C. I. Whitten Transfer Co.

National Labor Relations Board - Board Decisions

Nov 27, 1992

309 N.L.R.B. 610 (N.L.R.B. 1992)

610
309 NLRB No. 94
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent and the General Counsel in effect have excepted
to some of the judge’s credibility findings. The Board’s established
policy is not to overrule an administrative law judge’s credibility
resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Prod-
ucts, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We
have carefully examined the record and find no basis for reversing
the findings.
1 Hereafter all dates are in 1990 unless otherwise indicated.
2 Respondent’s motion to dismiss the independent 8(a)(1) allega-
tions citing Nickles Bakery, 296 NLRB 927 (1989), is denied. Be-
retta U.S.A. Corp., 298 NLRB 232 (1990).
3 The motions to correct the transcript, unopposed, are hereby
granted.
4 In its answer, Respondent concedes jurisdiction and the status of
the Union as a labor organization.
C. I. Whitten Transfer Co. and James Lafountain
and Michael E. Fowler. Cases 3–CA–16034 and
3–CA–16052
November 27, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On May 29, 1992, Administrative Law Judge Wil-
liam F. Jacobs issued the attached decision. The Re-
spondent and the General Counsel filed exceptions,
supporting briefs, and answering briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, C. I. Whitten Transfer Co.,
Plattsburgh, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Robert Ellison, Esq., for the General Counsel.
Robert G. Landes, Esq. of Briarcliff Manor, New York, for
the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge. This case
was tried before me on June 11 through 14, 1991, in Platts-
burgh, New York. The charge in Case 3–CA–16034 was
filed on December 6, 1990, and amended on February 1,
1991, by James La Fountain. The charge in Case 3–CA–
16052 was filed on December 17, 1990,1 by Michael Fowler.
Complaint issued in Case 3–CA–16034 on January 18, 1991,
and was amended on February 4, 1991. An order consolidat-
ing cases, amended consolidated complaint and notice of
hearing in Cases 3–CA–16034 and 3–CA–16052 issued on
May 10, 1991, alleging violations of Section 8(a)(1) and (3).
More particularly, the amended consolidated complaint al-
leges that C. I. Whitten Transfer Co. (Respondent or Com-
pany) violated Section 8(a)(1)2 by unlawfully interrogating
its employees, threatening its employees with job loss and
plant closure, creating among its employees the impression
that their union activities were under surveillance and that it
would be futile to select Teamsters Local Union 648 (the
Union) as their collective-bargaining representative informing
its employees that they could not discuss the Union at any
time, and discriminatorily enforcing a rule preventing its em-
ployees from wearing union insignia; and violated Section
8(a)(1) and (3) by unlawfully terminating two employees, re-
fusing to employ a third, and reducing the work hours of one
of them before his termination. In its answer to the com-
plaint, Respondent denies the commission of any unfair labor
practices.
All parties were represented at the hearing and were af-
forded full opportunity to be heard and to present evidence
and argument. Briefs3 were duly filed. Upon the entire
record, my observation of the demeanor of the witnesses and
after giving due consideration of the briefs, I make the fol-
lowing
FINDINGS OF FACT4
Chronology of Events
Respondent is a West Virginia corporation with terminals
and offices in Plattsburgh, New York, and elsewhere, where
it is engaged in the intrastate, interstate, and international
transportation of explosives and other materials. In 1989 Re-
spondent leased certain facilities in Plattsburgh from a com-
pany called X-Plo and at the same time purchased from X-
Plo some 20 trucks and trailers. The president of X-Plo, Don
Jerry, credibly testified that at the time of the agreement, X-
Plo was in the business of buying and selling explosives but
that he did not, by means of the agreement, become an
owner of Respondent or a member of Respondent’s manage-
ment. The agreement did provide, however, that Respondent
would continue to do all of the trucking that X-Plo had pre-
viously done prior to execution of the agreement. This truck-
ing consisted, in part, of the transportation of raw materials
to X-Plo’s Plattsburgh facility, the transportation of explo-
sives to X-Plo’s customers, but mostly the hauling of cargo
for X-Plo’s customers. The agreement, which is in writing,
is for 10 years but provides that X-Plo can unilaterally, at
any time, take away Respondent’s role as X-Plo’s prime car-
rier and resume that role itself.
At the time of the agreement, Respondent did not employ
a sufficient number of drivers to drive the trucks it had pur-
chased from X-Plo. It, therefore, hired some or all of X-Plo’s
drivers. This occurred on or about January 15, 1989.
Michael Fowler had been a driver for Anchor Motor
Freight, a unionized company, for approximately 13 years
when he was laid off by that employer in 1988. At Anchor,
Fowler enjoyed the benefits of a Teamsters, Local 648 col-
lective-bargaining agreement, which included a valuable
health insurance package. On the other hand, the over-the-
611C. I. WHITTEN TRANSFER CO.
5 Payroll records for the period May 25 through August 3 reflect
that Fowler was paid for 60 hours half the time or less. 6 This threat of plant closure by Aborn was not alleged.
road driving requirements of his employment at Anchor, kept
him away from home four or five nights per week, and this
he did not enjoy. After discussing with his wife, the consid-
eration of the high income earned versus the loss of quality
family time, they were in the process of deciding that the lat-
ter had a higher priority when the layoff came. They deter-
mined that in seeking new employment, he should emphasize
remaining at home at the expense of higher wages.
In mid-March 1989, Fowler applied for work with Re-
spondent. Although he was hired as a local driver, there was
an understanding that he would occasionally have an over-
night run.
Fowler performed his duties for Respondent in an accept-
able manner and was considered by management to be a
good employee. When Fowler was recalled by Anchor in the
spring of 1989, he refused the offer of recall and informed
Respondent’s management that he intended to continue to
work at Whitten.
Within a month of being hired, Regional Manager Aborn
inquired of Fowler how he enjoyed working for Respondent.
Fowler replied that he liked the job but could not live on the
wages he was receiving, that he would need 60 hours per
week to get by. According to Fowler, Aborn immediately ar-
ranged for Fowler thereafter to receive credit for 60 hours
per week whether or not he actually worked that much. Ac-
cording to Aborn, however, he paid Fowler for over 60 hours
only when he worked over 60 hours and for less than 60
hours when he worked for less than 60 hours. I credit
Aborn.5
In June 1989, Respondent hired James La Fountain, an ex-
perienced driver and a member of Teamsters Local 648 for
24 years. La Fountain made no secret of his affiliation with
the Union and wore a Teamsters hat around the terminal. La
Fountain was assigned runs up into Canada including occa-
sional trips to Halifax, Nova Scotia, and Newfoundland.
In early 1990, Fowler requested permission of Aborn to
have his wife accompany him on trips to Canada. Aborn re-
plied that he could do better than that. He suggested that if
Fowler would get her an explosives permit, he would put her
on the payroll. Fowler agreed. Under Canadian regulations,
in effect at the time, trucks carrying certain classes of explo-
sives were required to be manned by a guard or rider in ad-
dition to the driver. It was Aborn’s idea to have Debra
Fowler ride with her husband on trips requiring a rider.
