Allen Motor Express

National Labor Relations Board - Board Decisions

Jul 26, 1968

172 N.L.R.B. 1320 (N.L.R.B. 1968)

1320 DECISIONS OF NATIONAL
Interstate Equipment Co., Inc., Interstate Highway
Express , Inc., and Cletus G. Allen, Sole Proprie-
tor, d /b/a Allen Motor Express and Local 135, In-
ternational Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America
Interstate Equipment Co., Inc., Interstate Highway
Express , Inc., and Cletus G. Allen, Sole Proprie-
tor, d/b/a Allen Motor Express and William D.
Bundy
Interstate Equipment Co., Inc ., Interstate Highway
Express , Inc., and Cletus G . Allen, Sole Proprie-
tor, d /b/a Allen Motor Express and Frank Bugh
Interstate Equipment Co., Inc., Interstate Highway
Express , Inc., and Cletus G . Allen, Sole Proprie-
tor, d/b/a Allen Motor Express and William Bun-
dy. Cases 25-CA-2462, 25-CA-2510,
25-CA-2510-2, and 25-CA-2707
July 26, 1968
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On April 29, 1968, Trial Examiner Phil Saunders
issued his Decision in the above-entitled proceed-
ing, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices,
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
also, without making any specific findings, recom-
mended the dismissal of the complaint with regard
to a certain alleged 8(a)(5) violation contained
therein. Thereafter, the General Counsel filed ex-
ceptions to the Trial Examiner's Decision 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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and brief,
and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner 2 as herein modified.
' The General Counsel's exceptions are limited solely to the Trial Ex-
aminer 's action in dismissing the complaint with respect to the alleged
8(a)(5) violation contained therein.
LABOR RELATIONS BOARD
The record establishes, and the Trial Examiner
found, that the Union represented a majority of the,
Respondent's employees in an appropriate unit on
March 1 and 3, 1966, when it made its initial de-
mands for recognition and bargaining upon the
Respondent. The Respondent refused the Union's
proffer of signed authorization cards for verifica-
tion of signatures and made it clear that recognition
would only be granted after the Union proved its
majority through the medium of a Board-conducted
election. Thereafter, and continuing through April
9, 1966, when the Union failed to receive a majori-
ty of the votes cast in a Board-conducted election,
the Respondent interrogated its employees as to the
activities of the Union and their sympathies,
threatened reprisals for union adherence, and
discharged or laid off a number of employees
because of their union activities or membership.
Thus as more fully set forth in the Trial Examiner's
Decision, C. Allen, one of the Respondent's prin-
cipal officers, interrogated employees Eads, Hamil-
ton, and Bundy on separate occasions in regard to
their union sympathies and the substance of a
number of union meetings, and threatened them
with discharge, etc., should the Union be successful
in its organizational campaign. Additionally, as also
found by the Trial Examiner and again more fully
set forth in his Decision, the Respondent during the
period March 3, 1966, through April 9, 1966, im-
plemented its threats and discharged or laid off em-
ployees Shepherd, Hamilton , Bugh , and Bundy
because of their known membership in, and activi-
ties on behalf of, the Union.
The aforementioned conduct of the Respondent,
which the Trial Examiner found violative of Section
8(a)(1) and (3) of the Act, evidences not only a
complete rejection of the principles of collective
bargaining but a desire to gain time in which to dis-
sipate the Union's majority status. Such action
clearly constitutes a violation of Section 8(a)(5) of
the Act. Cf. Joy Silk Mills, Inc., 85 NLRB 1263,
enfd. 185 F.2d 732 (C.A.D.C.); Bernel Foam
Products Co., Inc., 146 NLRB 1277.
Contrary to the Trial Examiner, in view of the ex-
tensive violations of the Act committed by the
Respondent, both before and subsequent to the set-
tlement agreement (which was revoked by the Re-
gional Director prior to the issuance of the con-
solidated complaint herein), we are not convinced
that the Respondent's action in subsequently recog-
nizing and executing a 3-year contract with the
Union provides an adequate remedy for the 8(a)(5)
violation here disclosed or that there will not be a
' In the absence of exceptions , we adopt pro forma , the Trial Examiner's
8(a)(1), (3), and ( 4) findings , conclusions, and recommendations with
respect thereto.
172 NLRB No. 145
INTERSTATE EQUIPMENT CO., INC.
recurrence of such conduct in the future.3 Ac-
cordingly, we shall order the Respondent to cease
and desist from failing or refusing, upon request, to
bargain collectively in good faith with the Union
with respect to rates of pay, wages, hours of em-
ployment, or any other term or condition of em-
ployment.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent, In-
terstate Equipment Co., Inc., Interstate Highway
Express, Inc., and Cletus G. Allen, Sole Proprietor,
d/b/a Allen Motor Express, Bedford, Indiana, its of-
ficers, agents , successors, and assigns , shall take the
action set forth in the Trial Examiner's Recom-
mended Order, as herein modified:
1. Renumber paragraph 1(e) to read 1(f) and in-
sert a new paragraph I(e) to read as follows:
(e) Failing or refusing , upon request, to bar-
gain collectively in good faith with the Union
with respect to rates of pay, wages, hours of
employment, or any other term or condition of
employment in the bargaining unit hereinbe-
fore described as appropriate.
2. Amend the "Notice to All Employees"
by inserting an additional indented paragraph
to read as follows:
WE WILL NOT fail or refuse, upon request, to
bargain collectively in good faith with the
Union with respect to rates of pay, wages, and
hours of employment, or any other term or
condition of employment in the bargaining unit
hereinbefore described as appropriate.
'Southern Tours, Inc, 167 NLRB 363; United States Gypsum Company,
143 NLRB 1122, 1127 , N L R B v American National Insurance Co, 343
U.S. 395, 399, fn 4, N L.R B. v Mexia Textile Mills, Inc , 339 U S 563
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PHIL SAUNDERS, Trial Examiner: On March 8,
1966, Local 135, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Hel-
pers of America, herein the Union, filed an unfair
labor charge against Interstate Equipment Co., Inc.,
Interstate Highway Express, Inc., and Cletus G. Al-
len, Sole Proprietor, d/b/a Allen Motor Express,
herein the Respondents. This charge was amended
on March 10, 13, and April 28, 1966. On March 8,
1966, the Union also filed a petition with the
Board 's Regional Office requesting an election in
1321
the following unit of employees of Respondent:
All truck drivers, including company employee
drivers, owner drivers under Permanent lease
with the Employer, non-owner drivers who
drive for the Employer or for any one having a
Permanent lease with the Employer; excluding
all office clerical, foremen, dispatchers, guards,
and supervisors as defined in the Act.
In this petition the Union stated that recognition
had been requested on March 1, 1966, and had
been refused on or about March 2, 1966.
The parties then entered into an agreement for
consent election in the unit specified above, and
approved by the Board's Regional Director on
March 21, 1966. The election was held on April 9,
1966, and the Union failed to receive a majority.
On April 12, 1966, the Union filed objections to
employer conduct affecting the election.
On April 29, 1966, a complaint was issued
against Respondents in Case 25-CA-2462. The
original report on the objections was issued by the
Regional Director on June 3, 1966, and therein he
consolidated Case 25-RC-3173 and 25-CA-2462
for hearing purposes. On May 15, 1966, a charge
was filed against Respondents by William Bundy in
Case 25-CA-2510, and on May 23, 1966, a charge
was filed against Respondents in Case
25-CA-2510-2 by Frank Bugh. On June 30, 1966,
a consolidated complaint was issued in Cases
25-CA-2462, 2510, and 2510-2 and these cases
were consolidated with the objections to the elec-
tion in Case 25-RC-3173, and the entire matter
was set for a hearing on July 25, 1966. A hearing
on the above cases was held before me on July 25,
26, and 27, 1966, and on the afternoon of July 27,
1966, the parties entered into a proposed settle-
ment agreement whereby Respondents agreed to
recognize the Union as the bargaining representa-
tive for their employees in the unit described
heretofore, and whereb} Respondents agreed to
fully reinstate Frank Bugh, William Bundy, Roe
Hamilton, and Alvin Shepherd and pay them an
agreed-to amount of their computed lost wages.'
This proposed agreement was approved by the Re-
gional Director on July 29, 1966. Frank Bugh and
Alvin Shepherd refused reinstatement, but William
Bundy and Roe Hamilton made arrangements to
return to work, and Respondents began to make-
the agreed-to installment payments on the backpay.
Later on bargaining negotiation meetings then took
place between the parties, but on December 7,
1966, the Union filed charges against Respondents
alleging violation of Section 8(a)(1), (3), and (5)
of the Act (Case 25-CA-2671). The Union also
commenced a strike at Respondents' place of busi-
ness on or about December 10, 1966, and this
strike continued until December 27, 1966, at which
' The settlement agreement also stated that the Respondents would post
a notice , and included in the notice were prohibitions against interrogating
and threatening employees because of their union activities . See Respon-
dents' Exhibit 8
354-126 O-LT - 73 - pt. 2 - 12
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time the Union and the Respondents reached tenta-
tive agreement upon a new contract. On December
28, 1966, the Union withdrew its charge in Case
25-CA-2671, and the contract between the parties
was actually signed on January 9, 1967, retroactive
to January 1, 1967.
On January 19, 1967, William Bundy filed a
charge against Respondent (Interstate Equipment
Co., Inc.) in Case 25-CA-2707 and an amended
charge was filed by Bundy on March 9 and April 4,
1967. On April 11, 1967, the Regional Director
withdrew his approval of the settlement agreement,
as aforementioned, because of Respondents' failure
to comply with all of the provisions thereof, and
consolidated Cases 25-CA-2462, 2510, 2510-2,
and 2707 for the purpose of further hearings and
also issued a complaint in Case 25-CA-2707. The
hearing was held on these consolidated cases in
December 1967. At both hearings before me all
parties were represented, and were given full op-
portunity to examine and cross-examine witnesses,
to introduce evidence, and to argue orally. The
General Counsel, the Union, and the Respondents
all filed briefs. The issues litigated were whether or
not the Respondents violated Section 8(a)(1), (3),
(4), and (5) of the National Labor Relations Act,
as amended.
Upon the entire record and from. my observation
and demeanor of the witnesses, I make the follow-
ing:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENTS
of materials in interstate commerce between dif-
ferent States of the United States.
