidence to explain the timing of the discipline . And this is
particularly noteworthy when coupled with Innaco's testi-
mony that before he called Loux he had given no consider-
ation to a replacement on the airport run on Monday.
Taken together, all the foregoing considerations leave no
room for doubt that Loux was the victim of discriminatory
action violative of Section 8(a)(3) and (1) of the Act.
Northridge Knitting Mills, Inc., 223 NLRB 230 (1976).
Respondent's position apparently is that Loux was
"suspended" for cause and then voluntarily quit .22 I have
previously credited Loux's testimony that he did not
request a blue slip. That fording is perhaps absolutely
required because the only contradiction is found in purely
hearsay testimony by Innaco . Other evidence tends to
corroborate Loux's view . In particular , reference is made to
the fact that the blue slip does not state that Loux quit, and
Respondent did not oppose Loux 's application for unem-
ployment compensation, which presumably he would have
done if Loux's termination had been voluntary.
Although the foregoing finding disposes of Respondent's
defense, it may be added that the General Counsel's
position would not necessarily fall if Loux had requested a
blue slip . Faced with an indefinite day-to-day "suspen-
sion," Loux would have acted reasonably if he sought a
blue slip, or other written statement , if for no reason other
than to obtain unemployment compensation . It may well
be said that "Respondent resorted to this conduct as a
means of coercing [Loux] into voluntarily terminating his
employment to obviate the necessity of finding a pretext for
discharging him." Pre-Cast Mfg. Co., 200 NLRB 135, 144
(1972).
Accordingly , it is found that, as alleged , Respondent
discriminatorily terminated Loux's employment as of
September 8, 1975 , in contravention of Section 8(a)(3) and
(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
Respondent makes the factual contention that : "The Respondent had
decided to give Loux a suspension because of Loux's unsatisfactory
performance. During the suspension , Mr Loux asked for a `blue slip' which
is a form for the Unemployment Insurance." Respondent adds no legal
argument.
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By coercively interrogating employees concerning
their union sympathies and activities , by threatening
employees that he would probably close or sell his business
or take other action detrimental to the employees if they
chose to be represented by a union , by creating the
impression that employees ' union activities were being kept
under surveillance , and by soliciting an employee to make a
written commitment not to join the Union , Respondent has
violated Section 8(a)(1) of the Act.
4. By discharging or indefinitely laying off Peter H.
Loux as of September 8, 1975, and thereafter not offering
him reinstatement , Respondent has discriminated in regard
to hire and tenure of employment to discourage member-
ship in a labor organization , and thereby has violated
Section 8(a)(3) and ( 1) of the Act.
THE REMEDY
Having found that Respondent has committed unfair
labor practices , I shall recommend the issuance of a cease-
and-desist and notice-posting order in the customary
manner. Because Respondent's unfair labor practices have
been so pervasive and strike at the heart of the Act, I shall
recommend a broad cease-and-desist order. And, having
found that Peter H . Loux was discriminatorily terminated, I
shall recommend that Respondent be required to offer him
full and immediate reinstatement with backpay, to be
computed in accordance with F. W. Woolworth Company,
90 NLRB 289 (1950), with 6-percent interest per annum, in
accordance with Isis Plumbing & Heating Co., 138 NLRB
716 (1962).
The General Counsel also requests an order requiring
Respondent to bargain with the Union on request.
First , it is clear that on September 6, 1975 , the Union
represented a majority of Respondent's eight truckdrivers,
who, it was stipulated, constitute an appropriate bargaining
unit . That three of the six authorization cards were later
destroyed , at the request, express or implied, of the signers
does not affect their validity and efficacy, since any
purported withdrawal of support for the Union was caused
by Respondent's unfair labor practices. Quality Markets,
Inc., 160 NLRB 44,45-46 (1966), enfd. 387 F.2d 20 (C.A. 3,
1967); Werstein's Uniform Shirt Company, 157 NLRB 856,
860 (1966).23
In his brief, Respondent alludes to the undisputed fact
that the Union did not demand recognition. The fact is that
the Union did not receive cards executed by a majority
until after Respondent's unfair labor practices , including
Loux's discharge. By the time the Union received all the
cards, three had been tom up because of Respondent's
unfair labor practices. With Loux terminated and three
authorization cards having been tom up, the Union
appeared to have only two cards in a seven-man unit. It
would certainly have been futile for the Union to request
recognition under those circumstances . Cf. Jimmy-Richard
Co., 210 NLRB at 808. In any event, a demand for
recognition is not a condition precedent to a bargaining
23 It should also be observed that in his brief Respondent appears to
contend that none of the employees actually sought to withdraw their
authorizations.