Shortly after this conversation, Debra Fowler obtained the re-
quested permit and in March began to accompany her hus-
band on trips into Canada as an employee of Respondent.
In January 1990, La Fountain engaged Aborn in a con-
versation about the inadequacies of the Respondent’s em-
ployees’ hospitalization coverage and the superior benefits of
the Teamsters plan. La Fountain had already discussed these
matters with some of the other employees. Aborn took notes
and promised to bring up the matter with the president of the
company.
When La Fountain heard nothing more about insurance
from Aborn he began to discuss working conditions with
Fowler and other employees. He later visited the union office
and obtained authorization cards. In February and in months
following he distributed a number of cards. He signed one
himself on February 27 and obtained the permission of one
other employee to sign his name on a card, the same date.
Other signed authorization cards were obtained by La
Fountain from other employees in March, April, and May
and although he continued to discuss the Union’s insurance
plan with them, he did not strenuously advise them to vote
for the Union. Fowler, and several other employees who had
been union members before, voiced opinions favorable to the
Union. In all, La Fountain distributed about 15 cards. Al-
though not everyone signed cards, several did so, including
the dispatcher, Brian Hart. La Fountain returned the signed
cards to the Union. Some of the card signers were later ex-
cluded from the unit. Michael and Debra Fowler signed au-
thorization cards on May 10 and Michael later returned them
to La Fountain.
Michael Fowler credibly testified that he also distributed
cards to as many as five other employees, at least one in the
yard while at work. He also explained to one or more em-
ployees the benefits of being represented by the Union and
together with La Fountain arranged for a meeting at the
union hall which was attended by eight of Respondent’s
other employees.
Fowler testified that after it was found out that there was
an organizational drive in progress, the atmosphere at work
began to deteriorate. There was verbal abuse as employees
took one side or the other. Fowler denied, however, that ei-
ther Fuller, the terminal manager, or Aborn participated in
this activity.
On May 16, the petition in Case 3–RC–9593 was filed.
After receipt of the petition by Respondent, Aborn and Fuller
separately approached Fowler, and asked him if he had heard
anything about the union organizational attempt. Fowler re-
plied that he was aware of the fact that some of the drivers
had expressed interest in joining Local 648. He did not, how-
ever, identify himself, at that time, as one of them, although
he might just as well have, since he added that they had no
right to ask him that question. To Fowler’s comment, Fuller
replied, ‘‘That’s all I need to know!’’
A second discussion took place, about this time, between
Fowler and Aborn, in Aborn’s office. During this conversa-
tion, Aborn said, ‘‘If they get the Union in here, they’re
going to shut the doors.6 Don Jerry’s going to take over the
trucking. He has already told me that I have a job with him,
but all the drivers are going to be gone. He said I can take
over the management of the trucking end of it for X-Plo, and
the drivers would be gone.’’
Fowler credibly testified about a third conversation which
took place about this time. On this occasion, Fowler had just
returned from a trip late one afternoon. Fuller engaged him
in a lengthy talk about the Union. He said that he wanted
some straight answers about the Union and asked him ‘‘what
the guys were looking for.’’ Fowler replied that the people
that were involved were looking for a secure future with the
Company with health and dental insurance and hospitaliza-
tion. In reply, Fuller advised Fowler that he had once worked
for Oneida, and that he had seen that company go down the
drain because of the Union. He added that he had lost his
job with Oneida and had ended up having to operate a jack-
hammer. Fuller told Fowler that he was afraid of losing his
house because he was going to lose his job, as was Aborn.
612 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Fuller then expanded on what he had already said. He told
Fowler that the Company was going to close its doors and
that he would be out of a job and so would all the other
drivers. He said that Don Jerry hated him, that he did not
kowtow to Jerry, and Jerry did not like that. He said further
that he would be gone but that since Aborn and Jerry were
the best of friends, Aborn would find a job through Don and
he (Fuller) would be out on the street right alongside Fowler.
Don Jerry testified that he learned sometime in May from
one of his employees that certain employees of Respondent
were attempting to obtain representation by the Teamsters.
Jerry denied that he discussed this matter with any member
of Respondent’s management and specifically denied telling
any of them that if the Teamsters came in, he would take
over the hauling. On the other hand, Jerry admitted telling
La Fountain that if the union organizational drive caused him
any problems, he would just go back into the trucking busi-
ness.
Both Fowler and La Fountain credibly testified concerning
incidents involving Jerry which occurred in May, shortly
after the union authorization cards had been turned in. Dur-
ing one of these, Jerry approached Fowler while he was
working in the yard and told him to move his car, ‘‘Now!’’
Fowler said that he had no problem with that. Jerry retorted
in a challenging manner, ‘‘You better have no problem with
that!’’ He added that he no longer wanted Fowler to drive
through his lot. Respondent’s employees, in the past, had
customarily parked and driven through X-Plo property.
Fowler asked Jerry if the new rule applied solely to him and
Jerry replied in the affirmative.
Fowler walked toward his car to comply with Jerry’s re-
quest but then noticed Aborn nearby, in the shop. He told
Aborn about Jerry’s order but was told that since it was Jer-
ry’s property, nothing could be done about it. Fowler then
moved his car.
La Fountain testified that on the same day that Jerry or-
dered Fowler to move his car, he earlier told La Fountain to
move his car and not to come into the yard again. La Foun-
tain later complained to Aborn about Jerry’s ‘‘getting on
them for no reason whatsoever.’’ Aborn said that he would
talk to Jerry about it.
La Fountain described a second conversation which he had
with Jerry, probably the same day. In this conversation Jerry
accused La Fountain of being to blame for bringing in the
Teamsters. He said he had received a call from Whitten the
night before. He threatened that if the Union got in, he
would take over the trucking again and La Fountain would
not have a job. Apparently La Fountain explained that all he
wanted was better insurance. Jerry then called him a ‘‘dirty,
rotten bastard of a liar,’’ and a thief, accusing him of steal-
ing. La Fountain got in his truck and left.
Pat Delaney, a Whitten employee who witnessed this inci-
dent, testified that Jerry also told La Fountain that Respond-
ent was not going to stand for a Union and would pull out.
He added that if Whitten pulled out, he would start up in the
trucking business again. He called La Fountain a few nasty
names and threatened that he would make sure that he never
worked again. While the complaint does not mention either
X-Plo or Jerry in its allegations, the incidents described
above lend credence to the allegations involving statements
made by Fuller.
In addition to the above-described conversations which
Fuller had with certain employees, he also, one evening in
May, called Fowler by telephone. He asked Fowler whether
he or La Fountain had anything to do with passing out union
cards to employees. Although Fowler stated that he did not
have to answer such questions and immediately hung up,
Fuller’s identification of the two employee organizers estab-
lishes company knowledge.
