Truck and Trailer Service

National Labor Relations Board - Board Decisions

Dec 21, 1978

239 N.L.R.B. 967 (N.L.R.B. 1978)

TRUCK AND TRAILER SERVICE
Harold Jackson, a sole proprietor, d/b/a Truck and
Trailer Service and Chauffeurs, Teamsters, Ware-
housemen and Helpers Local Union No. 135, 9/w
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Cases 25-CA-8832, 25-CA-9057, and 25-RC-
6613
December 21, 1978
IT IS FURTHER ORDERED that Case 25-RC-6613 be,
and it hereby is, remanded to the Regional Director
for Region 25 to open and count the ballots of James
Buchanan, Alfred Hite, James Wise, and Ronald
Moody and :hereafter to prepare and cause to be
served on the parties a revised tally of ballots, includ-
ing therein the count of said ballots, upon the basis
of which he shall then issue the appropriate certifica-
tion.
DECISION AND ORDER
BY MEMBERS JENKINS. MURPHY. AND TRUESDAI.E DECISION
On April 27, 1978, Administrative Law Judge Jul-
ius Cohn issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record ' and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,2 and
conclusions ' of the Administrative Law Judge and
to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Harold Jackson, a sole
proprietor, d/b/a Truck and Trailer Service, Muncie,
Indiana, his agents, successors, and assigns, shall
take the action set forth in the said recommended
Order.
IT IS FURTHER ORDERED that the complaint be dis-
missed as to those allegations not specifically found
herein.
IDuring the course of the hearing Petitioner introduced as Pet. Exh. I(a)
through I(h) copies of Clara Anderson's timecards. pa)roll records, and
canceled checks to support its contention that. contrarM to Respondent's
position. Anderson should not be included in the unit. Pursuant to Petitio-
ner's request, Respondent produced these records at the hearing but. despite
repeated requests by the General Counsel. never forwarded copies for the
record.
2 Respondent has excepted to certain credibility findings made hb the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dr, Wall/ Products, In,. 91
NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951) We have carefully
examined the record and find no basis for reversing his findings
3In the absence of exceptions thereto. in Case 25 RC -613. we adopt,
projornua the Administrative Law Judge's recommendations to overrule the
challenges to the ballots cast by James Buchanan and James Wise. and to
sustain the challenge to the ballots of Gary McCall and Joseph liall
STATEMENT OF THE CASE
JULIUS COHN. Administrative Law Judge: These consoli-
dated cases were heard at Muncie, Indiana, on August 1, 2,
and 3, 1977. The charges in Cases 25-CA-8832 and 25-
CA-9057 were filed respectively on April 8 and June 28,
1977, by Chauffeurs, Teamsters, Warehousemen and
Helpers Local Union No. 135 a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, herein called the Union. On May 20,
1977, the Regional Director for Region 25 issued a com-
plaint in Case 25-CA-8832, alleging that Harold Jackson,
a sole proprietor, d/b/a Truck and Trailer Service, herein
called the Respondent, violated Section 8(a)(1) and (3) of
the Act. Thereafter, a second complaint dated July 14,
1977, was issued in Case 25-CA-9057 alleging further vio-
lation by Respondent of Section 8(aX1) and (3) of the Act.
By order of the same date these cases were consolidated for
hearing.
On April 8, 1977, the Union filed a petition for an elec-
tion in Case 25-RC-6613. Pursuant to a Stipulation for
Certification Upon Consent Election, an election by secret
ballot was conducted on May 19, 1977, among the employ-
ees of Respondent in an agreed upon appropriate bargain-
ing unit. The tally of ballots, which was served upon the
parties following the election, showed that there were ap-
proximately nine eligible voters, that nine ballots were cast,
that one of the ballots was cast for the Union, one ballot
was cast against the Union, and seven ballots were chal-
lenged. The challenged ballots were sufficient in number to
affect the results of the election. No timely objections to
the election were filed. On June 21, 1977, the Regional
Director issued a report on challenged ballots and an order
consolidating the representation case for hearing together
with the unfair labor practice cases to resolve the issues
raised by the challenges to the ballots of the seven voters.
The Regional Director also ordered that after decision by
an Administrative Law Judge, the representation case be
transferred to and continued before the Board.
Issues
The supervisory status of Helen Jackson. wife of the sole
proprietor, and Joel Hall.
Whether Respondent violated Section 8(a)(1) of the Act
by threatening employees with closure of the business and
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
loss of their jobs; interrogating employees concerning
union activities; and blacklisting by giving bad references
to prospective employers of former employees.
Whether Respondent violated Section 8(a)(3) of the Act
by discharging Ronald Moody, and James Wise, and de-
creasing the number hours worked by Richard Nannie and
ultimately discharging him, because of their union activi-
ties.
Whether employees Anderson, Buchanan, and McCall
were irregular employees and therefore ineligible; whether
employees Hall, Hite, and Wise were supervisors, and
whether Moody was discharged for cause and therefore
ineligible to vote in the election.
All parties were given full opportunity to participate, to
produce relevant evidence, to examine and cross-examine
witnesses, to argue orally and to file briefs. A brief submit-
ted by the General Counsel has been carefully considered.
Upon the entire record of the case and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent, a sole proprietor, Harold Jackson, operat-
ing under the name of Truck and Trailer Service, maintains
an office and place of business at Muncie, Indiana, where
it is engaged in the business of repairing and transporting
trucks, cars and semitrailers for commercial customers.