Respondent Allen is, and has been at all times
material herein, an individual proprietor doing busi-
ness under the trade name and style of Allen Motor
Express. Allen is now, and has been at all times
material herein, an individual with place of business
at 814 Norton Avenue, Bedford, Indiana. Allen is
engaged in the business of interstate transportation
of commodities by motor vehicle. During the past
year, Respondent Allen, in the course and conduct
of his trucking operations within the State of Indi-
ana, derived gross income in excess of $50,000
from said operations, which were performed for
various enterprises, including U.S. Gypsum Com-
pany, National Gypsum Company, Indiana Steel
Corporation, and Kaiser Aluminum Corporation,
each of which annually manufactured, sold, and
shipped finished products valued in excess of
$50,000 from places of business in Indiana directly
to points outside the State of Indiana.
The Respondents are, and at all times material
herein have been, affiliated businesses with com-
mon officers, ownership, directors, and operators
and constitute a single integrated business enter-
prise; the said directors and operators formulate
and administer a common labor policy for the
aforenamed Companies, affecting employees of
said Companies.2
Respondents are now, and have been at all times
material herein, each individually and all collective-
ly, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and I
so find.
Respondent Interstate Equipment Co., Inc., is,
and has been at all times material herein, a cor-
poration duly organized under, and existing by vir-
tue of, the laws of the State of Indiana. Interstate
Equipment is now, and has been at all times materi-
al herein, a corporation with place of business at
814 Norton Avenue, Bedford, Indiana, and is en-
gaged in the business of interstate transportation of
commodities by motor vehicle. During the past
year, Respondent Equipment, in the course and
conduct of its business operations, derived revenues
valued in excess of $50,000 for and from the trans-
portation of materials in interstate commerce
between different States of the United States.
Respondent Interstate Highway Express, Inc., is
an Indiana corporation with its place of business at
814 Norton Avenue, Bedford, Indiana. It is engaged
in the business of interstate transportation of com-
modities by motor vehicle. During the past year,
Respondent Express, in the course and conduct of
its business operations, derived revenues valued in
excess of $50,000 for and from the transportation
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material
herein, a labor organization within the meaning of
Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The original complaint dated April 29, 1966, al-
leges the Respondents interrogated and threatened
employees because of their union activities, and
that the Respondents discriminatorily discharged
Alvin Shepherd on March 9, 1966, and Roe Hamil-
ton on March 14, 1966. This complaint further al-
leges that on or about February 22, 1966, a majori-
ty of employees in the aforementioned unit
designated and selected the Union as their
representative for collective bargaining, and that
commencing on or about March 1, 1966, the
Respondents refused to bargain with the Union.
The consolidated complaint dated June 30, 1966,
alleges that at various times in March 1966 the
'The Respondents admit that Donald Allen, Cletus Allen, and Marvin
Allen are directors, officers, owners, and operators of Respondents, and
that they are supervisors within the meaning of the Act
INTERSTATE EQUIPMENT CO., INC. 1323
Respondents interrogated and threatened em-
ployees with discharge because of their union ac-
tivity. It is further alleged in this complaint that the
Respondents discriminatorily laid off William
Bundy on March 18, 1966, and Frank Bugh on
April 8, 1966.
The complaint dated April 11, 1967, alleges that
owner Cletus Allen threatened employees with
physical harm on February 13, 1967, that on or
about August 1, 1966, the Respondents refused to
dispatch Roe Hamilton in his GMC truck thus com-
pelling him to buy a newer truck, that in mid-Sep-
tember 1966 Respondents reduced the number of
loads assigned to Roe Hamilton and assigned him to
less desirable loads, and that on or about November
20, 1966, Respondents constructively discharged
Hamilton by continually assigning him fewer and
less desirable loads-thereby forcing Hamilton to
quit and to lose the ownership of his new truck.
This complaint also alleges that since on or about
August 1, 1966, the Respondents reduced the
number of loads assigned to William Bundy and as-
signed him less remunerative and less desirable
runs. It is further alleged that since December 27,
1966, the Respondents reduced Bundy's place on
the seniority list and continued to dispatch drivers
with less seniority, that on or about February 13,
1967, Cletus Allen imposed more onerous working
conditions on Bundy than those imposed on other
drivers (making Bundy wash his truck on his own
time and at his own expense), and that on or about
February 14, 1967, Respondents assigned older and
less roadworthy equipment to Bundy.3 In ac-
cordance with the above allegations, the General
Counsel maintains that Bundy was also discrimina-
torily discharged. The main issues for my con-
sideration in this proceeding are adequately
framed by the events, pleadings, and allegations
referred to above.
In January 1966 the Union started its organiza-
tion drive among the over-the-road drivers of the
Respondents. Union Business Representative
Joseph Harris gave driver Roe Hamilton authoriza-
tion cards, and in January and February 1966,
Hamilton secured the signatures of nine drivers and
Russell Case signed his card on March 9, 1966. The
authorization card signed by Case was picked up by
Harris, and the other nine were mailed into the
Union's office. On February 26 and on March 5,
1966, the Union held meetings with the drivers.
This record shows that by March 1, 1966, the
Union had secured authorization cards from a
majority (9) of the 13 drivers in the appropriate
bargaining unit. On this date, Union Representa-
tives Harris, Cantillion, and Roberts made the first
demand for recognition on the Respondents. Can-
tillion informed Cletus Allen that the Union had a
majority of the drivers signed up and attempted to
show the authorization cards to Cletus Allen. Allen
then told Cantillion that his son, Don Allen, ran the
business and he would have to talk to him. The
union agents came back later in the day, but again
were informed that Don Allen had not yet returned
to the terminal. On or about March 3, 1966, Union
Representatives Harris and Roberts went to the
Respondents' office or terminal and on this occa-
sion talked with owners Donald, Marvin, and Cletus
Allen. Harris offered Don Allen the nine union
authorization cards and informed him that the
cards represented a majority of the drivers and Har-
ris also tried to get Respondents to sign an applica-
tion paper recognizing the Union. Don Allen then
told Harris he was not a handwriting expert and,
therefore, he could not determine whether or not
the drivers had signed the cards. Harris mentioned
to Allen that he could take the cards to his attorney
or anyone else to check the signatures. Don Allen
replied, "No-go in and have your ... dam elec-
tion. File your petition."
On March 17, 1966, Attorney Edward Fillen-
warth, Sr., met with owners Donald and Cletus Al-
len, and others in Respondents' office, and in-
dicated the three alternate routes the Respondents
could take in the matter. The Respondents then
agreed to a consent election. At this time, the
Union represented a majority of 10 (the same 9,
plus Case who had signed a union card on March 9)
driver employees out of 15 employees-the same
13 plus Jack Mitchell and Howard Schuler.
Driver Merle Eads testified that on or about
March 7, 1966-after he had signed an authoriza-
tion card (February 22, 1966), and after he had at-
tended a union meeting on February 26, 1966-
Don Allen asked him if he had signed a card, and
then told Eads that if he joined the Union he would
be without a job in 30 days. Eads further testified
that Don Allen also mentioned to him the drivers
who had attended the union meeting.
Driver Alvin Shepherd testified that after signing
his authorization card on February 19, 1966, and
after attending the union meeting on February 26,
1966, Cletus and Don Allen talked to him on or
about February 28, 1966. On this occasion Cletus
Allen asked, "What about this meeting you guys
had the other day or what happened at your Union
meeting Saturday?" Shepherd replied, "Oh, just a
bunch of guys got together and talked over the pos-
sibility of getting organized with the Teamsters."
Cletus Allen then inquired as to what the drivers
wanted, and further asked, "Who is leading this,
Roe [Hamilton] or Frank [Bugh]." Shepherd
testified that on this occasion Don Allen also asked
him about the same questions.
Roe Hamilton testified that on February 28,
1966, 2 days following the Union's first meeting
with the drivers, Don Allen asked him, "Who's the
' At the same time this complaint was issued , the Regional Director filed
a notice of withdrawal and vacation of settlement agreement , as afore-
stated . Subsequently , Case 25-CA-2707 was consolidated with the cases
which had been settled on July 27, 1966, and the December 1967 hearing
was then conducted on the consolidated complaints
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
big guys?" Hamilton replied, "What are you talking
about?" Don Allen answered, "You know, the
Union." After Hamilton informed him he did not
know, Don Allen stated, "You know your job is in
jeopardy." Hamilton replied, "I figured it was." On
March 7, 1966, Hamilton had another conversation
with Don Allen, and on this occasion Allen asked
Hamilton if he or Frank Bugh were the "main
guys," and again told him, "You know your job is
in jeopardy."
William Bundy testified that after he had signed
his card and after attending a union meeting-he
talked with Don Allen in early March 1966 relative
to his nonworking status when other employees
were driving. Allen told Bundy that business was
slow and Bundy then replied, "Don, you're a dam
liar. I know you hired another guy to put in my
trucks." Later the same day, in another conversa-
tion with Allen as to why Bundy was not working,
Don Allen asked Bundy if he attended the union
meeting in Orleans, Indiana. Bundy then informed
Allen he had attended this meeting for the purpose
of getting a withdrawal card. Allen asked Bundy
about the drivers' complaints and Bundy replied the
main complaint was the loading of trailers. Allen
then inquired, "Don't you think we can work this
out someway without the Union?" Allen also asked
Bundy if he had signed a card and if he had at-
tended the union meetings. Allen next asked Bundy
if he wanted a load and was then assigned one for
the next day. In this conversation Don Allen told
Bundy he had heard that Bundy and Shepherd were
the instigators for the Union and inquired who the
"ringleaders" were. Later in the day when Bundy
had gone to U.S. Gypsum Company, at Shoals, In-
diana, to get his assigned loads,' Don Allen talked
to Bundy again about the Union. Allen told Bundy
what benefits Respondents could give the drivers if
the Union did not get in, that he could not pay the
benefits required if the Union got in, and stated
that if the Union came in that he would have to go
out of business. Bundy testified that during the
period from March 3 to 18, 1966, Don Allen con-
tinually asked him about the Union, inquired how
Bundy would vote if an election was held, con-
stantly inquired who the ringleaders were, and in
doing so referred to Bugh, Hamilton, and Shepherd,
and also told Bundy that the Union would "break
him," that he would have to "close up" and "go out
of business" because he could not afford the Union.