As a result of the filing of the petition, Respondent sent
Vincent Ammons and Robert Landes to Plattsburgh.
Ammons is a labor relations representative with Intranet, Re-
spondent’s parent company and Landes is an attorney. They
arrived on or about May 21 and remained in Plattsburgh until
May 24. Ammons met with members of Respondent’s Platts-
burgh managerial staff including Aborn and Fuller and in-
structed them on what they could and could not do during
the union organizational campaign. He warned them against
harassing the employees but also advised them to take notes
if anything was brought up about the Union by employees.
Following the meeting with management, Ammons held a
number of meetings with employees in Aborn’s office.
Landes attended some of these meetings but not all. He in-
vited them into the office one or two at a time. After intro-
ductions, Ammons asked them if they realized that there was
a union election going to take place. He then advised them
of their rights and asked them if they had been harassed by
anyone up to that point, particularly by Aborn or Fuller. He
then encouraged them to vote in the election but made it
clear that he did not want to know how they voted or wheth-
er or not they belonged to a union.
All the meetings were conducted the same way. La Foun-
tain and Delaney met with Landes and Ammons at the same
time. After Ammons went through the above-described in-
doctrination, La Fountain asked him who he was. Ammons
told him, identifying Intranet, the parent company, of whom
La Fountain had never heard. Ammons then asked La Foun-
tain if he understood how elections work and La Fountain re-
plied that he did. Ammons asked if La Fountain had had any
problems with Aborn or Fuller during the organizing cam-
paign. As in all the meetings, he was sure that La Fountain
and Delaney understood that no manager was to harass them.
He furnished his phone number to the employees where they
could reach him. He advised them that if there were any im-
proprieties by any managerial personnel, that manager would
be removed, and that included Aborn and Fuller. La Fountain
stated that he had no problems with either Aborn or Fuller.
During the meeting, La Fountain volunteered that he was
a member of the Teamsters. Ammons remarked that though
this information was volunteered by La Fountain, it was
something he did not wish to know because it was irrelevant.
He tried to assure La Fountain that he had not come to
Plattsburgh to intimidate anyone but rather to explain to em-
ployees their rights and to make sure that the election went
well. He promised that if the Union won, Respondent would
negotiate a contract in good faith just as it was supposed to
do. He said that the Company was confident enough that it
had treated its employees fairly and that they would not vote
the Union in. He explained that he wanted to make sure that
every employee voted because ‘‘if you treat people right, you
know they sometimes don’t vote’’ but ‘‘if you treat some-
body badly they will go through snow, mud, and blood to
get to the election poll to vote.’’
613C. I. WHITTEN TRANSFER CO.
7 Fowler testified that Ammons asked him if he knew anything
about attempts at union organization. However, since Ammons
credibly testified that he made the same statements at each of the
meetings, and no other employees testified to being asked a similar
question, I conclude that Fowler confused this question with the one
that Ammons admitted asking, i.e., ‘‘Do you know how a union
election works?’’
La Fountain testified with regard to this meeting in a con-
fused and inconsistent manner. He placed the meeting var-
iously on June 6 to 8 or 14. The record indicates that it oc-
curred on or about May 21. La Fountain claimed that
Landes, at one point during the meeting, announced that he
knew how to break a contract whereupon Ammons told
Landes to shut up. Ammons denied the incident and Delaney,
who was present at the time, did not support La Fountain’s
description of this incident. Although it is possible that the
incident might have occurred as La Fountain described it, I
find it unlikely because there is no evidence that Landes
made a similar statement during any of the several meetings
held with the other employees with whom he and Ammons
spoke.
Further, Landes had 16 years’ experience as an employee
with the NLRB and would not likely have made such a state-
ment. Finally, although it is not likely that a layman, who
is a stranger to labor law, could make up such a statement
out of whole cloth and place it in the month of Respondent’s
attorney, La Fountain was no stranger to the Board’s proc-
esses. Prior to his meeting with Ammons and Landes, on or
about May 21, La Fountain had extensive dealings with the
NLRB, having filed at least four charges. There is, of course,
no quarrel with his right to file charges but when each of
these charges was dismissed, La Fountain was necessarily
advised of the reasons why each charge lacked merit. This
is standard Board procedure, with which I personally have
been familiar for over 30 years. When he appealed each dis-
missal, he was again advised by letter as to why his appeals
were denied. Thus, I find that, as of May 21, La Fountain
had sufficient experience and familiarity with the Act, to be
able to pad the record in his favor. I find that he did so and
that Landes did not make the statement attributed to him by
La Fountain.
La Fountain testified that Landes and Ammons asked him
‘‘what he knew about the Union and stuff.’’ Delaney did not
support La Fountain with regard to this alleged interrogation
and I do not believe it took place. Rather, I credit Ammons
who testified that the question asked was, ‘‘Do you under-
stand how elections work?,’’ to which La Fountain replied,
‘‘Yes, yes, yes, yes.’’ I find this question, of course, nonvio-
lative.
La Fountain testified vaguely and confusedly about Landes
and Ammons: ‘‘And they went on talking about everything,
about moving the trucks out—or if they had to, they would
negotiate. They were just trying to get, you know, informa-
tion out of us that we didn’t know . . . . Yeah, they asked
us everything. All about the Union and about the trucks.
They asked us what we wanted, and I told them what we
wanted was insurance.’’
Delaney was present during this meeting but did not sup-
port La Fountain’s testimony with his own. Although
Ammons held several meetings with other employees, num-
bering perhaps 12, none of them were called by General
Counsel to testify to similar statements made to them which
La Fountain claimed to have been made to him. I conclude
that La Fountain confused the statements about moving the
trucks made earlier to him by Fuller and Jerry with the con-
versation he later had with Ammons and Landes and wrongly
attributed said statements to the latter two individuals. I find
that neither Ammons nor Landes made the remarks quoted
immediately above, and attributed to them by La Fountain.
At one point, La Fountain testified that he and Delaney
told Ammons and Landes that they were both in the Union.
Subsequently, counsel for the General Counsel asked the
leading question:
Q. Do you recall whether either Mr. Landes or Mr.
Ammons asked you or Mr. Delaney if you were in the
Union?
La Fountain replied:
A. Yeah they asked us that.
Subsequently, La Fountain again reversed himself on this
question:
Q. Did you volunteer to myself [Landes] or Vinny
[Ammons], or both of us that you and Pat Delaney
were members of the Union.
A. Yeah. We told you we were members.
Q. You volunteered that though, right?
A. Yes, sir.
Elsewhere, concerning this meeting, La Fountain testified:
A. They [Landes and Ammons] asked us what we
really wanted and I told them we wanted insurance.
However, later during the hearing, La Fountain again con-
tradicted himself:
Q. I didn’t ask you what you really—what the em-
ployees really wanted?