During the year preceding issuance of the complaint Re-
spondent sold goods and performed services valued at
more than $50,000 to a number of customers including In-
diana Bell Telephone Company, Excelsior Truck Leasing,
and others who are directly involved in interstate com-
merce, either as a public utility or as a shipper or receiver
of goods and merchandise in interstate commerce valued
at more than $50,000. The complaint alleges, Respondent
admits, and I find that Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Harold Jackson has owned and operated the business for
some 32 years. He does mechanical repairs on trucks, trac-
tors, trailers, and some automobiles, as well as painting
and bodywork for the customers. A substantial portion of
the business involves wrecker service for which Respon-
dent is frequently called directly by the state police. Harold
Jackson himself is deeply involved in all facets of the busi-
ness and is the only one capable of driving the largest of
the eight wreckers used by Respondent. Other employees
who drive wrecker trucks also are engaged in doing me-
chanical work. As of the date of the petition, Respondent
had eight employees and a ninth whom it alleges came in
to take inventory.
In March 1977 some of the employees began discussing
whether they should seek representation by a union. They
communicated with the Union and obtained authorization
cards which were distributed and signed by a number of
the employees. On March 31, Arthur Hicks, business agent
of the Union, personally delivered a letter to the office of
Respondent demanding recognition. In the absence of the
Jacksons, he left this letter with Ruth Noble, the office
secretary, and sent a copy to Respondent by registered
mail. Most of the events to be discussed herein occurred
just before and after the delivery of this letter.
B. The Status of Helen Jackson and Joel Hall
1. Helen Jackson
Respondent has denied that Helen Jackson is a supervis-
or or acts in any such capacity. However, it is clear from
the record as a whole but particularly from the direct testi-
mony of both Jacksons that Mrs. Jackson is unquestion-
ably a supervisor and an agent within the meaning of the
Act. Although Mr. Jackson is the sole owner of the busi-
ness, the property and real estate upon which the business
functions, is jointly owned by the Jacksons. In discussing
the operation, Harold Jackson testified flatly that he and
his wife hire and fire everybody. Mrs. Jackson works full
time at the business and operates very closely with her hus-
band. She is involved in all aspects of the business, from
signing checks, keeping business records, hiring employees,
disciplining employees, firing employees, giving wage in-
creases. and even, in her own words, to greasing trucks. I
find that Helen Jackson possesses and exercises the indicia
of supervisory authority and is therefore an agent of Re-
spondent and a supervisor within the meaning of Section
2(11) of the Act.
2. The supervisory status of Joel Hall
Prior to February 19, 1977, Respondent had employed a
man named Fullhart as service manager, who occupied a
separate office within the garage which was furnished with
a desk, telephone, and file cabinet. He directed the work of
the mechanics and was responsible for pricing parts and
labor on the work orders. In February Fullhart left the
employ of Respondent and, according to Ruth Nobel who
was then the office secretary, the Jacksons had a conversa-
tion in her presence concerning the filling of that position.
Noble herself had been employed in the office from Janu-
ary 24 until April 25, 1977, when she resigned. I found her
lo be a highly credible witness who spoke in a forthright
manner and has no interest in this proceeding, as she is no
longer employed nor related to any of the employees or to
the Jacksons. I therefore credit her testimony as to the sta-
tus of Hall as well as in other matters which will be hereaf-
ter discussed.
Noble testified that when Fullhart left, the Jacksons dis-
cussed whether they should fill his position as service man-
ager at all. They then decided to appoint one of their peo-
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TRUCK AND TRAILER SERVICE
pie and debated whether they should select Moody or Hall.
Although they felt that Moody could better talk with cus-
tomers, they selected Hall because he was better qualified
as a mechanic. Thereupon the Jacksons instructed Noble
to change Hall's payroll card indicating his new position
and immediately raise his pay to what Fullhart had been
earning. From this point on Hall did very little of the me-
chanical work himself but was engaged in his office work-
ing on the service orders.' Noble also testified to an occa-
sion when she had been instructed on payday not to release
paychecks until 5 p.m. Hall directed her to give a check to
an employee who felt ill, and told Noble to inform the
Jacksons that he, Hall, okayed this. In addition, employees
testified that Hall gave them work to do, checked their
work, and since Fullhart left, he himself did very little of
the mechanical work. Hall stated that in the absence of the
Jacksons he gave out work and at all times checked on the
work of other employees. Both Moody and Wise testified
that Hall was the one who told Moody he had been dis-
charged, a fact which Hall acknowledged.
I find in the circumstances that Hall occupied the posi-
tion of service manager of Respondent, that he was in
charge of the operation in the absence of the Jacksons, and
responsibly directed the work of the employees, and there-
fore conclude that Joel Hall is a supervisor within the
meaning of the Act.
C. The Alleged 8(a)(1) Violations
i. The interrogations
During the latter part of March, the employees, particu-
larly Richard Nannie, spoke with one another concerning
the possibility of obtaining union representation. These
conversations were carried on both in the shop and outside
in a restaurant during lunch hour. Nannie had telephoned
the Union and spoken to Business Agent Hicks and asked
him how to organize. He then went to the union hall and
picked up authorization cards. On March 29, he passed out
cards to employees Wise, Updike, and Hite and obtained
signed cards from all of them on March 30. Nannie also
called Moody who was at home on March 30 and asked if
he was interested. Moody then attended a meeting with
other employees at the Union hall on March 31, and signed
an authorization card there.