Bundy further testified that a few days prior to
March 3, 1966, he was in the Respondents' office
when union matters were being discussed between
some of the drivers and the three Aliens. Bundy
stated that as he walked in Cletus Allen jumped out
of the chair he was sitting in and waving his arms
said, "I'm going to mop up the whole damn bunch
of you."
Frank Bugh gave testimony to the effect that he
was threatened by Cletus Allen. Bugh had attended
a union meeting in March 1966 and so informed
the Allens, and had not departed with his load at
the time specified . When he returned from delivery
an argument resulted and Cletus Allen told Bugh,
"I'll knock you through that wall." On April 9,
1966, when Bugh was the union observer at the
election , Cletus Allen stated , " I don't like the looks
of your face and some day I'm going to change
them."
Alvin Shepherd began working for Respondents
as a truckdriver in December 1965 and worked as
such until March 9, 1966 . He pulled both intrastate
and interstate loads . Shepherd signed his union
card on February 19, 1966 , and then gave it to Roe
Hamilton . He attended the union meeting on
February 26 , 1966, and also attended the second
union meeting on March 5, 1966 . Both Cletus and
Donald Allen learned that Shepherd was in the
Union when on February 28, 1966 , they questioned
him in detail about the first union meeting, and
Shepherd freely admitted his involvement , as afore-
stated.
On the evening of March 8, 1966, Shepherd
returned from taking a load to LaGrange, Ken-
tucky, and called the Respondents ' terminal, as he
usually did, and talked to Cletus Allen. Since
Shepherd had seniority , he asked Cletus Allen for a
load. Allen said that they would call him at home
when a load was ready . The next morning Cletus
Allen called Shepherd and asked him to drop his
trailer, and to bring his tractor or truck to Huron
Hill, Indiana, nearby, to help driver Wendell
Blevins, whose truck had broken down . Shepherd
then went to Huron Hill, where he located Wendell
Blevins with a broken axle in his truck , and the
trailer in the mud . Blevins' trailer was loaded with
44,000 pounds of gypsum . Shepherd decided that
they should pull out Blevins ' broken tractor from
under his trailer , and replace it with Shepherd's
tractor, and then pull the load away with
Shepherd 's tractor . The two men tried to let down
the dollies , but apparently the ground was too soft
to hold the dolly wheels . The men put rocks on the
ground , and tamped the ground where the dolly
wheels were . Shepherd then attempted to pull
Blevins' broken tractor with Shepherd 's tractor, but
without Blevins' tractor support , Blevins' trailer
would not hold up and started to sink . With addi-
tional efforts they finally concluded that Blevins'
trailer would stay up , and Shepherd then pulled
Blevins' tractor out and backed his tractor under
the trailer . Before doing so, Shepherd hooked up
the air lines and set the brakes. However, when
Shepherd backed under the trailer his tractor did
not get completely under the trailer and the trailer
slid off in the soft ground , and while tilted about 50
' U S Gypsum Company was one of the Respondents ' main customers at
this time and they generally hauled several loads a day from their plant at
Shoals, Indiana
INTERSTATE EQUIPMENT CO., INC.
to 60 bags of gypsum fell off the trailer and about
half of them broke open. Blevins called the office
and reported what had happened, and within a
short time Cletus and Don Allen arrived at the
scene . Shepherd testified that Cletus Allen jumped
us and said, "That's it. Get your stuff out of the
truck and go on home." Shepherd asked, "What do
you mean?" Cletus Allen replied, "That's all. We
don't need you around here any more-Get your
stuff and go on home. Let the damn Union get you
a job." Shepherd then went home and later picked
up his final paycheck.
On cross-examination Shepherd testified that on
his first trip for the Respondents he ran into snow,
and while crossing a bridge he had to swerve his
truck to the right in order to avoid hitting an on-
coming car and in so doing damaged the bridge rail.
Shepherd stated the city police investigated this ac-
cident, but no charges were ever filed. Shepherd
testified that in the second week of driving for the
Respondents a car struck his truck in Indianapolis,
and this accident was investigated by the police, but
no charges were filed. Shepherd stated that a third
accident happened while he was driving in Mont-
gomery, Indiana. While turning, his rear trailer
wheel hit the fender of a pickup and the taillight on
the pickup was broken. Shepherd then arranged to
have the taillight fixed, and so informed the
Respondents of this accident. No charges were
filed. Shepherd also testified that while returning
from Munster, Indiana, the rope from his tarp
became entangled on the drive shaft, and as a result
the tarp was damaged and the air lines were jerked
loose from the trailer. Shepherd stated that none of
the above accidents were chargeable to him except
"possibly" the one in Montgomery, Indiana.
The Respondents introduced evidence through
Wendell Blevins relating to the incident involving
himself and Shepherd on March 9, 1966, as afore-
stated. Blevins testified that when Shepherd backed
the truck under his trailer he backed "pretty hard,"
and that Shepherd did not look to see if the tractor
and trailer were hooked up before cranking up the
dollies . Blevins testified that when he called the of-
fice about the mishap-one of the Allens told him,
"Well, when I get down there he's torn up his last
thing. He's fired." Blevins stated that when the two
Aliens arrived at the scene, Cletus Allen informed
Shepherd that "he was done," but denied that
Cletus Allen told Shepherd to have the Union get
him a job. Don Allen also testified about this in-
cident, and stated he informed Blevins over the
telephone that he was going to fire Shepherd when
he got there and also told Blevins, "he [Shepherd]
done tore up the last thing for me and that was it. I
got tired of him." Don Allen further stated that
Shepherd had accidents off and on all the time he
was working for the Respondents, and mentioned in
his own testimony the four separate accidents
° General Counsel's Exhibits 6-A and 6-B. Hamilton owned his tractor
and then leased same to the Respondents, as several other drivers did
1325
previously referred to herein (the bridge, Indi-
anapolis, Montogomery, and Munster). Don Allen
then testified that Shepherd was discharged for
damaging and destroying property.
Roe Hamilton , for purposes here, worked for the
Respondents between January 1965 to March 14,
1966. He was employed as an over-the-road driver
under leasing contracts with the Respondents.5 As
pointed out, Hamilton was very active in contacting
the Union and securing signatures on authorization
cards, and he also attended the union meetings. On
or about March 1, 1966, Hamilton informed Don
Allen that he was going to sell his truck or tractor
to Roy Parker. Hamilton also reminded Don Allen
that he was not selling his job, and that he was
going to purchase another tractor. This arrange-
ment was "okay" with Don Allen. On March 4,
1966, Parker paid Hamilton $3,000 for his old
truck. On March 10, 1966, Hamilton purchased a
newer 1959 GMC diesel truck. On March 14, 1966,
Hamilton picked up his GMC tractor, drove it to
the Respondents' terminals and informed Don Allen
that he was ready to haul. Allen then told Hamil-
ton, "I'm not leasing," and further stated that
Hamilton had sold his job when he sold his old
truck to Roy Parker.' Hamilton testified that after
the Respondents refused to put him back to work-
he observed two new employees hauling for the
Respondents-Jack Atterbury and Jim Gill.
Don Allen denied he had any conversation with
Hamilton before selling his truck to Parker, but
stated that afterwards, Hamilton informed him that
in selling his truck he did not sell his job. Don Allen
testified he did not lease Hamilton's newer truck on
March 14, 1966, because his hauling business was
down and he had three of his own trucks sitting
around without any loads to haul.
Frank Bugh worked as a truckdriver for the Re-
spondents, on and off, from 1959 until April 1966.
Bugh signed his authorization card on January
21, 1966, and attended the February 26, 1966,
union meeting , and also the second union meeting
on March 5, 1966. Bugh was the Union's observer
at the Board election on April 9, 1966. Bugh
testified that prior to March 1966, he was
dispatched with loads on the basis of "first-in-first-
out," but in late March 1966 he noticed a change
in this practice, and thereafter if he did not call the
terminal , he would not be assigned a load. Bugh
also stated that between April 9 and 15, 1966, he
was not assigned any loads and on April 15, 1966,
he contacted Don Allen and inquired as to why he
was not working. Bugh testified that Don Allen in-
formed him that he did not think he wanted to
work, and Bugh then explained to Allen his specific
and numerous telephone calls he had made asking
for loads. Don Allen then told Bugh that he could
either hire seven new employees or four new ones,
and that he had seven votes, but should have had
On March 24, 1966, the Respondents executed a 1-year lease with Roy
Parker General Counsel's Exhibit 4
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one more.' Allen also told Bugh, "You knew about
this thing. Why didn't you come and tell us?" In
this conversation, Don Allen further told Bugh that
the Respondents had not made up their minds
about him. A few days later Bugh was given his
check.
Don Allen testified that Bugh had not called the
office since April 9, 1966, and the next contact he
had with him was about a week later at the Gypsum
plant when Bugh turned in his logs, bills, and the
keys for the truck. Allen stated that he did not at
any time lay off Bugh , that Bugh never asked if he
could have the week off from April 9 to 15, 1966.
William Bundy, for purposes here, worked for
Respondents as a truckdriver between December 1,
1965, to March 18, 1966. Bundy testified that when
he was hired, Don Allen promised him more work
than he had been getting at Mitchell Transport
Company, his former employer, that he would be in
the top 10 among the drivers, and although work
was slow in January and February of each year,
business would thereafter pick up. Bundy stated
that when he started hauling for the Respondents,
work slowed down after Christmas 1965, and then
began to pick up considerably by March 1966.
Bundy explained that when he returned from mak-
ing a delivery he would either go to the terminal or
call in . Bundy further testified that after the middle
of February 1966, he had observed employee Jim
Lee driving the truck he usually drove, that Lee
had been hired in his place, that in this general
period of time he called the terminal two or three
times a week for loads, that after informing Don
Allen he had attended the union meeting to get his
withdrawal card-he was then assigned the best
loads for a 10-day period, that he had not driven a
truck for the Respondents since March 18, 1966,
and that on or about March 23, 1966, Don Allen
told him, "I know which side of the fence you're
on," and then further stated, "You were seen at the
Union Hall Saturday." When Bundy asked how he
knew-Don Allen replied, "Word gets back to me.