A. Well, I told you what we wanted.
Delaney also testified concerning the meeting attended by
himself, La Fountain, Ammons, and Landes. He stated that
Ammons, at one point, said that he knew who had signed
cards. Although La Fountain did not support Delaney’s testi-
mony with regard to this statement, Ammon’s never denied
having made it and I therefore credit Delaney.
On or about May 21, Ammons also met with Fowler and
conducted the same kind of meeting which he had had with
La Fountain and the other employees.7 He encouraged
Fowler to vote and told him that how he voted was his own
business. He also encouraged Fowler and the other employ-
ees to discuss the Union among themselves. He said if the
Union got in, he would come up and negotiate a contract be-
cause that is how he made his living.
Employee Art Pelkey testified concerning his meeting with
Ammons, which I find was also on or about May 21. Pelkey
testified generally in support of Ammon’s testimony offering
no evidence of 8(a)(1) violations. Where Pelkey stated that
Ammons asked him if he had any problems, I find that he
was referring to Ammon’s question which he admitted ask-
ing all of the employees concerning possible problems with
614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Hart was not called to testify.
Aborn, Fuller, or other members of management during the
union organizing campaign.
Within a day or two of the meetings with employees, de-
scribed above, both Ammons and Landes left Plattsburgh.
The record indicates that they met only once with the em-
ployees and not thereafter. This fact indicates that Landes
and Ammons were in Plattsburgh, on or about May 21, for
the limited purpose of advising Respondent’s management
and employees of their rights and to explain the election
process. If their purpose had been to participate in a pro-
longed antiunion campaign, they would surely have visited
Plattsburgh several times and spoken to the employees on
numerous occasions prior to the election.
On May 23, the Resident Office issued a notice of rep-
resentation hearing scheduling the hearing for June 6. Landes
and Ammons arrived in Plattsburgh a day or two before the
scheduled hearing to participate in it. The hearing did not
take place, however. Instead, the Union and Respondent exe-
cuted a Stipulated Election Agreement calling for a June 22
date for the election and a unit which excluded helpers (rid-
ers) and guards. Both Landes and Ammons left Plattsburgh
after the election conference, Landes on the afternoon of
June 6, Ammons on the morning of June 7. There is no indi-
cation of contact between them and the rank-and-file employ-
ees on or about that date.
About the first week in June, Respondent gave an em-
ployee appreciation dinner attended by Respondent’s employ-
ees and their wives and, of course, members of management.
Safety awards and gifts were distributed to employees. Dur-
ing the course of the evening, Fuller engaged Debra Fowler
in conversation several times. In one of these conversations,
toward the end of the evening, Fuller told Fowler that he did
not know how much influence she had with her husband but
that he strongly suggested that she encourage him to back
out of ‘‘this union business’’ because he would be without
a job one way or another. He said that if the Union came
in, the doors would be closed and if the Union did not get
in, he would be the first one down the road. Fuller indicated
that he was aware that Michael Fowler was one of the indi-
viduals who ‘‘instigated the union campaign’’ and that ‘‘he
and La Fountain were the culprits.’’ Fuller admitted that he
had attended the dinner, sat with Debra and Mike Fowler and
Mr. and Mrs. La Fountain at the same table and that he had
conversations with Mr. and Mrs. Fowler. He denied, how-
ever, that he made any mention of Fowler or La Fountain in
connection with the union organizing or the union campaign.
I found Debra Fowler a convincing witness and credit her
testimony with respect to the content of her conversation
with Fuller.
La Fountain testified concerning an incident which oc-
curred on June 11. On that day, La Fountain pulled out of
the terminal after giving his truck a full check inspection in-
cluding brakes and tires. After driving a mile or two, he hap-
pened to look out the window of his cab and noticed,
through his right rearview mirror, a spot on his right rear
tire. La Fountain pulled over to the side of the road, about
200 feet from Nadim’s, a combination luncheonette and con-
venience store, and got out to examine the tire. He found that
he had gone through a water puddle which had made a spot
on the tire. He then got back in his truck and drove on, never
having gotten 5 feet from the truck.
According to Fuller, on June 11 or 12, Brian Hart,8 the
dispatcher, reported to him that he had seen La Fountain in
Nadim’s. Upon hearing this report, Fuller typed up an em-
ployee warning report. On the document he stated:
Unit 323 TrL 58131 was parked with class A explo-
sive at Nadim’s store Plattsburgh, N.Y. This is a defi-
nite work rule violation per A posted notice.
According to Fuller, when La Fountain returned from his
trip, he gave him the warning. La Fountain claimed that he
had stopped the truck to check the air in the tire which he
found to be soft. Fuller did not believe La Fountain, how-
ever, because he should have discovered any tire problem
during the obligatory pretrip inspection, and if the tire sud-
denly turned soft within a mile or two of the terminal, he
should have returned to the terminal and not proceeded on
a soft tire to Champlain, New York.
When Fuller gave La Fountain the warning report on June
12, he was upset, but made no comment. He did, however,
write on the form, in space provided for an employee state-
ment:
Stop to check out tire. I put air in tire at Champlain,
NY.
According to La Fountain, when he received the warning,
Fuller told him that somebody had called up and told him
that La Fountain was at the store. La Fountain replied that
there had been an emergency, that he had to check his trail-
er’s right rear tire, and that he was not in the store’s parking
area but on the side of the road. La Fountain denied going
into Nadim’s. He asked Fuller, ‘‘Did you see me there? Did
you come around the trailer?’’ He argued, ‘‘You would have
seen me, if you had come around the trailer.’’ He then ex-
plained to Fuller that he had not parked the trailer but had
merely stopped to examine the tire and found the wet spots.
La Fountain testified that as he explained what had occurred,
Fuller wrote it down ‘‘on that paper.’’ Then La Fountain
‘‘wrote on the paper the same thing I told you, that I had
to stop and check my tire on the right-hand side. If they
would have walked around, they would have found me
there.’’
Fuller testified that he gave La Fountain the warning be-
cause he violated Federal regulations and a company notice
prohibiting any truck, carrying a load of explosives, from
parking within 300 feet of a populated area. He stated that
La Fountain was aware of this regulation because it is con-
tained in the Federal Regulation Handbook which was issued
to him and to all drivers, but ignored the regulation, parked
his truck within the prohibited area, and went into Nadim’s,
presumably to order something at the restaurant which was
well known and used by Fuller and other employees of Re-
spondent.
La Fountain testified that he knew of the rule: ‘‘You don’t
stop nowhere when you’re carrying explosives’’ but that he
did so because he thought he might have a problem with his
tire, an emergency which justified his stopping to investigate.
He pleads that although the tire proved to be only wet and
not defective, he should not have been given a warning.
615C. I. WHITTEN TRANSFER CO.