On March 30, the day that he signed a card, Wise was
approached by Mr. Jackson in the presence of Hall. Jack-
son said, "What the hell have you got to do with this
Union?" Wise replied that he had nothing to do with it and
Jackson said that he had heard that Wise was the instigator
of all this.
On March 31, after the Jacksons received the letter from
the Union demanding recognition, there ensued a great
deal of activity on their part. According to Noble, Mrs.
There was considerable testimony concerning these work orders mostly
with regard to who actually filled them out. Noble. however, clarified testi-
mony which was somewhat confusing, and stated that any employee, in-
cluding herself, L ,uld fill out certain information on a work order hut it was
only Hall or the Jacksons who could do the pricing of the parts and labor,
Jackson asked her to bring in Nannie. When he came into
the office, Mrs. Jackson told him that she heard he was
behind the union activity. Nannie said that he did not want
to lose his job so why should he do anything like that. Mrs.
Jackson said she did not know why because she had been
good to him and he would lose his job and his house if he
was behind the Union. After Nannie left Mrs. Jackson
asked Noble whether she thought he was telling the truth.
Mr. Jackson, who had been out of the office, returned
and reported that he had talked to Wise and asked him if
he was behind the Union and Wise said he did not know
anything about it. In her own testimony, Mrs. Jackson ad-
mitted the interrogation of Nannie on March 31.
Wise testified that after March 30 Mrs. Jackson came
over at least six or seven times and asked him how the
Union was going. On one occasion she said that "the damn
Union is no good and we're going to take care of it."
Hite, another employee, testified that after cards were
signed he talked about the Union with Hall at lunch.
Thereafter, Hall asked him two or three times what was
going on about the Union and Hite would reply that he did
not know anything.
It is clear that Respondent, by both Jacksons and Hall,
interrogated employees concerning their union activity. As
these interrogations were made in the context of antiunion
threats, they were coercive and thereby violated Section
8(aX I) of the Act.
2. The unlawful threats
Noble testified that after she gave the Jacksons the letter
delivered by Hicks on March 31 and Mr. Jackson had read
it, he said that he would not have a union, that he would
close the business down before he would let the Union in,
and he was not going to let anyone tell him how to run his
business. Some time later that day Hicks called in order to
ascertain whether the Jacksons had received the letter.
Both Mr. and Mrs. Jackson got on extension phones and
told Hicks that they were not going to let the Union come
in: that they would close it down. They said they could do
away with Nannie's job and with the body shop itself if
they had to, before they let a union come in. Mrs. Jackson
substantially corroborates the testimony of Noble concern-
ing this phone call. She said that her husband told Hicks
that he could not understand what a union could be doing
in a small shop, that he did most of the wrecker work and
if he could not do it, there was nobody else that could, and
if he could not himself run a wrecker there would be no
way he could operate the plant.
Both Noble and Hicks credibly testified to a telephone
call Hicks said he received from Mr. Jackson on April 5.
Jackson told Hicks that there would never be a union in his
place, he was not going to live with the Union and "the
people were so dumb they could not do anything without
him." Jackson said he could do away with the jobs if he
wanted, and he would close the place down before he
would live with the Union.
Hicks also related an incident which occurred immedi-
ately after the election, while the Jacksons and their attor-
ney and Hicks were on their way back to the polling area.
Jackson said to him, "You want to see me close this damn
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
place down don't you." Hicks stated that the attorney tried
to quiet down Jackson at that point.
Toni Moody, wife of alleged discriminatee Ron Moody,
spoke by telephone with Mrs. Jackson about April 7 con-
cerning health insurance payments. In the course of that
conversation, in which Mrs. Jackson accused Ron Moody
of being the instigator of the Union, Mrs. Jackson also
stated that as far as she was concerned the place wo.ld be
closed down and the trucks leased out before she would
have a union come in. She said also that the body shop is
unnecessary and they could get rid of that too. Mrs. Jack-
son told Mrs. Moody that her husband would never get a
job in Muncie unless it was in a union shop. Toni Moody
testified credibly and, in any case, Mrs. Jackson, who testi-
fied at great length during the hearing, did not specifically
contradict these statements and this conversation.
A number of the threats made by the Jacksons were di-
rected to Richard Nannie, who had rented a house belong-
ing to the Jacksons at the same time as he had been em-
ployed. Thus, when Mrs. Jackson interrogated him
concerning his signing a union card as described above,
she also asked him if it was a nice thing to do after she had
rented him a house. She told him that she was going to sell
the house. Mrs. Jackson further said that his job had been
created for him and they could do without it. Noble cor-
roborated this, testifying that Mrs. Jackson told Nannie he
could lose his job and his house if he was behind the
Union. Noble also stated that Mrs. Jackson instructed her
to type an eviction notice on March 31.
James Wise testified that between the time of the signing
of the cards and the election Mrs. Jackson initiated several
conversations with him about the Union. Wise stated that
she would say things like the Union isn't any good; that if
he and Hite thought anything about their jobs they had
better vote no. This warning occurred a few days before
the election. Mrs. Jackson also said that the jobs were
going to be terminated, and another shop in which the
Union had come in had closed and they would not be able
to find a job anywhere. On an occasion after the election
Mrs. Jackson told him that he was going to pay for signing
one of those union cards.