Everything gets back to me." Bundy also related
that on or about April 13, 1966, he called Don
Allen for a load and on this occasion Allen told
him, "I don't think you want to work. You're
nothing but an agitator."
Don Allen stated that when Bundy went to work
for him he told him that his business was seasonal,
that from March 3 to 18, 1966, he displayed no
favoritism towards Bundy, that other drivers drew
comparable wages, that Bundy owned a farm with
cattle on it, and the chores in connection therewith
"intermingled" with his driving and that at the Gyp-
sum plant Bundy objected to loading his truck.
Postsettlement Conduct
The events which relate directly to Case
25-CA-2707 began almost immediately upon the
approval of the settlement agreement by the Re-
gional Director on July 29, 1966. William Bundy
sent a telegram to the Respondents stating that he
was available for work on August 1, 1966, and went
back to work for the Respondents as an over-the-
road truckdriver on August 4 or 5, 1966. The last
load Bundy hauled for the Respondents was on July
7, 1967. Bundy testified that after returning he very
rarely worked a 5-day week-usually 2 or 3 days-
and in many weeks did not get any loads to haul
while other drivers were working 5, 6, and 7 days a
week. Bundy related that outside of a 10-day
period, he was in contact daily with the Respon-
dents-either by phone or in person." He stated
that Don Allen knew where he lived because Allen
came out to his home, and Bundy had a telephone
at this address. When Bundy moved to a
roominghouse for a short time , he gave Allen a
telephone number at a local filling station in
Mitchell, Indiana , where he could be reached.'
Initially, when Bundy returned to his job in Au-
gust 1966, he and Don Allen had a discussion cen-
tered around whether or not Bundy was still driving
for Mitchell Transport Company. Bundy testified
that Allen informed him of all the benefits and
work Mitchell Transport Company had, and also
told him, "You're a lot better off over there than
you are here," and then went on and stated, "I am
going to give you back to them. They don't want
you over here." Bundy testified that on August 1,
1966, he signed a quit statement with Mitchell
Transport with the condition that he would con-
tinue to drive for Mitchell as an extra driver if they
needed him. Bundy stated that Mitchell Transport
assigned him loads to haul during the first part of
August 1966, because the Respondents only used
him two or three times during this period, but when
he received complaints to the effect he was still
working for Mitchell-he then quit hauling for
Mitchell Transport. Bundy testified that in the fol-
lowing 2-week period, the Respondents gave him
no work to do so he went back to Mitchell Trans-
port and hauled additional loads for them up until
September 1966 when he finally and completely
quit working for Mitchell Transport. Bundy also re-
lated that before hauling anything for Mitchell
Transport he would first call the Respondents to
find out if they had any loads, and on one occasion
in August 1966 both Mitchell and Respondents had
loads for him on the same day and he took the
Respondents' haul.
On January 9, 1967, Bundy filed a grievance ask-
ing that a seniority list be posted, and on the same
date filed another grievance complaining that
another driver had been given his load. The third
grievance Bundy filed onJanuary 9,1967, asked that
he be paid the wages provided for in the contract
between the parties, as aforestated. On January
11, 1967, Bundy filed a grievance concerning the
' On April 9, 1966 , the Union lost the election seven votes to four
" See General Counsel 's Exhibits 4-A through 4-1
" Mitchell, Indiana, is a short distance in miles from the Respondents'
main terminal in Bedford , Indiana
INTERSTATE EQUIPMENT CO., INC.
I
incorrect posting of a seniority list. Also in January
1967 Bundy filed four additional grievances. In
such he complained that the Respondents had not
paid him for loading time at the U.S. Gypsum plant,
complained that he had not been assigned any loads
for an entire week after getting a doctor's release,
and in another grievance, filed during this period,
complained that he was not paid for his work. In
February 1967, Bundy filed three grievances for
work done and not paid for-mainly services at the
terminal-and also complained in another
grievance that he was always assigned to the oldest
truck.10
Bundy testified that upon his return to work in
August 1966 he was first assigned truck 20. He
stated this truck was not safe to be on the road as
the steering was bad and it needed "king pins." He
testified that the pins were not replaced until about
the first part of 1967. Bundy further related that in
late December 1966 he was assigned truck 39 for a
short time and on two occasions he waited without
pay for this truck to be repaired. Bundy was then
assigned truck 33, but, in February or March 1967,
truck 20 was returned to him and he also drove
truck 18. Bundy stated there were still a lot of
things wrong with truck 20 and he complained
about it, and that he had minor breakdowns when
driving truck 18. On one occasion Bundy had a
breakdown at midnight with truck 18 (hose fitting
went bad), and called the Respondents about it.
Bundy stated he waited until about 4 a.m. and then
caught a ride back to town, but Respondents gave
him a written reprimand for leaving the truck.
Bundy testified as to the dispatching of drivers
from the U.S. Gypsum plant after his return in Au-
gust 1966 and stated the Respondents used any
system they decided on but after January 1967 a
sign-in sign-out sheet was provided." He further re-
lated there were days when only his name appeared
on this sheet, but at the same time all the other
truckdrivers were given loads and he was not as-
signed, and that frequently from August 1966 to
July 1967 he observed employees with less seniority
driving when he was not working. Bundy stated he
complained to the Allens about this matter on
several occasions, and that in January 1967 it was
agreed that drivers would be dispatched on a first-
in first-out basis.
The General Counsel also introduced testimony
through Bundy to the effect that shortly after he
returned to work in August 1966, Cletus Allen told
him, "Out there's your damn truck; go look it over
and see if it's good enough for you," and when
Bundy went out to inspect the truck, Cletus Allen
shoved him and then stated, "... can't you un-
derstand we don't want you over here." Bundy
further testified that in February 1967 Don Allen
stated, "... but I can't understand why you insist
10 Grievances filed by Bundy are included in General Counsel's Exhibits
6-A through 6-L
1327
on working for me when you know I don't want you
over here. You're nothing but a damn trouble-
maker." Bundy then went on to relate that many
times other employees drove his truck when it was
supposed to be in the garage and when he was at
home, and that he was assigned loads that required
2 or 3 hours to unload-bag loads to construction
jobs, and drivers were not paid for unloading time.
The manager for U.S. Gypsum Company plant at
Shoals, Indiana, John Burns, testified that in
February 1967 he had noticed Bundy hauling a
load out of the Shoals Gypsum plant untarped, and
on the next day the same thing happened-so he
told Bundy he did not want any more loads going
out without a tarp on them, and during this time
Bundy was complaining about having to cover his
loads. Burns stated that in May 1967 his plant
received a complaint about Bundy from a customer
(Cox and Hunter), and Allen was then informed
they did not want Bundy to haul any more loads to
this customer. Burns further testified that on July
14, 1967, Bundy was supposed to deliver a load to
another customer, that the load was left standing
and as a result the customer complained because it
was not delivered until July 17. Burns related that
he also had knowledge of a fight on plant premises
between Respondents' employees Bundy and Joe
Padgett in January 1967. Burns wrote a letter to
Allen stating that if such a thing happened among
his employees they would be discharged, and that
he would not tolerate this kind of conduct on his
premises . Burns went on to testify that the business
at U.S. Gypsum is extremely seasonal, that in sup-
plying construction jobs work slows down in the
wintertime, and stated that in July 1967, U.S. Gyp-
sum decided that Allen was not dependable and
they then terminated their trucking relationships
with the Respondents.
M. W. Abram, plant manager for National Gyp-
sum Company, testified that the Respondents have
been their truckers for 3 years, and that they also
received several complaints about Bundy. Abram
told Don Allen that he did not want Bundy because
he was uncooperative and discourteous to
customers and his plant was losing business. Abram
went on to testify that truckdrivers are most impor-
tant to his plant and their customers, that his busi-
ness is seasonal to a great extent, and stated his
plant was still using the Respondents as their
truckers and their service was steadily improving.
The Respondents produced testimony through
former employee Max Bowman to the effect that he
had encountered no difficulty while driving truck
18, that truck 20 was one of the best trucks the
Respondents had, and that he washed his truck at
his own expense as it was Respondents' policy not
to pay drivers for washing the truck they were driv-
ing.
" Bundy pulled the greatest share of his loads out of the U S Gypsum
plant
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Joseph Padgett gave testimony to the effect that
on certain occasions-when Don Allen was gone-
he would dispatch Bundy with loads from the U.S.
Gypsum plant, that Bundy was treated no dif-
ferently than other drivers, that after August 1966
they had to tarp and load his truck, that Bundy
parked his truck wherever he felt like it, that he
would not contact anyone, and that they had to
check Bundy's truck thoroughly. Padgett also gave
testimony as to the scuffle between him and Bundy
and stated this incident grew out of the fact that he
insisted Bundy sign the sign-in sheet.
James Burks testified that Bundy was treated the
same as other drivers, that he told Don Allen he did
not think it fair for them to tarp Bundy's trailer and
not the others, and that he washed his truck and
was never reimbursed for it. Both Burks and
Padgett stated that Roe Hamilton was dispatched
and treated the same as all the other drivers.
Mechanic Raymond Tincher testified that Bundy
made constant complaints about his truck, that
Bundy never washed his truck, and stated that in
April or May 1967 Bundy compiled a two-page
document dealing with his complaints on truck 20.
Don Allen testified there was no difference in the
treatment Bundy received after his return in August
1966 and then went on to state the following: The
Respondents were supposed to call Bundy at
Gaines filling station in Mitchell, Indiana-some 15
miles from Bedford-and when so calling never
knew for sure whether or not Bundy received the
message, and that there were times when Bundy did
not come in for his load; that truck 18 was a good
truck, truck 20 was the fastest truck in southern In-
diana, and truck 33 was in good shape; that he did
not screen the loads for the various drivers, that it
is not his policy to pay drivers for washing the truck
they drive, and that he did not recall if any discipli-
nary action was taken against Bundy for leaving his
truck after his breakdown near Bloomington, Indi-
ana, as aforestated. Don Allen stated that Bundy
left the Respondents in July 1967 and he thought
Bundy voluntarily quit as he did not show up for a
load. Four or five days later-under the terms of
the collective-bargaining agreement entered into
between the parties on January 9, 1967-the
Respondents sent Bundy a quit notice.