24 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
order to remedy serious and pervasive unfair labor practic-
es. Steel-Fab, Inc., 212 NLRB 363 (1974).
On all the evidence, including Respondent's widespread
interrogation of and threats to employees, and its unlawful
discharge of the only active employee solicitor for the
Union, there can be no question that it would be impossible
to conduct a fair election at this time. Additionally, even in
testifying at the present hearing , Innaco repeated his
conclusory view, unsupported by any factual evidence, that
his business could not continue with a union . It is therefore
reasonable to fear the commission of further unfair labor
practices which would prevent the conduct of a fair
election . Accordingly, I shall recommend the issuance of a
Gissel bargaining order. Steel-Fab, Inc., supra; Trading Port,
Inc., 219 NLRB 298 (1975).
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case , and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER24
Respondent, James Innaco, d/b/a Skyline Transport,
Milford, Connecticut , his agents , successors, and assigns,
shall:
1. Cease and desist from:
(a) Coercively interrogating his employees concerning
their union sympathies , affiliation, and activities.
(b) Requesting or requiring any employee to make a
commitment not to join or support any labor organization.
(c) Threatening employees that he will or may close down
or sell the business or take other detrimental action if the
employees choose to be represented by a labor organiza-
tion.
(d) Creating the impression that employees' union
activities have been or are being kept under surveillance.
(e) Discharging employees or otherwise discriminating in
any manner with respect to their tenure of employment, or
any term or condition of employment, because they have
engaged in activity on behalf of Teamsters, Local Union
No. 443, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or
any other labor organization.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of the right to self-
organization , to join, form, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Peter H. Loux immediate and full reinstatement
to his former position or, if such position no longer exists, to
a substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him whole
for any loss of earnings in the manner set forth in the
section herein entitled "The Remedy."
conclusions , and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and Order , and all objections thereto shall be deemed
waived for all purposes
SKYLINE TRANSPORT 359
(b) Upon request, recognize and bargain collectively with
Teamsters, Local Union No. 443, a/w International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive bargaining representa-
tive in the following appropriate unit, and embody in a
signed agreement any understanding reached:
All truckdrivers employed by Respondent at his Mil-
ford, Connecticut, location, exclusive of all clerical
employees, guards, and supervisors as defined in the
Act.
(c) Post at his premises in Milford, Connecticut, copies of
the attached notice marked "Appendix." 25 Copies of said
notice , on forms provided by the Regional Director for
Region 1, after being duly signed by Respondent, shall be
posted by Respondent immediately upon receipt thereof,
and be maintained by him for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to assure that said
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 1, in writing,
within 20 days of this Order, what steps Respondent has
taken to comply herewith.
25 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to give
evidence, it has been found that I have violated the
National Labor Relations Act, and I have been directed to
post this notice. I intend to abide by the following:
I WILL NOT question any employees about their union
membership, sympathies, or activities.
I WILL NOT do anything to give employees the
impression that their union activities are being watched.
I WILL NOT ask or require any employee to make a
commitment not to join a labor organization.
I WILL NOT say that I will sell the business or close it
down or take other adverse action if employees choose
to be represented by a union.
I WILL NOT discourage membership in Teamsters
Local Union No. 443, a/w International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, or any other labor organization, by
discharging any employee or otherwise discriminating
in regard to their hire or tenure or terms and conditions
of employment because of their union activities, sympa-
thies, or affiliation, except to the extent authorized by
the proviso of Section 8(a)(3) of the Act, as amended.
I WILL NOT in any manner interfere with, restrain, or
coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
I WILL offer Peter H. Loux full and immediate
reinstatement to his former job and I WILL make him
whole for any loss he suffered by reason of the
termination of his employment on September 8, 1975.
I WILL, upon request, bargain collectively with
Teamsters, Local Union No. 443, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as the exclusive bargaining
representative of all truckdrivers with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment, and, if an understanding is
reached, I WILL embody such understanding in a
written signed agreement.
JAMES INNACO, D/B/A
SKYLINE TRANSPORT