Wise also testified that between the signing of the card
and the election, Mr. Jackson told him that he had a good
job until he signed the union card. Jackson said he did not
know why Wise wanted a union because the shop would
close down and he would take his wreckers and run them
out of his own house.
Both Jacksons testified at some length in connection
with the discharge of Wise, but in their testimony did not
allude to their conversations with him concerning threats
of closing of the business and loss of jobs. On the basis of
their failure to deny, as well as their demeanor and hostility
with respect to the subject of union representation, I credit
Wise with respect to these conversations.
The credited testimony establishes and I find that Re-
spondent on many occasions threatened employees with
the closure of the business, termination of their employ-
ment and, in the case of Nannie, eviction from his house,
all because of their activities on behalf of the Union, and
by such conduct, thereby violated Section 8(aXI) of the
Act.
3. The alleged blacklisting of employees
It is contended that Respondent sought to blacklist Nan-
nie and Moody from obtaining other employment by giv-
ing unfavorable references. Noble testified to telephone
conversations in the office with other employers concern-
ing these two employees. On about April I, Noble over-
heard Mrs. Jackson making a telephone call and inquiring
whether the other party had a Richard Nannie working
there. Mrs. Jackson then said, "If you have, you better
watch him, he's a union instigator. And if you don't have a
union there he'll try to get one in."
Noble further stated that on April 21, she received a
telephone call from someone who was seeking a reference
for Ron Moody. Noble said that she could not give this but
he had to talk to Mr. Jackson who then got on the phone.
Jackson told this party that Ron Moody was a union insti-
gator and was not a desirable person to have working for
him.
As has been previously discussed, Noble was a highly
credible witness and as these conversations were not de-
nied by the Jacksons, I find that by deliberately making
these unfavorable comments concerning the union activi-
ties of Moody and Nannie, Respondent sought to destroy
their opportunities for employment and further violated
Section 8(a)(1) of the Act.
4. The allegation of promises of benefit
Wise testified that about a week after March 31, Mrs.
Jackson came over and said she was going to give them a
vacation with pay. She also said, "You know that damn
Union ain't no good." She went on to say, "We're going to
take care of you." I find this promise of a paid vacation
linked as it was to denunciation of the Union, an unlawful
promise of benefit in order to urge employees not to vote
for the Union, and thereby a violation of Section 8(aX1) of
the Act.
Wise also testified that for about 3 weeks prior to the
election, Respondent neglected to deduct from his pay the
amount due for health insurance. He called this to Mrs.
Jackson's attention and she told him not to worry about it.
At the end of the pay period following the election, Re-
spondent then deducted for all 3 weeks at one time. Re-
spondent has contended that this was an error in connec-
tion with Wise's paychecks due to the fact that a new
secretary commenced working in the office at that time.
Since there is no evidence that the same thing occurred
with any other employee I find Respondent's explanation
is plausible and that the General Counsel has not shown by
a preponderance of the evidence that a violation of the Act
occurred with reference to the insurance deductions from
Wise's pay.
D. The Alleged 8(a)(3) Violations
I. Richard Nannie
Nannie was hired by the Jacksons on February 9, 1977,
and at the same time he rented a house which they owned.
Although not a qualified mechanic, Nannie was informed
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TRUCK AND TRAILER SERVICE
by the Jacksons that they would train him as a mechanic
and a wrecker driver. However, he was also to perform
various cleanup work in the garage area as well as run
errands and do other jobs as required. His employment
records show that he worked relatively full weeks until
April I, and actually had been employed for 44 hours in
the payroll week ending March 31. His hours of employ-
ment then precipitously declined in April so that for the
week ending April 7 he worked 23-1/2 hours, 3-1/2 hours
in the week ending April 14, 4 hours for the week ending
April 21 and no hours for the week ending April 28.
As set forth above, Nannie was the principal union pro-
tagonist having discussed the question of union representa-
tion with other employees during the latter part of March,
contacted the Union, obtained cards from the Union, had
them signed by several employees and returned to the
Union by March 30. Although the Union delivered by
hand its demand for recognition on March 31, the Respon-
dent had knowledge of the union activity on the preceding
day. This is based upon the testimony of Mrs. Jackson
herself who said that on the morning before they received
the letter from the Union, which she believes to be March
30, an employee came to her and said that he was scared
because Moody and Nannie told him they were going to
get some fellows to beat him up. At another point Mrs.
Jackson testified that she heard shop talk from employees
Stafford and Buchanan about the Union. She said that
Stafford was scared to death because they threatened him.
She repeated that this was before she received the letter
from the Union dropped off on March 31. At still another
point in her testimony, Mrs. Jackson said she knew Nannie
signed a card because Stafford told her. In these circum-
stances, I find that Respondent had knowledge of the
union activities of its employees on at least March 30, the
day before it received the demand from the Union.
The Jacksons contend that Nannie's work hours were
reduced in April because there was no longer any work for
him to do. They stated he was not qualified as a mechanic,
that there was need for someone to do the cleanup chores
during the winter when the other employees were busy on
wrecker calls and repairs, and that commencing in April
with better weather the other employees could attend to
some of the cleaning themselves. This contention is negat-
ed once more by the testimony of the Jacksons themselves.