Hamilton
When Hamilton returned in August 1966 he
again worked under a 1-year lease agreement with
the Respondents as an owner-operator. The written
lease specified the dates from August 5, 1966, to
August 5, 1967. On or about this time Hamilton
had purchased a 1966 Dodge tractor. Hamilton
testified that he would contact the terminal for
" In November 1966 the parties held several negotiation meetings, and I
will later herein set forth details relative to same
13 Respondents ' Exhibit 2
loads and on occasions the Respondents would call
him, and that he worked a full schedule from the
time he went back in August 1966, up until
November 1, 1966. At this time Hamilton informed
Don Allen there was a slackening in his load assign-
ments, and testified that such occurred right after
he (Hamilton) started attending the negotiating
meetings between the Union and the Company.12
Hamilton further informed Don Allen that he was
the third man on the seniority list, and that younger
drivers in seniority (eight of them) were being as-
signed loads ahead of him. Hamilton asked Don
Allen several times for more work because he was
getting behind on his truck payments, and he then
informed Allen he was going to quit as he was not
receiving enough work to make his truck payment.
Hamilton pulled his last load for the Respondents
on November 24, 1966, and lost his truck a few
months later as he was two installments behind on
his payments. On November 26, 1966, Hamilton
signed a document wherein he withdrew the lease
and his employment with Respondents.13
Don Allen stated that at the time of the settle-
ment agreement , the Respondents and Hamilton
had an oral understanding-later included in the
settlement agreement-wherein Allen advanced
Hamilton $600 for the down payment of a late
model truck, and Hamilton then went back to work
after getting his Dodge tractor pursuant to the
above. Don Allen testified that in the latter part of
November 1966 Hamilton voluntarily quit, and that
he did not penalize him for participating in negotia-
tion meetings.
On or about August 14, 1966, the Union held a
meeting with employees wherein the main topic for
discussion was the loading time without pay at U.S.
and National Gypsum plants. Vacations and health
and welfare proposals were also discussed. Around
the middle of September 1966 a proposed contract
was prepared by the Union and sent to the Respon-
dents. During the first week in November 1966 the
parties held their first negotiating session and mu-
tual discussions took place. The Respondent stated
they could not accept the Union's proposal wherein
certain drivers would receive increased percentage
on their loads, pursuant to a Special Iron and Steel
Addendum to the National Master Freight Agree-
ment.14 The Respondents then countered with a
contract proposal similar to the one the Union has
with Moorman Trucking Company-this is a small
trucking concern in the locality of Bloomington, In-
diana . The parties also discussed health and welfare
provisions, the operations of the Respondents, and
some of the complaints to the effect that Bundy,
Hamilton, and Eads were not getting their share of
the loads. The parties again met on November 8,
1966, and discussed the various proposals before
14 The National Master Freight Agreement is a National Agreement the
Teamsters International and Teamsters Locals have with various trucking
companies throughout the United States
INTERSTATE EQUIPMENT CO., INC. 1329
them. The Respondents would not agree to the
Union's checkoff provision nor to the proposals on
health and welfare. At the meeting on November
18, 1966, the parties talked about seniority
dispatch, and Cletus Allen stated he would agree to
a seniority dispatch if he could tell the drivers
where they were going and when they were going.
Union Rpresentative Harris testified that at the
meeting on November 22, 1966, the parties were
deadlocked on proposals pertaining to the two-
check system, checkoff, seniority, seniority
dispatch, and insurance for health and welfare.15
Harris stated it was agreed the Respondents would
bring in an insurance plan and the Union would
consider it. Harris went on to state that the Union
made no progress over the complaints by Bundy,
Hamilton, and Eads that they were not working or
getting their share of loads, that the Union then
filed charges-later withdrawn, as aforestated, and
the Union then struck the Respondents starting on
December 10, 1966. On December 22 or 23, 1966,
the parties reached a tentative understanding or
agreement as to a contract the Union would be
willing to take back to its members for ratification.
The members then ratified the agreement, and the
strike was terminated on December 27, 1966.
Harris stated that beginning in January 1967 he
started receiving grievances under the terms of the
contract signed by the parties on January 9 and ef-
fective January 1, 1967.16 Bundy's early grievance
pertained to a seniority list, and Harris testified he
then requested such a list from Don Allen and in a
few days received the same and as this grievance
was withdrawn. Shortly thereafter, Bundy filed
another grievance dealing with the seniority list,
and Harris stated the Respondents then issued
another list and this grievance was also withdrawn.
Harris stated there are 12 to 13 grievances cur-
rently pending.
On February 4, 1967, the parties held a meeting
for the sole purpose of attempting to set up a
method of dispatching the drivers from the U.S.
and National Gypsum plants. This meeting was ar-
ranged according to a provision in the contract that
such a system would be worked out. Harris testified
the parties were unable to agree on any system, but
it was agreed that Harris would visit the U.S. Gyp-
sum plant at Shoals to study the situation and make
recommendations. Pursuant to the above, Harris
visited the U.S. Gypsum plant on February 20 and
on March 10, 1967. Harris stated he then reported
that the Respondents should have an employee at
U.S. Gypsum to load trailers and to continue with
the policy of first-in first-out with choice of loads.
On February 20, 1967, Harris and another union
agent held a grievance meeting with Respondents
over grievances that Bundy had filed. Harris stated
they could come to no understanding on them, and
he then informed the Allens he was referring some
to the second step of the grievance procedure, and
the Union appointed Byron Trefts to handle the
matter. On April 17, 1967, another meeting was
held with Respondents on these grievances, and
others that had been filed in the interval. Harris
testified that when they reached one of Bundy's
grievances for compensable unloading time, Cletus
Allen jumped up and said, "you guys ain't nothing
but a bunch of sons-of-bitches," and then told them
to get "out of here before I throw you out." Marvin
Allen then spoke up and informed Harris and Trefts
that they were not going to get anything settled as
long as they believed Bundy and not the Respon-
dents, and Allen then pushed Trefts. Subsequently,
the Union notified Respondents that these
grievances would go to arbitration under the
grievance procedure in their contract.
Harris also testified that on February 20, 1967,
he mentioned to the Aliens the health and welfare
insurance provisions in the contract and wherein
the Respondents were supposed to contribute a cer-
tain weekly amount per employee, and the Respon-
dents had made no contributions. Later, the
Respondents informed the Union they had their in-
surance, and the Union then turned this matter
over to their attorney for court action on it.
Final Conclusions
I will look first at the conduct of Respondents
subsequent to the settlement agreement (Case
25-CA-2707, and the complaint dated April 11,
1967, as aforestated ). 17 The conduct of Respon-
dents prior to July 27 , 1966, can be significant to
Case 25-CA-2707 insofar as it reflects the motive
or object of Respondents ' conduct after the settle-
ment agreement , and under the Board 's modifica-
tion in Larrance Tank such background evidence
may be considered in establishing such postsettle-
ment activity.
Turning first to Bundy and circumstances as of
August 1966 and events thereafter , the Respon-
dents specifically argue in their brief that Bundy
was not immediately available for work because he
was working with Mitchell Transport Company up
"Roe Hamilton attended two of the November 1966 negotiating
meetings
1e The grievances were filed by Bundy, as I have previously detailed
herein
it In 1965 the Board modified its position in Larrance Tank Corporation,
94 NLRB 352 See Northern California District Council of Hodcarriers and
Common Laborers of America (Joseph's Landscaping Service), 154 NLRB
1384, wherein the Board stated the following
We affirm the Trial Examiner 's finding that Respondent violated the
Act by their presettlement and postsettlement conduct In this connec-
tion, we have reexamined the rule of Larrance Tank Corporation, 94
NLRB 352, upon which the Respondents rely and which indicates that
activity prior to a settlement agreement may not be considered in as-
sessing Respondents ' postsettlement conduct To the extent that the
above rule bars the use of presettlement conduct as background
evidence establishing the motive or object of a Respondent in its post-
settlement activities , we have concluded that it is incorrect Ac-
cordingly, Larrance Tank is, to that extent , hereby overruled
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
until early September 1966, that Bundy was not
given more onerous working conditions (washing
his trucks), that Bundy was not assigned defective
equipment, that there was no dispatch system based
on seniority, that Bundy was an employee who of-
fended his employer and customers and had a poor
reputation, and that Bundy was an incompetent and
insolent employee.
There is ample evidence in this record to show
that when Bundy returned to the Aliens in early
August 1966 the Respondents openly suggested
that he continue his employment with Mitchell
Transport. Regardless of the fact that Bundy made
arrangements to work for Mitchell Transport as an
extra driver-this does not detract from the over-
riding considerations that Bundy was available to
the Respondents at all times, and the Respondents
can point to no incidents which reveal in any way
that his part-time working relationship with
Mitchell Transport interfered with his driving for
the Respondents. The sole and only conflict of in-
terest, so to speak, arose on one occasion and
Bundy thereupon elected and delivered the load for
the Respondents. This temporary employment with
Mitchell as an extra driver was then completely ter-
minated, and if Respondents' arguments are of any
value-then they must also stand careful scrutiny
subsequent to September 1966.18 In reality it ap-
pears to me that the case for the General Counsel is
somewhat stronger due to the fact that out of
necessity Bundy was required to also work for
Mitchell, and is further demonstrative that Respon-
dents were attempting "to give" Bundy back to
Mitchell pursuant to their oral pronouncements.
The above was further documented when Cletus
Allen informed Bundy in August 1966 that they did
not want him, and, in February 1967, Don Allen
again reemphasized their position when he told
Bundy in no uncertain terms that he did not want
him.
During the period between August 1966 and July
8, 1967-when Bundy received his last paycheck
from Respondents-he was in personal contact with
one of the three Allens, by telephone or otherwise,
in order to obtain load assignments . While there are
considerable testimony and several exhibits in this
record bearing on calls or contacts between Bundy
and Respondents, such assumes a comparatively
minor impact since the defense places very little
reliance on the same.