9 Hart is not alleged to be a supervisor.
The June 12 warning to La Fountain was not alleged in
the complaint as a separate violation of the Act. However,
Aborn testified that it was a consideration in his ultimate de-
cision to discharge La Fountain for an otherwise unrelated
incident. It may also be considered in terms of evidence of
animosity toward a known union adherent or as part of a
plan to build a case against him as pretext for his ultimate
discharge.
The incident poses several difficult questions. According
to Fuller, Brian Hart9 told him that he had seen La Fountain
in Nadim’s. La Fountain denied this and testified that he
never was more than 5 feet from his truck. The record is si-
lent as to why Hart was never called to testify. He should
have been called by Respondent to support Fuller’s testi-
mony or by General Counsel to support La Fountain’s testi-
mony.
A second consideration is La Fountain’s testimony that
when he was given the warning report and he explained his
position as to what had occurred, Fuller wrote it down ‘‘on
the paper’’ and La Fountain did the same. However, the only
exhibit in the record is the warning report itself. It does not
bear any handwriting other than La Fountain’s, and that does
not mention wet spots which would imply that the tire was
in good condition but, on the contrary, states that La Foun-
tain put air in the tire at Champlain which would imply that
the tire was soft and that is what he told Fuller at the time.
Thus, it would appear that he told Fuller one thing at the
time he received the warning, which Fuller rejected, and of-
fered a different set of facts during his testimony. This con-
sideration would tend to support Respondent.
A third consideration is that Respondent placed in the
record all of the warnings to employees that it had in its
files. There was only one that predated the June 12 warning
to La Fountain and that concerned an accident in which one
of Respondent’s drivers damaged another company’s equip-
ment and was found to be at fault. Of five warning reports
issued by Respondent in its entire history, three of them were
issued against the alleged discriminatees, during the union
campaign or within 2–3 months after the election. This third
consideration favor’s General Counsel’s case.
With regard to the warning to La Fountain dated June 11,
I find that standing alone, the evidence is inconclusive as to
whether it better supports the General Counsel’s case or that
of Respondent. Either La Fountain was in Nadim’s, a clear
breach of regulations, and the warning given to him based
on legitimate grounds and for legitimate purposes, or he
stopped momentarily by the side of the road for the purpose
of checking a tire and was undeserving of the warning which
may have been given to him for the purpose of building a
case against him to be used later as a pretext for his dis-
charge for discriminatory reasons. I conclude that the warn-
ing was based on Fuller’s honest belief that La Fountain had
parked his truck and gone into the restaurant.
On June 21 Ammons and Landes arrived in Plattsburgh to
attend the election scheduled for the following day. In ad-
vance of his visit, Ammons advised local management that
he did not wish to have any meetings with the employees
and none were held.
The polls opened at 2 p.m. La Fountain was the Union’s
observer and the Employer’s observer was an employee
named William Shoemaker. The Board agent conducting the
election was Jon B. Mackle. The election went without inci-
dent and the tally of ballots indicated the Union had lost 12
to 4. La Fountain, Shoemaker, and Mackle signed both the
tally of ballots and the certification on conduct of election.
According to La Fountain, after the count, and after he
signed the two documents, he went over to Landes, shook his
hand and congratulated him on Respondent’s victory, where-
upon Landes allegedly said, ‘‘I wish you luck, Jim, but you
won’t be here long.’’ La Fountain testified that he just
looked at Landes and ‘‘that was it.’’
La Fountain acknowledged that besides Landes, Ammons,
and Aborn were present at the election. He also testified, at
one point, that he did not notice if a lot of other people were
standing around besides Landes and, at another point, that
‘‘Everybody was just moving around, talking. I know I
didn’t keep track of where everything [sic] was . . . . Every-
body was shaking hands.’’ La Fountain testified that he
could not remember, when he shook Landes’ hand, whether
they were in the lunchroom where the election had taken
place or in the next room. Elsewhere in the record he testi-
fied that they were in the election room when the handshake
and remark occurred and he remembered that clearly. La
Fountain said that at the time, everybody was shaking hands
with everybody and he did not think anybody else heard
Landes’ words.
La Fountain testified that in the days following the elec-
tion, he probably told a couple of employees what Landes
had said. General Counsel called no witnesses to substantiate
this testimony. La Fountain also testified that what Landes
had said was very important but he did not advise the union
representative about it because ‘‘I just don’t let nothing both-
er me like that.’’
Landes denied making the statement attributed to him by
La Fountain and stated that he could not recall shaking hands
with him. He pointed out that having worked for the Board
for 16 years, his experience has taught him that it is not
good practice to talk to employees, particularly to an ob-
server for the Union, and he knew that La Fountain was the
Union’s observer. Landes testified that once the ballots had
been counted, within less than a minute, he exited the lunch-
room voting area and proceeded to Aborn’s office with no
conversation with La Fountain taking place. Landes said that
he spoke to none of the employees except perhaps Shoe-
maker, the Company’s observer and may have shaken hands
with him as well.
Among those present for the count were the two observers,
Landes, Ammons, several employees, members of manage-
ment, a union official, and, of course, the Board agent.
Ammons testified that during the election he, Landes, Aborn,
Fuller, and, for a time, Jerry, all remained physically in
Aborn’s office and none of them except Jerry was permitted
to leave. Ammons also had the windows facing the drivers’
room and dispatch office papered over so that no one could
see in or out.
According to Ammons, at the conclusion of the election,
the Board agent counted the ballots and there were a lot of
people there for the count. At the table, in the lunchroom
were the Board agent with the observers on either side. In
Aborn’s office, at the door, looking into the lunchroom were
Landes, Ammons, Aborn, Jerry, and numerous drivers. After
the count and the announcement of results by the Board
616 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Sometimes identified in the record as Scott Pelkey.
agent, the members of management began to retreat back
into Aborn’s office, as Ammons had previously instructed
them to do, in order to avoid problems. As Ammons started
back into Aborn’s office, he physically reached up and
grabbed Aborn’s hand and started to take him along. La
Fountain stood up from the table, turned and shook Aborn’s
hand. There was no verbal exchange. Aborn then shook
Shoemaker’s hand as Ammons once again grabbed Aborn by
the arm and pulled him along. By this time, Landes had
moved away to the door between the dispatch office and
Aborn’s office. Ammons, Fuller, Aborn, and Landes all went
into Aborn’s office. The door was shut and the management
officials and their representatives, by themselves, except for
Jerry, discussed the outcome of the election.
Aborn testified, with regard to the election, that he was not
in the room where the election took place while the ballots
were being counted and the results announced. Rather, he
was in the doorway watching the proceedings. When the
Board agent announced that the Union had lost the election,
La Fountain reached up from the table where he was still
seated to shake Aborn’s hand. La Fountain said, ‘‘Back to
work,’’ nothing further. Aborn then stepped into the election
room to shake Shoemaker’s hand. Ammons then grabbed
Aborn’s arm and they went to Aborn’s office as did Landes.
According to Aborn, Landes was not in the election room
during the count.