Mr. Jackson testified that they had created a job for Nan-
nie because they felt sorry for him, and even gave him a
house in which to live. He went on to say that after April I
they no longer felt sorry for Nannie because he did not feel
sorry for them and because of the things he did. Mrs. Jack-
son testified that they really had no need for him but had
felt sorry for him. In almost the same breath she went on to
say that she learned about Nannie's actions concerning the
Union from another employee. With reference to the evic-
tion notice, Mrs. Jackson testified that she thought "If
Nannie was that kind of guy," she better have an eviction
notice ready telling him that he would have to move. Ruth
Noble testified that on the afternoon of March 31, Mrs.
Jackson called Nannie's mother-in-law and asked if she
knew anything about it. Mrs. Jackson told the mother-in-
law that she had been good to him, gave him a job and a
house to live in and now he's trying to start the Union. She
said somebody had better talk to him because he's going to
lose both his house and job if he doesn't stop. Noble fur-
ther stated that on the following day, April 1, Mrs. Jackson
directed her to type up the eviction notice as they were
only going to let Nannie work enough to pay the rent. The
same day Mrs. Jackson made the phone call described
above in which she inquired of her party whether Nannie
was working there and warned them about his being a
union instigator.
Noting that he was subjected by Respondent to conduct
in violation of Section 8(a)(l), I find further that because of
Nannie's union activities, Respondent, during the month
of April, gradually reduced his hours of employment to the
vanishing point during the last week of April 1977, and
thereby effectively discharged him in violation of Section
8(a)(3) and (1) of the Act.
2. Ronald Moody
Moody was hired as a mechanic and wrecker driver in
October 1976. He was out for 2 or 3 days prior to Christ-
mas 1976, and then about March 1, 1977, he lost 3 days
because of a back injury. Moody returned and worked un-
til March 14 when his back popped out while he was under
a trailer and he could not straighten up. Respondent sent
him to their doctor at the Muncie Clinic on that date and
he remained home with his back injury until March 28
when he returned to work for that day. In the interim,
Harold Jackson came to his house on March 22 and picked
up keys which Moody had in his possession. There was
some conversation concerning the identity of the keys and
Jackson testified he also told Moody he needed someone to
depend on, stating at the hearing that he meant these
words to be a discharge of Moody. There were no specific
words spoken concerning discharge or termination.
During his absence, Toni Moody, his wife, spoke from
time to time with Mrs. Jackson reporting on his condition
and occasionally discussing medical insurance. Mrs.
Moody testified that on March 24, she received a call from
Mrs. Jackson concerning an insurance card which would
assist in paying some of the doctor bills. She picked up the
card at Respondent's premises on that date and told Mrs.
Jackson that Moody would be in to work on March 28. He
did report and worked that entire day. However, the fol-
lowing morning he could not straighten up and Mrs.
Moody called Respondent and informed them that he had
gone to a doctor. He was unable to work on March 30 but
on March 31 Noble called Mrs. Moody with a message for
her husband to pick up his check. Mrs. Moody replied that
she could not accept that Moody was fired unless told per-
sonally by Mr. or Mrs. Jackson. Thereafter, having ob-
tained a release from his doctor that he was able to work,
Moody went to Respondent's premises on April 15 and
handed the doctor's papers to Hall saying that he was there
to work. Hall told Moody that he could not let him work
because he was still fired and then Moody picked up his
tools.
On March 30, while at home, Moody had received a call
from Nannie asking whether he was interested in the
Union and he replied that he was. Then on March 31
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moody went to the union meeting and signed an authoriza-
tion card there.
Noble credibly testified that on the afternoon of March
31, after she turned over to the Jacksons the demand letter
delivered by the Union, the Jacksons, among other things,
discussed each employee and finally decided it must have
been Moody who was behind this action because, as Mr.
Jackson believed, he had been fired on March 22. Shortly
after reaching that conclusion, Mrs. Jackson told Noble to
call Moody at home and tell him to come and pick up his
check. Although Mrs. Jackson testified they did not know
Moody instigated the Union and so informed Mrs. Moody,
she admitted that in an affidavit submitted to the Board
she declared, "I suspect that Moody was the instigator of
the Union." She said this was part of the shop talk she had
heard from Stafford and Buchanan. In addition, there is
the finding that later in April Mr. Jackson told a plumbing
concern calling for a recommendation that Moody was a
union instigator and not a desirable employee.
While it is true that Moody may have been somewhat
less than a satisfactory employee because of his protracted
absences for medical reasons, nevertheless I find that he
was not discharged until March 31, in an atmosphere of
other independent violations of Section 8(aX)(1) of the Act
by the Jacksons. I do not find, as alleged, that he was
terminated on March 22 when Harold Jackson went to his
house to pick up the keys. Concededly Jackson used no
specific words of discharge or termination. Even assuming
he did mention to Moody that he needed somebody he
could depend on, this could be attributed to complaining
or grousing on his part. In any case, Mrs. Moody went to
Respondent's premises 2 days later and picked up some
insurance material and informed Mrs. Jackson without re-
sponse that Mr. Moody would be in to work on March 28.
In addition Moody did work the entire day of March 28
without comment from the Jacksons. Moreover, when he
was unable to come to work on March 29 no action was
taken at that time. The immediate decision and action to
terminate him occurred on March 31 shortly after receiving
the demand for recognition from the Union. I find there-
fore that Moody's discharge was motivated by his union
activity and conclude he was discharged by Respondent in
violation of Section 8(aX3) and (1) of the Act.