Beginning on January 9, 1967, Bundy started fil-
ing grievances, as previously detailed herein. Bundy
filed three grievances to get the seniority list posted
and to get it posted correctly. Bundy testified that
in assigning loads he did not receive his share of
them, and filed a grievance concerning these along
with the others. The contract between the parties
1tl In evaluation of Respondents ' contention , I have also considered
Respondents ' exhibits of Mitchell Transport showing Bundy's earning with
them for August and September 1966
contains several sections pertaining to seniority and
provides that a list of employees rated according to
seniority is attached to the contract. This list was
not attached or posted until Bundy filed his
grievances. The contract also contains an article on
grievance procedure with four steps in it. It appears
that Bundy filed his grievances in accordance with
step 1. The contract further provides that when
drivers are employed as terminal laborers they are
to receive $2.24 per hour. Bundy also filed a
grievance on this matter, as aforestated.19 There is
nothing specific in the contract stating that loads
would be assigned on a seniority basis. However, it
is readily admitted that Respondents' general policy
of assigning loads on a first-in first-out basis would
continue until this matter could be studied and
worked out between the Union and the Respon-
dents. In relation to Bundy there is ample evidence
in this record to show that the Respondents
deviated from their first-in first-out policy. This is
especially obvious when you compare Bundy's
earnings with other drivers during the times materi-
al herein.20 I relate to the above grievances and in-
cidents because they clearly show that Bundy was
exercising the rights of employees under the ex-
press provisions of the contract, and the right to be
assigned loads under the recognized policy of first-
in first-out which was always used by the Respon-
dents and is still in effect.
Bundy also filed a grievance to the effect that he
was assigned to the worst or oldest tractor in
Respondents' fleet of trucks. Article XXII of the
contract provides in part:
No employee shall be compelled to take out
equipment that is not mechanically sound and
properly equipped to conform with all applica-
ble city, state and federal regulations.
In filing this grievance Bundy was again exercising
rights within the framework of the contract. The
facts in this record further disclose that tractors or
trucks 18 and 20, the ones driven most often by
Bundy, were the Respondents' oldest tractors and
they frequently did have mechanical difficulties.
Bundy's daily vehicle inspection reports, turned in
at the end of each shift'21 also show that for a
period of several months he did encounter such
troubles. In September 1966 Bundy recorded 11
specific complaints on tractor 20, and in October
1966 recorded 4 specific complaints on 20, and
then in February 1967 he was still making com-
plaints on his daily inspection reports about truck
20. In fact it required a period of about 6 months
before the Respondents finally repaired the king
pins on this truck. Bundy had a steering breakdown
with truck 18 on or about June 14, 1967, while
making a trip to Mason, Ohio. From August 1966
to July 1967, Bundy had a total of approximately
" See General Counsel's Exhibit 5-Articles VI, X, and Appendage A
'° General Counsel's Exhibit 2
z' Union's Exhibits Number 3 and 4
INTERSTATE EQUIPMENT CO., INC. 1331
12 breakdowns. Bundy stated it would be possible
for some truckdrivers to be free from breakdowns
because they - Burks in particular - drove the new
tractors.22 It is further pointed out that Bundy not
only drove the oldest trucks, but he was also as-
signed the most time-consuming loads. He was
often given bag loads instead of board loads-and
quite frequently his bag cargo had to be unloaded
at construction jobs as the material was needed-
and this would take several hours. Drivers were not
paid for waiting time while unloading.
The Respondents place considerable stress on
their contention that Bundy offended customers,
had a poor reputation, and was incompetent and in-
solent . From my various observations of Bundy as a
witness testifying before me-it must be noted that
he is not inclined to be indirect or roundabout in
many of his thoughts and expressions, and in dif-
ferent incidents, pertaining to his working relation-
ships, freely stated his views and objections in ex-
tremely plain terms. The Respondents also ad-
dressed certain remarks to Bundy with equal clari-
ty. I am certain that Bundy's direct approach, so
well typified in this record, carried over into con-
tacts with others and his typical and individual
acrimonious characteristics were not generally ap-
preciated by everyone and frequently by nobody.
Manager Burns , of the U.S. Gypsum plant, had
received a complaint about Bundy from one or two
of his customers, but then admitted he had received
approximately 28 customer complaints about
delivery service in 1967, and stated he had also
received complaints on Respondents' drivers other
than Bundy. Manager Abram, of National Gypsum,
had received complaints on Bundy in 1966 and told
Don Allen about them. However, there is no
evidence in this record that such complaints were
ever passed onto Bundy until July 1967, when
Allen then informed Bundy that National Gypsum
did not want him to drive for them. In the final
analysis-Bundy was a union adherent, the Respon-
dents knew it, and the remarks made to him and
the treatment he received upon his immediate
return undoubtedly stimulated his subsequent reac-
tions and conduct.
There is a preponderance of evidence in this
record which shows that Bundy was assigned less
remunerative and less desirable runs, that he
received fewer loads than other drivers in disregard
to the first-in first-out dispatch system, that the
Respondent initially assigned him less seniority than
he was entitled to, and that Bundy was assigned
older and less roadworthy trucks. By these acts the
Respondents constructively discharged Bundy on
July 7, 1967.23
Under the settlement agreement Roe Hamilton
also went back to work for the Respondents in Au-
gust 1966 and up till November 1, 1966, worked a
full schedule. About the time of the settlement
agreement , Don Allen informed Hamilton that his
GMC tractor was inadequate to pull loads because
it had a "dead axle" and as a result Hamilton
agreed to buy the Dodge truck, which had power in
both axles, and downpayment funds were advanced
or loaned to him for this purpose, as aforestated.
Don Allen then told Hamilton he would keep him
busy. However, when Hamilton began sitting in on
the joint bargaining sessions with the Union in
November 1966 his loads started slackening up.
When Hamilton pointed out to Don Allen that
Respondents were running younger drivers around
Hamilton , Allen answered, "I'm doing the best I
can." At the time Hamilton was the oldest (seniori-
tywise) over-the-road driver. Russell Case pulled a
special intrastate run to Indianapolis, and Joe Sul-
livan, a driver and mechanic, spent a good deal of
his time around the terminal yard. Finally, as
Hamilton received fewer and fewer loads in
November, he was starting to fall behind on his
truck payments and was then forced to quit. Hamil-
ton lost his truck because of failure to keep up his
payments. This record clearly shows that the fewer
load assignments Hamilton received in November
1966 were directly related to his attendance at the
negotiating meetings, and this is obviously so
because there are no contentions by the Respon-
dents which in any way bear on other aspects of
Hamilton's satisfactory work habits or per-
formance. In accordance with the above, Roe
Hamilton was constructively discharged by the
Respondents on November 24, 1966.
In the complaint dated April 11, 1967, it is also
alleged that on or about February 13, 1967, Cletus
Allen abused, maligned, scorned, berated, and
threatened employees with physical harm because
of their union activities. Bundy testified that on
February 11, 1967, he gave Marvin Allen receipts
for clutch fluid and water, and Cletus Allen then
joined in the conversation and informed Bundy that
he could not even wash his truck right, and also
told Bundy, "If I didn't get in line he was going to
kick my ass good." On this occasion Cletus Allen
further stated that Bundy had been working for
somebody else and trying to put Respondents out of
business , and when he found out who it was, Bundy
"was going to be in a lot of trouble." Later on,
Bundy was in a grievance meeting with other
representatives of the Union, and on this occasion
Cletus Allen also threatened physical harm when he
stated, "Get your ... out of here before I throw
you out."
22 Regulations of the Interstate Commerce Commission require that
drivers make daily reports on their defective equipment, and this is turned
in with or on their logs containing various other information
29 There is an allegation that Respondents imposed more onerous work-
ing conditions-making Bundy wash his trucks on his own time and at his
own expense This record clearly shows that no driver expects to be reim-
bursed for washing his equipment-and that this is a matter of personal
pride with many of the drivers Bundy even admitted that drivers pay for
their own water when performing this chore I hereby dismiss this allega-
tion.
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The April 11, 1967, complaint further alleges an
8(a)(4) violation. It is the Board's position that
Section 8(a)(4) protects prospective witnesses
against reprisal no less than an actual witness. The
underlying purpose is to insure that the parties may
freely utilize Board procedures. Bundy filed the
charge in Case 25-CA-2510, and both Bundy and
Hamilton testified in the July 1966 hearing before
me, as aforestated. I find that the Respondents also
violated Section 8(a)(4) of the Act by discriminat-
ing against the employees involved because they
gave testimony and Bundy filed a charge under the
Act.
The purpose of a settlement agreement is to
extinguish labor disputes without the expense or
delay attendant upon litigation. However, settle-
ment agreements are not licenses for the frustration
of statutory rights. It is well recognized by the
Board and the courts that where the promises em-
bodied in a settlement agreement to respect those
statutory rights are breached-the Board is fully
justified in vacating the agreement and litigating the
legality of a respondent's entire course of conduct.
I submit that Respondents' conduct subsequent to
the execution of the settlement agreement con-
stituted a flagrant breach of the promises contained
therein, and justified the Regional Director's deci-
sion to vacate the settlement. In this case, the
breach of the settlement agreement is apparent
even if the postsettlement conduct discussed above
is viewed in isolation. Thus, in cynical disregard of
the settlement agreement, Respondents obviously
conditioned their reinstatements of Bundy and
Hamilton on the basis that they would forgo their
union activities, and also continued making unlaw-
ful threats to employees. In view of the finding that
the settlement agreement was properly set aside, I
will now pass upon the Respondents' conduct that
occurred prior thereto.
In the period prior to the settlement agreement
the Respondents engaged in numerous instances of
interrogations and threats, as set forth earlier
herein. They asked employees if they had signed
authorization cards and if they had attended union
meetings , inquired as to the happenings at union
meetings , asked for the identification of the em-
ployees or "ringleaders" heading their efforts to or-
ganize, asked what the employees were after or
wanted, and how they would vote in the election.
The Respondents also accompanied their interroga-
tions with threats. Merle Eads was informed that if
he joined the Union he would be without a job.
Don Allen told Hamilton on two occasions his job
would be in jeopardy, and on several occasions
threatened to close the business or terminal
because of the Union, and both before and after the
settlement agreement , Cletus Allen threatened
bodily harm to employees because of their union
activity. The above are not incidents or statements
in the exercise of free expression, predictions, or
opinions , nor can they be classified as a legal poll of
employees as to how they were going to vote in the
election. In accordance with the above, I find that
the Respondents violated Section 8(a)(1) of the
Act.24
The Respondents contend that Alvin Shepherd
was discharged on March 9, 1966, because he was
not a competent truckdriver, and point to his ac-
cidents and the testimony of Don Allen that he
damaged and destroyed property. The Respondents
argue that Shepherd's testimony concerning the re-
marks of Cletus Allen-about letting the Union get
him a job on the day of discharge-is a mere af-
terthought.