Driver Art Pelkey10 was called to testify as to the events
of June 22. Pelkey testified that he was not in the room
where the count took place but watched the count from the
adjoining room. He also testified that he believed that Landes
was in the same room as La Fountain, Shoemaker and the
Board agent, ‘‘right by the wall, right there by Mr. Aborn’s
office’’ while the ballots were being counted. After the
count, everyone in management including Landes went into
Aborn’s office.
Pelkey testified that he did not see Landes talk to La
Fountain and that if Landes had done so, Pelkey would have
noticed it. On the other hand, Pelkey also testified that he
did not see La Fountain speak to Aborn or anyone else. Ac-
cording to Pelkey, La Fountain left, immediately after the
count, with another driver who gave him a lift in his pickup
truck to the other parking lot.
After the count, Pelkey joined the management personnel
in Aborn’s office. He remained for just a minute, however,
to let them know that he was leaving.
Taking all of the testimony offered by the above witnesses
into consideration, I conclude that Landes did not make the
threatening statement attributed to him by La Fountain in his
uncorroborated testimony.
According to La Fountain and Delaney, a day or two after
the election, there was supposed to be a group meeting of
drivers which apparently was never held. Delaney entered
Aborn’s office to ask about the meeting. Aborn said that
there was no meeting and he was lucky he had not been fired
for signing a card. A similar discussion between Delaney and
Aborn occurred about 2 weeks later.
Back on May 31, Harold Parker, an acquaintance of Fuller
and Fred Marks, an employee of Respondent, filed an appli-
cation for employment with Respondent. On June 22 he vis-
ited the offices of Ron Fuller and Brian Hart, the dispatcher,
and filled out tax forms and similar forms required for em-
ployment. The position for which he applied was
laborer/rider/guard. Fuller told him he would be hired on a
part-time basis.
On June 25, Parker started working for Respondent. On
this, his first day on the job, Aborn told him what his sched-
ule was, then asked him how he felt about unions. Parker re-
plied that he had been raised in Saranac Lake, worked in
nonunion jobs while going to high school and college, then
spent the rest of his years in the air force. He said that he
was unfamiliar with unions and had no feeling, one way or
the other about them. Aborn did not ask Parker any more
questions and the conversation ended.
La Fountain was disappointed in the outcome of the elec-
tion but did not give up. He talked to several employees in
the unit who had attended meetings with Ammons and
Landes back in May, similar to the one he had attended
along with Pat Delaney. He asked them what had occurred.
Although he was told that some of them did not like having
to meet one on one with Landes and Ammons, none of them
offered any specifics as to what had occurred.
Not satisfied with the results of his investigation, and still
angry with Landes and Ammons for holding the meetings
with employees, which La Fountain felt had undermined the
Union’s efforts, La Fountain, on June 25, contacted five state
senators concerning Landes whom he identified in his letters
as a former employee of the NLRB and a union buster. He
accused Landes of using skills learned while employed by
the Board from which he had retired, to bust unions and
cause employees their jobs. He urged an investigation of
both Landes and the Respondent and argued that Landes
should not be able to draw retirement. He sent copies of his
letters to both New York senators and to his congressman.
One or more of these contacts resulted in a complaint being
filed with the New York State Department of Labor in Al-
bany and the NLRB in Washington which forwarded it to the
Buffalo Regional Office. The complaint against Landes was
eventually dismissed on the grounds that after being out of
the Agency for 2 years, he was free to practice law. Before
sending the letters, La Fountain told several employees what
he intended to do, and according to his testimony, they
agreed that it should be done.
Shortly after La Fountain wrote to his representatives
about Landes, a representative of the New York State Labor
Department, called Aborn to inquire what Landes’ affiliation
with Respondent was. Aborn told the investigator that
Landes was Respondent’s attorney. The same representative
called Aborn a second time for a reason forgotten by Aborn,
but not thereafter.
About this time, probably at the next union meeting,
which would have been Saturday, July 14, La Fountain asked
the president of the Local, Kenneth Ramsey, to check up on
Ammons to see if he was a retired Teamsters member. There
is some evidence that La Fountain intended to try to interfere
with Ammons’ pension rights but he denied it. These efforts
eventually came to Respondent’s attention.
A week or two after the election, according to La Foun-
tain, Aborn called him into the office. He said, ‘‘Jim, I
walked the floor for two weeks and I hadn’t slept for two
weeks, all because you tried to get the Union in.’’ Aborn
went on to say that both he and Fuller would have lost their
jobs if the Union had won the election. He explained that the
617C. I. WHITTEN TRANSFER CO.
11 Aborn denied making this statement. I credit La Fountain.
12 Aborn admitted having a conversation with La Fountain about
his wearing a Teamsters hat but he placed the conversation in May
and described it in far more friendly terms. Neither General Counsel
nor Respondent called witnesses to testify as to when La Fountain
first began wearing the Whitten hat but I cannot believe he would
suddenly do so in May during the union campaign. I credit La Foun-
tain.
Company had told him that they would have lost their jobs
because the Union was trying to get in and they should have
known about it. La Fountain replied that Aborn knew that La
Fountain was going to try to get the Union in because he had
told him that he was going to do it. Aborn then said that he
did not want to hear La Fountain talk union again11 and
added, ‘‘You’re not wearing that union hat around here.’’ La
Fountain, who had been wearing the Teamsters hat since he
was hired, replied that Aborn should then buy him a hat to
replace the Teamsters hat and suggested that Aborn get him
‘‘one of them C. I. Whitten hats, one of the white ones with
the red trim in the front. Aborn subsequently got La Fountain
the hat he requested, and he wore it thereafter.12
In denying that he discussed the Union with La Fountain
after the election, Aborn testified that there would not have
been any basis for it, that he felt that Respondent had won
the election and as far as he was concerned, it was over and
it was business as usual. Since I have found La Fountain’s
version of the conversation to be credible, I also find that the
subject of his involvement in union activity was still very
much alive in Aborn’s mind as it was in La Fountain’s.
Harold Parker testified that during his employment with
Respondent, which began June 22–25, he had several discus-
sions with Fuller about the Union. On one occasion, shortly
after he started working, he and Fuller had just returned from
a trip when Fuller asked him whether he had been briefed
about the Union by La Fountain and Fowler. Parker replied
that he had not. At the time, there was a lot of talk among
the employees about the election and about the Union. Short-
ly after this conversation occurred, a second conversation
took place between the same two individuals. The same
question was asked by Fuller and the same response given
by Parker. The interrogation of Parker as to the union activi-
ties of La Fountain and Fowler must be considered in terms
of Aborn’s earlier prohibition against discussion of the
Union.
La Fountain testified that 2 or 3 weeks after the election,
which would make it on or about July 13 through 20, Jerry
approached La Fountain near the X-Plo garage just as he was
about to leave on a trip and said to him, out of the blue,
‘‘Jim, I want to know exactly if you’re to blame for the
Union trying to come in here.’’ La Fountain replied, ‘‘I’m
going to tell you like I told you before, that we are hard up
for insurance. We need insurance. We don’t have no insur-
ance.’’ Jerry said, ‘‘Well, that’s it.’’ La Fountain got into his
truck and drove away.