3. James Wise
Wise was employed in the body shop where he did body
repair work and painting of vehicles. He was the sole em-
ployee in that shop except on occasions when someone
would be sent in to help him for a short period of time.
Actually Wise had served three tours of duty as an employ-
ee of Respondent, having first worked in 1973 and quitting
after a year and a half. He worked on another job for
several months until Mrs. Jackson called him to return.
Wise then worked for Respondent for another year until he
was fired by Mrs. Jackson. In July 1976, he called and
asked whether they needed a bodyman and was told to
come back to work.
On March 28, 1977, Nannie asked him if he would be
interested in a union and he said he would; thereafter Wise
signed an authorization card which he received from Nan-
nie on March 30. As discussed in more detail above, Wise
was on various occasions thereafter the recipient of coer-
cive interrogation by the Jacksons and threatened with loss
of his job. In the representation election conducted on May
19, Wise served as the observer for the Union. After the
election Harold Jackson said to him "Thanks for your
help." Mr. Jackson went on to say that he was going to
terminate his job and when Wise asked if he was fired,
Jackson replied, "No, now I'm going to wait awhile." At
another point after the election Mrs. Jackson told him he
had been nothing but a damn agitator ever since he had
been there and ever since he had signed a card for the
Union. She also said that he was going to pay for signing
one of those cards. As to these incidents I credit Wise since
they all are in character with what the Jacksons had been
doing throughout the period following the Union demand
up to and even after the election.
On June 21 Wise was touching up paint on a truck when
the ladder on which he was standing broke and he twisted
his back. This incident, which was observed by Al Hite,
occurred just before lunch and Wise continued and went to
lunch. After lunch he told Hite that he felt sick and was
going home. Hite said that he had better tell the people in
the office about it. Joel Hall, his supervisor, testified that
Wise spoke to him about going home shortly after lunch.
This is in effect corroborated by Vondalee Wright, then the
office secretary, who stated that on the day Wise fell from
the ladder, Hall stuck his head in the office and said Wise
went home and this occurred a little after lunch. She also
said she reported this to the Jacksons as soon as they re-
turned. These seemingly unimportant details are noted be-
cause they reflect adversely upon the credibility of Respon-
dent's version of the events of thai afternoon. Mrs. Jackson
testified that she spent a good deal of that afternoon mak-
ing telephone calls around town to ascertain the wherea-
bouts of Wise because he had apparently left without noti-
fying anyone.
In any case what immediately transpired is set forth in
the testimony of Bernice Wise, the wife of James, whom I
credit. She stated that on June 21 she received a telephone
call from Mrs. Jackson at a time when her husband had
not as yet returned. Mrs. Jackson told her that her husband
had deliberately fallen off a ladder and was fired. She also
informed Mrs. Wise that he was the instigator of the
Union, a troublemaker, and when the election had been
held, he was the "steward" who challenged all the votes.
Mrs. Jackson said she did not want him around there any-
more. Mrs. Wise said that she had to leave the house at
that point but called back a little later and was informed at
about 2 p.m. by her daughter that her husband had come
home and gone to bed.
Respondent, by Harold Jackson, contended that Wise
was discharged on June 21 because he walked off the job.
From the testimony of the Jacksons it appears that Re-
spondent would infer that Wise just walked off without
permission or even reporting to anyone. However this is
refuted by the testimony of supervisor Hall, who told Von-
dalee Wright, that Wise had left for home. Harold Jackson
stated they were looking for Wise that afternoon, but he
also testified he observed Wise coming back into the ga-
rage sometime later that afternoon with another man. It is
972
TRUCK AND TRAILER SERVICE
curious that Jackson who was looking for him did not at-
tempt to talk to Wise if he did indeed return as alleged.
Despite the contention that Wise was fired for leaving
his work on June 21, there was a good deal of testimony on
certain other matters. Mr. Jackson testified at some length
concerning the job of painting stripes on a vehicle during
the last few days of Wise's employment claiming it was
improperly done. On the other hand Jackson at another
point testified that he had no problem with Wise's ability
as an employee and makes clear that he did not discharge
him for bad work performance. In addition testimony was
set forth by both Jacksons to the effect that Wise had a
drinking problem. If this was the case, and it might well
have been, the Jacksons put up with such conditions dur-
ing three different periods of employment. The second
time he was employed he was solicited to return by Mrs.
Jackson. Wise himself applied the last time but was hired
only after deliberation by both Jacksons. Mr. Jackson said
they knew about his drinking but were only interested in
his doing his job. Finally, it is also contended by the Jack-
sons that Wise in some manner deliberately caused the lad-
der to break and thereby injured himself. There is no evi-
dence that the ladder was deliberately broken by Wise and,
at best, such contention is nothing but conjecture. In fact
Mrs. Jackson testified that she was informed by Hite that
Wise was on the ladder when it broke. Hite, Respondent's
witness, testified that he saw Wise on the ladder when it
broke and described the manner in which Wise was in-
jured.
In sum I am not persuaded by any of Respondent's rea-
sons for the discharge of Wise. Against a background of
multiple violations of Section 8(aXl) of the Act, many di-
rected to Wise himself, in the course of which he was sub-
jected to coercive interrogation, threats concerning his loss
of a job both before and after the election in which he
served as the union observer, I find that Wise was termi-
nated by Respondent because of his activities on behalf of
the Union and by such conduct Respondent thereby vio-
lated Section 8(a)(3) and (1) of the Act.