In late February 1966 Shepherd openly admitted
to Respondents his attendance at the union meeting
a few days earlier-so the Respondents had direct
knowledge of his union activities prior to his March
1966 discharge. When his minor accidents are ex-
amined carefully, they do not show any real
reckless disregard for safety or care of equipment;
in fact, two were accidents caused by others, one
was a minor breaking of taillight, another resulted
from Respondent's operation of trailer without
proper equipment (headboard).
On the day of his discharge it appears that he was
faced with a difficult situation in attempting to
rescue Blevins from his breakdown mishap. It
further appears that Shepherd exercised reasonable
judgment and caution in trying to pull Blevins' disa-
bled truck out from the trailer, and while he may
have miscalculated the weight of the trailer, and
possibly used excess force in backing under the
trailer-it cannot be maintained that such events
were sufficient motivation to cause his immediate
discharge when all other circumstances are con-
sidered. Shepherd was a known adherent for the
Union, Respondents had demonstrated open hostili-
ty towards the Union in making prior interrogations
and threats, as aforestated, and when Cletus Allen
fired Shepherd he specifically told him to let the
Union find him a job. Don Allen did not hear what
Cletus said to Shepherd at this time and Blevins is
the only witness who denied that Cletus Allen made
such a statement . From my observations of the wit-
nesses and their demeanor while testifying-I credit
the testimony of Shepherd. On the basis of the
above, and for the reasons given , I find that Alvin
Shepherd was discriminatorily discharged on March
9, 1966.
Roe Hamilton secured about 15 authorization
cards from Harris and had different drivers sign
them and also attended the union meetings. This
record shows that by February 28, 1966, the
" Most of the above statements credibly attributed to Respondents stand
undemed Cletus Allen is a somewhat elderly man in years and now suffers
from a heart condition He did rot testify at the hearings
INTERSTATE EQUIPMENT CO., INC. 1333
Respondents knew that Hamilton was active for the
Union. The undenied evidence also shows that Don
Allen knew the names of the drivers who attended
union meetings, and on two occasions, prior to his
discharge, Don Allen even informed Hamilton that
his job was in jeopardy. When Hamilton sold his old
trucks to Parker, he then told Don Allen that in so
doing he was not selling his job since he was buying
another tractor, and Allen agreed to this. There was
no reason for Don Allen to initially agree to lease
Hamilton's newer truck, and then 2 weeks later
completely reverse himself by telling Hamilton that
the Respondents would not lease his newer truck.
Respondents claim that hauls or business had
slowed up cannot be substantiated as Hamilton
later observed two new drivers hauling for Respon-
dents, and on March 24, 1966, the Respondents ex-
ecuted a 1-year lease with Roy Parker, as afore-
mentioned. Based on the prior open hostility by the
Respondents, and for the reasons stated above-I
find that Roe Hamilton was discriminatorily
discharged on March 14, 1966.
Frank Bugh never received any load assignments
after he acted as the Union's observer at the elec-
tion on April 9, 1966. The Respondents contend
that Bugh quit his employment. I do not agree, and
find otherwise. The evidence clearly shows that
Bugh never informed the Respondents he was
quitting, and that prior to his union activity the
Respondents would call Bugh and give him his load
assignments. Subsequent to the election he was
never contacted by the Respondents. It is further
noted that from March 24, 1966, to the time of the
April election, the Respondents were not certain as
to the extent of Bugh's participation and affiliation
with the Union, but, nevertheless, they then quit
contacting Bugh to give him his load assignments-
as had been their former procedure-and Bugh had
to contact them. Bugh admitted that in the period
between the election and April 15, 1966, he did not
call or contact the Respondents, but on the latter
date Bugh asked Don Allen why he was not work-
ing, and Allen then mentioned the 7 to 4 results of
the election and also informed Bugh that "they
hadn't made up their mind what they were going to
do with me [Bugh]." A few days later Allen again
told Bugh that he did not know for sure what he
was going to do with him and this was after Bugh
had specifically asked Don Allen for loads. From
the above-coupled with the prior threats made to
Bugh and the Respondents' antiunion sentiments,
as aforestated-it is clear that Respondents dis-
criminatorily laid off Bugh on April 9, 1966.
William Bundy encountered his initial difficulty
after he had been identified by the Respondents as
one of the drivers attending the union meeting in
late February 1966.25 From then on Bundy received
very few loads and even observed a new employee
driving the truck he had been operating. In early
March 1966 Bundy then informed Don Allen that
he had attended a union meeting in order to obtain
a withdrawal card and also told him about a former
unfavorable experience Bundy had with the Union
and, immediately thereafter, Bundy was given
choice load assignments for about 10 days. How-
ever, after the middle of March 1966, Bundy at-
tended another union meeting, and at this meeting
Bundy made the statement that if the Union did not
win this election, he would quit. On or about March
23, 1966, Don Allen told Bundy that he knew which
side of the fence he was on as he had been seen at
the union hall. After March 18, 1966, Bundy did
not haul any more loads until August 1966 as previ-
ously set forth herein. This record shows the
Respondents had ample work for all drivers after
March 18, 1966, and there is no reliable evidence
that Bundy's part-time work on a nearby farm seri-
ously interfered with his truckdriving. Bundy's load
assignments were given and taken away strictly on
the basis of the most recent information the
Respondents had as to his latest union activity. For
a while they were in doubt and, therefore, he
received very few loads. Next, the Respondents
thought Bundy had denounced the Union and he
then was given plenty of good loads. Finally, they
determined that Bundy was definitely for the
Union, and he then received no load assignments. It
is further pointed out that most of the statements
attributed by Bundy to Don Allen about their union
conversations stand undenied. From the above-
coupled with the prior threat made to Bundy and
the Respondents' strong antiunion sentiments as
amply demonstrated in the 8(a)(1) section of this
Decision-I find that Respondents discriminatorily
laid off Bundy on March 18, 1966.
The remaining issue in this proceeding is whether
or not the Respondents unlawfully refused to bar-
gain with the Union on and after March 1, 1966. It
should first be noted that the existing contract
between the parties runs for a 3-year period-from
January 1, 1967, to January 1, 1970. The General
Counsel maintains the Respondents negotiated in
bad faith, seeks a Joy Silk Mills and Bernel Foam
type of relief and remedy, and requests the same
for permanence and stability to the bargaining rela-
tionship. On the other hand, the Union states that
the parties negotiated a contract, that they are in-
terested in servicing their members pursuant to the
contract, that the Union has no objection to it, and
further maintains it is consistent with the purposes
of the Act for this contract not to become other-
wise involved in this proceeding. The Respondents
take issue with the 8(a)(5) allegation and point to
the following: The Union did not represent a
majority of the employees in an appropriate unit,
that the Respondents agreed to a consent election,
25 As aforestated, the Respondents were well aware of the drivers attend-
ing this meeting as Don Allen told Merle Eads who they were
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that by March 1, 1966, several of the employees
had changed their minds concerning the desirability
of the Union to represent them and were not fully
familiar with the "technical ramifications" when
fixing their signatures to cards, that all but one of
the employees involved were either nonunion mem-
bers or were in a withdrawal or suspended status
with the Union, and that even though the Union
lost the election- the Respondents accepted the
terms in the settlement agreement wherein they
were to negotiate with the Union, did so, and such
negotiations then resulted in a contract.
On or about March 3, 1966, the Union made a
demand for recognition based upon authorization
cards. At this time, Union Representative Harris of-
fered the authorization cards to the Respondents,
and Don Allen then stated that he was not a hand-
writing expert , and immediately told Harris to file a
petition and have an election. Harris went ahead
and filed the petition. On March 17, 1966, the
Union and Respondents met again , and after
discussions , as aforestated , agreed to consent elec-
tion.26 From my discussions herein-I find that the
Union had a majority of valid authorizations in an
appropriate unit when their demand for recognition
was made in early March 1966.
While an employer's right to a Board election is
not absolute , it has long been established Board
policy that an employer may refuse to bargain and
insist upon such an electiod as proof of a union's
majority unless its refusal and insistence were not
made with a good-faith doubt of the Union's
majority. An election by secret ballot is normally a
more satisfactory means of determining employees'
wishes, although authorization cards signed by a
majority may also evidence their desires. Absent an
affirmative showing of bad faith, an employer,
presented with a majority card showing and a bar-
gaining request, will not be held to have violated his
bargaining obligations under the law simply
because he refuses to rely on cards, rather than an
election, as the method for determining the Union's
majority. Whether an employer is acting in good
faith or bad faith in questioning the Union 's majori-
ty is a determination which of necessity must be
made in the light of all the relevant facts of the
case, including any unlawful conduct of the em-
ployer, the sequence of events, and the time lapse
between the refusal and the unlawful conduct.