Although there is no evidence to indicate that Jerry’s ques-
tioning of La Fountain was at the behest of Respondent and
the complaint does not allege interrogation by Jerry in viola-
tion of the Act, in light of the fact that both X-Plo and Re-
spondent have demonstrated a mutual interest in keeping the
Union out, I find it more likely than not that any information
about Respondent’s employees’ union activities obtained by
Jerry would certainly be passed on to Respondent’s manage-
ment. Thus, I find that La Fountain’s statement to Jerry was
not only an admission that he was responsible for the union
campaign, which was no great revelation, but also an indica-
tion, since the employees still had no insurance, that he in-
tended to continue his campaign to seek union representation.
On July 20, Aborn put an ad in the help wanted section
of the Press-Republican for a local driver. He had done so
frequently in the past. Sometimes the ad was for ‘‘local driv-
ers,’’ sometimes it was just for ‘‘drivers’’ and sometimes it
was for ‘‘team operation drivers.’’ Aborn testified that the ad
he placed in the paper on July 20 was designated ‘‘local
driver’’ because in the past the designation ‘‘driver’’ had not
been effective. He believed by designating the help wanted
ad as ‘‘local driver,’’ he would attract those drivers who
would not accept cross country hauling jobs or jobs where
they would be away for 30 days at a time, but would accept
the kind of jobs Respondent had to offer. According to
Aborn, he was just trying to see who would apply.
Sometime in July, driver Art Pelkey had a conversation
with Aborn about long-distance trips, in particular trips to
Halifax, about 2000 miles turnaround. He had been assigned
a number of them recently, in fact two-thirds of them, so he
asked Aborn if there was not someone else who could do
these trips too. He complained that it was basically Trombley
and himself, together, taking the long trips. He complained
to Aborn that of the last dozen trips to Halifax, he had been
on every one and he thought it was about time somebody
else should take a turn. Aborn agreed with Pelkey that they
were all drivers and they should all take a few more of the
longer trips. He said that he would see to it that others did
take a turn. He reasoned further that the longer trips were no
hardship because they paid a lot more. Trombley was present
during this conversation.
Pelkey testified that he could not refuse to take the runs
or he would be discharged. He had been hired to do what-
ever was required and he had been told this by Aborn when
he was first hired. He had never refused a load nor had any
other driver unless it was a matter of sickness or something
like that. He also testified that he or any driver could easily
find out where the other drivers were going and that he was
unaware that Fowler was a local driver or even that there ex-
isted a classification called ‘‘local driver.’’
After this conversation with Aborn, Pelkey testified, he
made fewer long trips to Halifax and Newfoundland, while
others made more than they had before. The number of local
trips which Pelkey was assigned increased after his discus-
sion with Aborn.
On July 26, prompted by rumors that he would be having
to go on more road trips, Fowler went in to talk with Aborn
about a proposed trip to Halifax. Previously, there had been
several discussions during which Fowler had been requested
to take several long trips which he declined and which were
subsequently reassigned to other drivers while Fowler drove
locally.
On this occasion, Fowler objected to being sent to Halifax
and asked Aborn, ‘‘What about my status as a local driver?’’
Aborn replied, ‘‘We never made that agreement.’’ Fowler
said, ‘‘That’s not true and you know it.’’ Aborn continued,
‘‘Besides, we never hire local drivers. Local, to us, is east
of the Mississippi.’’ He said that everyone was going to take
road trips.
618 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Also on July 26, during the same or another conversation,
according to Fowler, Aborn advised him that he was no
longer going to be paid as he had been up until then. That
is, he would no longer be paid a minimum of 60 hours per
week even when he actually worked fewer hours. From then
on, he was going to be paid strictly by the timeclock as
would be the other drivers. Since Aborn denied, throughout
his testimony, that he ever agreed to pay Fowler a straight
60-hour-per-week wage and, in fact, had never done so,
Aborn, by implication, denied Fowler’s version of this con-
versation. Since the payroll records do not support Fowler’s
claim that he received a guaranteed 60 hours per week, I do
not credit Fowler with regard to this conversation. I do credit
his testimony, however, with regard to his claim that Aborn
warned him that he and the other drivers would be hence-
forth paid by the clock.
On August 1, Respondent issued a memorandum ‘‘To All
Employees.’’ It contained 13 rules. The issuance of the
memorandum was not unusual. The Respondent had issued
many such memoranda in the past containing rules, guide-
lines, and reminders. Two rules contained in the August 1
memorandum are relevant to the instant case. Rule 1 pro-
vided for all employees doing local work to punch in and out
on the timeclock. This rule adversely affected Fowler who
had occasionally been permitted to go home when he arrived
back early from a trip and who also had been permitted
sometimes to report late. Rule 9 provided that all team loads
be divided among the drivers. This rule also adversely af-
fected Fowler because it meant that he would henceforth
have to take long-distance trips along with the other drivers
whereas prior to August 1, he had been assigned very few
overnight trips.
Under rule 1, all employees doing local work, that is ev-
eryone coming in and going out during the day, was required
to punch the clock; in the morning, going on and returning
from breaks, before and after lunch, and in the evening. This
was for yard personnel. In addition, drivers were initially re-
quired to punch in and out when they came in or left on
trips. Eventually, after about 8 months, drivers were taken
off the clock and they used their logs to keep track of time.
Aborn testified that he had hired certain employees to run
the complete system. They would leave Plattsburgh and drive
to various places, taking sometimes 30 days. Toward the first
of August, Pelkey and Trombely had made close to six back-
to-back trips to Halifax. Finally, as noted earlier, they came
into Aborn’s office and complained that they were always
doing all of the long hauls. They wanted to be home and
asked why some of the other drivers could not take some of
the long hauls. Aborn agreed, and stated that from then on,
team loads would be divided.
Aborn testified that issuing rule 9 of the memorandum did
not constitute a change in policy. He always tried to accom-
modate the drivers, particularly Fowler, who he knew liked
to be at home as much as possible. He said he accommo-
dated Fowler until the other employees complained about
their doing all the long runs and Fowler not doing any. At
this point, he felt that he had no choice but to distribute the
longer trips more equitably.
After August 1, Aborn tried to rotate the long trips among
all the drivers and divide those trips equally, as much as pos-
sible. Much, however, depended on the availability of drivers
at the time assignments were made. Assignments on an even
basis were also made difficult by the fact that, about August
1, a large number of trips to Halifax and Newfoundland had
to be scheduled. Some of the Newfoundland trips were to
places that Respondent’s drivers had never been before. In
order to better understand the demands of the new trips on
the drivers, Aborn decided to take some of these trips him-
self along with other drivers. He took three back-to-back
loads to Newfoundland because he did not want to send driv-
ers who had never been there before, without being able to
tell them in advance what they might encounter. So, after
making three trips himself to Newfoundland, to gain personal
experience, Aborn was in a position to tell them almost
‘‘hour for hour,’’ barring any breakdowns, how many miles
the trip was, how long each segment would take, and what
the various expenses would be.