IV THE CHALLENGED BALLOTS IN THE REPRESENTATION CASE
A. James Buchanan and Gary McCall
The ballots of James Buchanan and Gary McCall were
both challenged by the Petitioner on the ground that they
were irregular employees. At the hearing it was stipulated
that James Buchanan, a regular part-time employee, was
eligible and the Petitioner withdrew its challenge to his bal-
lot. It was further stipulated that Gary McCall was ineligi-
ble and therefore it is recommended that the challenge to
his ballot be sustained.
B. Clara Anderson
Clara Anderson was challenged by the Petitioner on the
ground that any work she may have performed for the
employer was on an irregular basis and that her work
would in any case be outside the appropriate bargaining
unit. The employer on the other hand maintained that An-
derson had been employed since 1976 as a dispatcher, a
parts chaser, and that she takes inventory of parts each
month.
Anderson had worked full-time for the Respondent from
December 6, 1969, until March 1976 as an office secretary.
According to Anderson, after March 1976 she did part-
time work. She answered Respondent's telephone in her
home and received emergency calls and dispatched wreck-
ers when the Jacksons were not home. Anderson stated
that she also ran parts for the Jacksons and did the inven-
tory once a month. As to the parts, Anderson said that in
the event a part was unavailable she would go wherever it
was to obtain it and deliver it to the garage or sometimes
leave it at the Jacksons' home. The parts inventory which
she did once a month took her a couple of hours. Anderson
testified that at the time of the hearing she had an arrnage-
ment whereby she was being paid a flat sum of $50 a
month for these varied services but that payment was de-
ferred until Christmas time she she would receive a lump
sum. She stated however that this arrangement was put
into effect sometime after the election.
Anderson testified that her sole reason for being in the
office at any given time would be in connection with her
inventory work. She said that while she comes into the
shop quite often, that doesn't mean she is working. She
said that she comes in at least once a week for the purpose
of working, a statement I do not credit, since by her own
words, the only work she had to do in the office was in
connection with taking inventory which only takes 2 hours
a month. Employee witnesses testified that they rarely saw
her at the premises. Noble, whom I consistently credit, and
who was employed from January 24 through April 25 testi-
fied that while she was working she saw Anderson on sev-
eral occasions. Anderson would come in once or twice a
week to talk to Mrs. Jackson because they were friends.
She stated that she saw Anderson come in to work not
more than three or four times. One of those times was
when the Jacksons were away in Florida and Anderson
came in one afternoon to relieve Noble and on the follow-
ing Monday with the mail. More importantly Noble testi-
fied that she did the payroll and while she was there she
never made out a check for Anderson. The alleged arrange-
ment for payment at the end of the year was not reached
until after the election, and therefore not in effect during
the prior period. Al Hite, a witness for the Respondent,
stated that he only saw Anderson take the inventory once.
On the basis of all the credited testimony I find that
Anderson was not a regular employee, but worked if at all
on too casual and sporadic a basis to find she had a suffi-
cient community of interest with other unit employees to
be included in the same unit with them. Accordingly I shall
recommend that the challenge to Anderson's ballot be sus-
tained.
C. Joseph Hall and Al Hire
Joseph Hall was challenged by the Union as a supervis-
or. In the course of the discussion above I have already
found that Hall is indeed a supervisor within the meaning
of Section 2(11) of the Act, and I shall therefore recom-
mend that the challenge to his ballot be sustained.
Alfred Hite was challenged by Respondent as a supervis-
or. Hite was hired on October 1. 1976, as a wrecker driver
973
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and mechanic. On direct examination by Respondent he
testified that he spends 80 percent of his time as a mechan-
ic and 20 percent as a driver. As previously discussed, No-
ble testified that any number of people could and did write
up the service orders for customers, the important part
being the pricing which is done later by either the Jacksons
or Hall. In any case I do not rely on the function of writing
up a service order to confer supervisory authority on any of
the employees involved, as that function appears to be only
ministerial. Hite himself testified that when hired, he was
told that he would be a general mechanic, a wrecker driver
and work on trailers; he was not told that he had the power
to hire, fire, discipline, or recommend wage increases and
he has not performed any of these functions. Hite also tes-
tified that on occasion he would be directed by Mr. Jack-
son or Hall to help Wise in the paint shop. In conclusion I
find that Hite is not a supervisor within the meaning of the
Act as he neither performs nor possesses any of the indicia
of authority prescribed in the Act for supervision. Accord-
ingly, I shall recommend that the challenge to his ballot be
overruled.
D. James Wise
Wise's prior employment history with Respondent has
already been discussed. At the election Respondent chal-
lenged the ballot of Wise on the ground that he was a
supervisor. This contention is based on the allegation that
he was "in charge" of the body shop in which Wise was the
sole regular employee assigned. Most of the time he
worked alone except on occasion when another employee,
sometimes Hite, may be directed by Jackson to go into the
body shop to assist Wise. Usually this would be in connec-
tion with painting and that employee might be requested to
do some sanding work. At such time, Wise may tell that
employee what area of the vehicle to sand and perhaps
even how to do it. In other situations the employee, such as
Hite, would know himself what to do. In any event, there is
no evidence that Wise possessed the power to hire, fire,
discipline, responsibly direct employees, or effectively rec-
ommend any action regarding employees. As Wise did not
possess or exercise any of the supervisory indicia required
under the Act, I find that he is not a supervisor and shall
recommend that the challenge to his ballot be overruled.