Where a company has engaged in substantial unfair
labor practices calculated to dissipate union sup-
port, the Board, with the courts' approval, has con-
cluded that employer insistence on an election was
not motivated by a good-faith doubt of the union's
majority, but rather by a rejection of the collective-
bargaining principle or by a desire to gain time
within which to undermine the union. However,
this does not mean that any employer conduct
found violative of Section 8(a)(1) of the Act, re-
gardless of its nature or gravity, will necessarily
support a refusal-to-bargain finding. For instance,
where an employer's unfair labor practices are not
of such a character as to reflect a purpose to evade
an obligation to bargain, the Board will not draw an
inference of bad faith.27
Immediately after Harris made his demand for
recognition, Don Allen told him to go ahead with
an election . A few weeks later the parties again as-
sembled and the agreement was reached for a con-
sent election. The Respondents determined that
this matter could best be resolved through the or-
derly process of the National Labor Relations Act,
and the Board's extremely efficient machinery for
an election was then invoked. At the election there
were 14 total votes cast, and out of these 7 votes
were cast against the Union, 4 were for the Union,
and 3 votes were challenged and, therefore, the
Union did not receive a majority. Nevertheless, as a
part of the settlement agreement the Respondents
agreed to negotiate with the Union, and this they
did notwithstanding the results of the election. All
these events and circumstances must be considered
in a review of all the relevant facts in this case, and
then matched against the unfair labor practices, as
previously detailed herein. I submit, however, that
agreeing to negotiate after the Union lost the elec-
tion , and then subsequently meeting and exchang-
ing proposals and counterproposals with the Union
culminating in a signed contract between the
parties places the failure -to-bargain allegation in a
precarious position and it would now be extremely
difficult to find, with any reasonable rationale, that
Respondents completely rejected the collective-
bargaining principle. And even if their unfair labor
practices were calculated to undermine and dis-
sipate the Union's majority, the Respondents' later
conduct in agreeing to recognize and bargain, and
then doing so, acted as an overall cure and ulti-
26 The consent -election agreement specified and outlined the same unit
as alleged appropriate herein No newly discovered or previously unavaila-
ble evidence is offered here by the Respondents , nor has it established the
existence of special circumstances warranting reexamination of the previ-
ously determined and agreed -upon unit Had Respondents desired to have
their attorney present at the meeting on March 17, 1966, there was nothing
to prevent them from doing so The language on the authorization cards in
question is clear The prospective applicant or signer requests membership
in the Union, and authorizes the Union to act as the collective-bargaining
agent and to be bound by all laws, rules, and contracts of the Union, and
even though some of the card signers here were out on suspension or on
withdrawals from past affiliations, there is nothing to show that their
present membership applications or cards were not received . All the
testimony in this record shows that they were duly acknowledged by the
Union The Respondents further argue that several of the employees sub-
sequently changed their minds about the Union 's representing them, and
point to the testimony of card signers in this respect However , it is well
established that an employee 's thoughts , or afterthoughts , as to why he
signed a union card , cannot negate the overt action of having signed a card
designating a union as bargaining agent There are no contentions what-
soever that the Union made any misrepresentations or in any way was coer-
cive in getting the employees to sign their cards. As outlined previously
herein , the Union had a majority of cards on or before their demand.
Y7 Hammond & Irving, Incorporated , 154 NLRB 1071.
INTERSTATE EQUIPMENT CO., INC. 1335
mately restored the rights which the Respondents
had previously destroyed.
I am satisfied, on all the facts herein, that an
8(a)(5) remedial order would not be warranted in
this case , and is not required to effectuate the poli-
cies of the Act even though a technical violation
might be found. It is axiomatic that the law does
not require a useless act. The parties already have a
3-year contract which will not expire till 1970, and
it appears to me this is adequate stability in the bar-
gaining relationships . The December 1966 strike
may have been a factor in moving the Respondents
to the bargaining table, but the Union has a con-
tract, and although they have encountered difficul-
ties in processing grievances and in getting Respon-
dents to fulfill the provisions on health and welfare
insurance, as detailed earlier herein, they neverthe-
less have no objections to it and have also ex-
pressed the desire to work under the contract and
service the drivers pursuant to the provisions con-
tained therein. At least for practical purposes, the
Union must feel that the Respondents have been
and are acting in good faith.
In the final analysis, the usual and normal remedy
is to recommend that the employer bargain with the
union and if agreements are reached embody same
in a signed contract. This would give the Union
nothing that it does not already have, a recommen-
dation or Board order providing that the parties
void their present contract and start all over would
be highly disruptive, and in no way conducive in ef-
fecting harmonious industrial relationships.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondents set forth in section
III, above-since they occurred in connection with
Respondents' business operations described in sec-
tion I , above-had, and continue to have, a close,
intimate, and substantial relation to trade, traffic,
and commerce among the several States. Absent
correction , such conduct would tend to lead to
labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Since I have found that the Respondents engaged
in unfair labor practices, I shall recommend that
they be ordered to cease and desist therefrom, and
to take certain affirmative action, including the
posting of appropriate notices, designed to effectu-
ate the policies of the Act.
Having found that Alvin Shepherd was dis-
criminatorily discharged on March 9, 1966, that
Roe Hamilton was discriminatorily discharged on
March 14, 1966, and again on November 24, 1966,
that Frank Bugh was discriminatorily laid off on
April 9, 1966, and that William Bundy was dis-
criminatorily laid off on March 18, 1966, and then
discriminatorily discharged on July 7, 1967, it will
be recommended the Respondents offer them full
and immediate reinstatement to their former posi-
tions or ones substantially equivalent thereto,
without prejudice to their seniority and other rights
and privileges, and make them whole for any loss of
earnings suffered by reason of the discriminations
against them. In making them whole, the Respon-
dents shall pay to them a sum of money equal to
that which they would have earned as wages from
the dates of such discriminations to the date of
reinstatement or a proper offer of reinstatement, as
the case may be, less their net earnings during such
period, and less any sums heretofore received by
way of settlements. The backpay is to be computed
on a quarterly basis in the manner prescribed by
the Board in F. W. Woolworth Company, 90 NLRB
289, with interest thereon at 6 percent as provided
by the formula adopted in Isis Plumbing & Heating
Co., 138 NLRB 716.
I shall further recommend that the Respondents,
upon request, make available to the Board, or its
agents, for examination and copying, all payroll
records and reports, and all other records necessary
to properly analyze the amounts of backpay and all
other compensations due the discriminatees.
It will also be recommended that the Respon-
dents cease and desist from infringing in any
manner upon the rights guaranteed in Section 7 of
the Act.
CONCLUSIONS OF LAW
1. The Respondents are 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 the Act.
3. By discriminatorily discharging and/or laying
off Alvin Shepherd, Roe Hamilton, Frank Bugh,
and William Bundy, as found above, the Respon-
dents have engaged in and are engaging in unfair
labor practices within the meaning of Section
8(a)(3) of the Act.
4. By interfering with, restraining, and coercing
employees in the exercise of rights guaranteed them
by Section 7 of the Act, as found above, the
Respondents have engaged in and are engaging in
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
5. By discriminating against William Bundy and
Roe Hamilton for testifying at a Board hearing,
and/or filing charges under the Act, the Respon-
dents have engaged in unfair labor practices within
the meaning of Section 8(a)(4) of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law, and upon the entire record
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in this case, it is recommended that the Respon-
dents, their officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership of any of its em-
ployees in the Union or any other labor organiza-
tion, by discharging, or in any other manner dis-
criminating against, any employee in regard to his
hire, tenure, or any term or condition of employ-
ment, except as authorized by Section 8(a)(3) of
the Act.
(b) Interrogating employees as to authorization
cards, who attended union meetings, and what
transpired at such meetings; asking for the identifi-
cation of employees at meetings and who the
leaders were; what employees want with the Union;
and inquiring how employees would vote at an elec-
tion.
(c) Threatening employees with discharge, clos-
ing of the terminal , and further threatening bodily
harm because of their activity on behalf of the
Union.
(d) Discharging , suspending , laying off, or other-
wise discriminating against any employee for giving
testimony or filing charges under the Act.
(e) In any other manner interfering with, or
straining , or coercing its employees in the right to
self-organization, to form labor organizations, to
join or assist the Union, or any other labor or-
ganization , to bargain collectively through
representatives of their own choosing, and to en-
gage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Offer Alvin Shepherd, Roe Hamilton, Frank
Bugh, and William Bundy immediate and full rein-
statement to their former or substantially
equivalent positions without prejudice to seniority
or other rights and privileges , and make them
whole for any and all loss of earnings suffered by
reason of the discriminations against them, in the
manner set forth in the section above entitled "The
Remedy."
(b) Notify the above-named employees if
presently serving in the Armed Forces of the
United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
(c) Preserve and, upon request , make available
to the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, and personnel records and re-
ports necessary to analyze the amounts of all
backpay due and the rights to reinstatement under
the terms of the Recommended Order.
(d) Post at its place of business in Bedford, Indi-
ana, copies of the notice attached to this report as
an appendix.28 Copies of the notice to be furnished
by the Regional Director for Region 25 shall be
posted immediately upon their receipt, after being
duly signed by a representative of Respondents.
When posted, they shall remain posted for 60 con-
secutive days thereafter in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that these notices are not
altered, defaced, or covered by any other material.
(e) File with the Regional Director for Region
25 within 20 days from the. date of service of this
Decision, a written statement setting forth the
manner and form in which it has complied with
these recommendations.29
IT IS FURTHER RECOMMENDED that the 8(a)(5) al-
legation be dismissed, and it is also further recom-
mended that the portion of the complaint alleging
the Respondents imposed more onerous working
conditions on Bundy, as noted previously herein, be
dismissed.
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order " shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read " Notify the Regional Director for
Region 25 , in writing , within 10 days from the date of this Order , what steps
Respondents have taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the
National Labor Relations Act, as amended, we
hereby notify our employees that:
WE WILL NOT encourage or discourage mem-
bership by any of our employees in Local 135,
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, by
discharging or in any other manner dis-
criminating against any employees in regard to
his hire , tenure , or any term or condition of
employment.
WE WILL NOT interrogate employees about
authorization cards, attending union meetings,
what transpired at such meetings , what em-
ployees want with the Union; seek identifica-
tion of employees at the meetings and who the
leaders were; -nor inquire as to how employees
will vote at any union election.
WE WILL NOT threaten employees with
discharge, closing of the terminal, or with any
bodily harm because of their activity on behalf
of the Union.
INTERSTATE EQUIPMENT CO., INC.
WE WILL NOT discharge , suspend , lay off, or
otherwise discriminate against any employee
for giving testimony or filing charges under the
Act.
WE WILL offer to Alvin Shepherd, Roe
Hamilton , Frank Bugh , and William Bundy im-
mediate and full reinstatement to their former
or substantially equivalent positions , and make
them whole for any loss of pay suffered as a
result of all the discriminations against them as
provided for herein.
All our employees are free to become or remain,
or refrain from becoming or remaining, members of
the above-named Union, or any other labor or-
ganization.
INTERSTATE EQUIPMENT
CO., INC., INTERSTATE
HIGHWAY EXPRESS, INC.,
AND CLETUS G. ALLEN,
SOLE PROPRIETOR, D/B/A
1337
HLLLN 1vIOTOR EXPRESS
(Employer)
Dated By
(Representative) (Title)
Note: We will notify the above-named em-
ployees to be offered reinstatement if presently
serving in the Armed Forces of the United States of
their right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 614 ISTA Center, 150 West Market Street,
Indianapolis, Indiana 46204, Telephone 633-8921.
354-126 O-LT - 73 - pt. 2 - 13