E. Ronald Moody
As I have found that Moody was discriminatorily dis-
charged by Respondent on March 31, in violation of the
Act, and is thereby entitled to reinstatement, I further find
that he was eligible to vote in the election conducted on
May 19, and therefore recommend that the challenge to his
ballot be overruled.
Having found that James Buchanan, Alfred Hite, James
Wise, and Ronald Moody were eligible to vote in the elec-
tion and having overruled the challenges to their ballots, I
shall further recommend that the representation proceed-
ing be remanded to the Regional Director with a direction
to open and count their ballots; and that the challenges to
the ballots nf Clara Anderson, Gary McCall, and Joseph
Hall be sustained.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with the operations of Re-
spondent described in section 1, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
Vl THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent discharged Richard
Nannie, Ronald Moody, and James Wise in violation of
Section 8(a)(l) and (3) of the Act, I recommend that Re-
spondent be ordered to offer them reinstatement and to
make them whole for any loss of earnings and other bene-
fits resulting from their discharge by payment to them of a
sum of money equal to the amount they normally would
have earned as wages and other benefits from the dates of
their discharges to the date on which reinstatement is of-
fered, less net earnings during that period. In the case of
Richard Nannie, his entitlement shall commence March 31
when his hours had been reduced as a result of discrimina-
tion against him. The amount of backpay shall be comput-
ed in the manner set forth in F. W. Woolworth Company,
90 NLRB 289 (1950), with interest thereon to be computed
in the manner prescribed in Florida Steel Corporation, 231
NLRB 716 (1977).2
CONCI.USIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(l) of the Act by: (a)
coercively interrogating employees concerning union and
other protected concerted activities; (b) threatening to
close its business if the employees selected the Union to
represent them; (c) threatening employees with loss of their
jobs if they desired representation by the Union; (d) threat-
ening to evict an employee from his living quarters because
of his activities on behalf of the Union; and (e) promising
paid vacations in order to discourage employees from se-
lecting the Union as their collective-bargaining representa-
tive.
4. Respondent violated Section 8(a)(3) and (1) of the
Act by discharging Ronald Moody and James Wise, and
decreasing the working hours of Richard Nannie and ulti-
mately discharging him, because of their union activities.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
-See. generally. Isi Plumbing & Hearing (o., 138 NI.RB 716 (1962).
974
TRUCK AND TRAILER SERVICE
6. Except as is set forth above, Respondent has not
otherwise violated the Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 3
The Respondent, Harold Jackson, a sole proprietor,
d/b/a Truck and Trailer Service, his agents, successors,
and assigns, shall:
I. Cease and desist from:
(a) Coercively interrogating employees concerning their
union activities.
(b) Threatening to close its business if its employees se-
lect Chauffeurs, Teamsters, Warehousemen and Helpers,
Local Union No. 135, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, to represent them.
(c) Threatening employees with loss of their jobs be-
cause of their union activities.
(d) Threatening employees with eviction from premises
rented by Respondent should they engage in activities on
behalf of the Union.
(e) Promising benefits to discourage employees from se-
lecting the Union as their collective-bargaining representa-
tive.
(f) Discharging or otherwise discriminating against em-
ployees because of their union activities.
(g) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed to
them in Section 7 of the Act.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Offer Richard Nannie, Ronald Moody, and James
Wise immediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and make them whole for their loss of
earnings in the manner set forth in the section of this Deci-
sion entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due.
(c) Post at its Muncie, Indiana, place of business copies
of the attached notice marked "Appendix." Copies of
said notice on forms provided by the Regional Director for
Region 25, after being duly signed by its authorized repre-
sentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily post-
ed. Reasonable steps shall be taken by Respondent to in-
sure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 25, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed as
to those allegations not specifically found to be violative of
the Act.
11 IS FURTHER ORDERED that Case 25-RC-613 be remand-
ed to the Regional Director with a direction to sustain the
challenges to the ballots of Clara Anderson, Gary McCall,
and Joseph Hall; and to open and count the ballots of
James Buchanan, Alfred Hite, James Wise. and Ronald
Moody; and thereafter to prepare and cause to be served
on the parties a revised tally of ballots, including therein
the count of said ballots, upon the basis of which he shall
then issue the appropriate certification.
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.
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,
4In the event that this 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 both sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that I violated the Act and I have been ordered
to post this notice.
I WILL NOT coercively interrogate employees con-
cerning union activities.
I WILL NOT threaten to close our business if our em-
ployees select Local 135, Teamsters, to represent them.
I WILL NOT threaten employees with loss of their jobs
should they select the Union to represent them.
I WILL NOT threaten to evict employees from prem-
ises owned by us in order to discourage their activities
on behalf of a union.
I WILL NOT promise to grant benefits to our employ-
ees in order to discourage membership in said Team-
sters Union and discourage our employees from se-
lecting said Union as their collective-bargaining
representative.
I WILL NOT in any other manner interfere with, re-
strain, or coerce my employees in the exercise of
rights guaranteed them by Section 7 of the Act.
I WILL NOT discharge or otherwise discriminate
against any employee because of that employees'
union sympathies.
I WILL offer full reinstatement to Richard Nannie.
Ronald Moody, and James Wise with backpay, plus
interest.
HAROLD JACKSON, A SOL.E PROPRIETOR. d/b/a TRUCK
AND TRAILER SERVICE
975