La Fountain testified that in early August, he received a
phone call at home from Fuller. It was about 10:30 p.m. and
he had just gotten in from a run. Fuller sounded intoxicated.
He told La Fountain that he did not want the Union in and
he did not want to hear La Fountain talk about the Union.
La Fountain replied, ‘‘Ronnie, just hang up, forget about it.
I’m going to bed.’’ Fuller told La Fountain that if he dis-
cussed the Union anymore, it would mean his job.
La Fountain went in to talk with Aborn concerning
Fuller’s call. He complained that he did not think it was right
for Fuller to be harassing him and he did not want it to hap-
pen again. Aborn said he would have a talk with Fuller.
On August 7, La Fountain was instructed to use a particu-
lar yard tractor to shuttle trailers to the magazine. He was
given this instruction in written form. The reason for the in-
struction was to keep Respondent’s road units from being
used off the road. Contrary to the instruction, La Fountain
used a different tractor, a road tractor, off the road. As a re-
sult, Fuller gave Fountain an employee warning report con-
taining the statement, ‘‘This originates as a warning, that
failure to comply with instructions, disciplinary action up to
and including discharge will result.’’
In the space provided on the employee warning report for
the employee’s statement, La Fountain checked the box
marked: ‘‘I do not agree with the company statement,’’ and
added, ‘‘I was not told about not using over-the-road tractors
to move trailers from the mag. to the yard or from the yard
to the mag. 324 tractor didn’t T round right, so I used 323
and the brakes gave but the mechanic in the shop put a red
tag on after he checked it out.’’ This was the first warning
given to La Fountian since June 12. The record contains at
least two previous incidents of discipline, one resulting in a
warning to a driver for damaging another company’s vehicle
and one discharge of a driver for abandoning his vehicle out
on the highway.
Fuller testified that the warning was given to La Fountain
because he disobeyed instructions and failed to notify Fuller
that there was a problem with carrying them out.
The question again is whether this warning was a legiti-
mate reflection of Fuller’s concern that his orders be fol-
lowed and that over-the-road vehicles not be used between
the magazine and the terminal on that secondary road, or
whether, in light of the demonstrated evidence of animus on
the part of Fuller toward La Fountain and his union activi-
ties, the warning should be considered pure harassment or a
further attempt to build a pretextual case against La Fountain
for discharge at a later date. This warning was not alleged
619C. I. WHITTEN TRANSFER CO.
13 Richard Veen a part-time driver, testified that normally he
would leave and return the same day but occasionally would have
Continued
as a violation in the complaint and I find that there is insuffi-
cient evidence to warrant the conclusion that its issuance was
discriminatorily motivated.
By late August, according to Fowler, the atmosphere had
continued to deteriorate. There remained a certain amount of
animosity among individuals and he felt that there was no
sense to it since the Union had not been voted in. He went
to see Aborn about it. He suggested that they put the matter
of the Union behind them. He explained that the only reason
he tried to get the Union in was to get security for his fam-
ily. He commented that he hoped that Aborn did not feel any
animosity toward him. Aborn replied sarcastically, ‘‘Animos-
ity? Why should I feel any animosity? I didn’t sleep for three
weeks. It cost the company twelve thousand dollars to fight
this union thing, and I almost lost my job. Why should I feel
animosity?’’ Fowler replied that he was sorry that Aborn felt
that way and said that he would continue to do the best job
that he could.
In early September, one morning about 5 a.m. La Fountain
was scheduled to go out on a run. When he arrived at the
terminal, however, he could not find the tractor that had been
assigned to him. It was not in the yard. He then called Fuller
at home. He told Fuller that he was going to call the main
dispatch office in West Virginia, to find out what happened
to his truck. Fuller told La Fountain not to do that but to
just take another tractor. As La Fountain was checking out
a second tractor, one of the other employees stopped him and
told him not to take that one because it had been set up for
someone else. At this time, Fuller arrived at the yard and,
clearly upset about La Fountain’s threat to call the home of-
fice, told La Fountain that he was fired. He gave no expla-
nation or reason why he was firing La Fountain but appar-
ently he was displeased with La Fountain’s threat to call the
home office. La Fountain went home.
About 10 a.m., Aborn called La Fountain to come in to
the terminal office. When La Fountain arrived, Aborn called
Fuller in also. He told Fuller, in La Fountain’s presence, that
he had no business firing anybody. He told La Fountain that
any problems with vehicles or anything else was to be solved
locally. La Fountain then returned to work and was paid for
that day.
On September 5, about 7:30 a.m., Brian Hart reported to
work and informed Fuller that he had seen Fowler’s truck
parked unattended at a local store. Fuller told Hart to fill out
an employee warning report, which he did. When Fowler re-
turned from his trip on September 7, Hart handed him the
warning. It states:
On 9/5/90 Mr. Fowler stopped [at] local store, down the
street from terminal with hazardous material. The load
was unattended while Mr. Fowler was in the store.
Fowler refused to sign the warning.
Fuller testified credibly that to park a placarded vehicle
where Fowler’s truck had been parked was a violation and
a company could only sustain so many such infractions with-
in a certain period of time before the government would pull
its permit to haul explosives or hazardous materials. Other
than receiving the warning report, no other disciplinary ac-
tion was taken against Fowler either for the incident or for
his refusal to sign the warning.
After the posting of the August 1 memorandum about all
team loads being divided among the drivers, Fowler was re-
quired to take only one trip, that to Nova Scotia. Then, on
or about Thursday, September 20, Aborn became aware of
a trip to Newfoundland. It was to be delivered Wednesday
of the following week, so he called Fuller into his office and
told him that since most of the drivers had been on long
loads, back to back, he and Fuller were going to have to start
splitting up the longer trips among the other drivers. He said
that he was going to put Michael Fowler on the Newfound-
land trip and asked Fuller to bring him in. Fuller did so.
When Fowler came in, Aborn told him that he was putting
him on the Newfoundland trip in order to split up the long
loads among the drivers. When Fowler asked what the trip
entailed, Aborn told him that he would be leaving at 2 a.m
the following Monday and would arrive at Sidney at 6 a.m.
the following day. That afternoon he would purchase his
ticket and would be loaded on a freighter. The freighter was
scheduled to sail at 8 p.m. and dock at Port of Bass about
1 o’clock. He was then to drive almost 500 miles across
Newfoundland to his destination where he would be met by
people who would take him to the site where he would help
them unload. He was to return empty, taking the ferry back,
and was expected back at the terminal Friday at midnight.
In addition to giving Fowler directions for the trip, Aborn
told him how he would be paid. He told him that he would
be paid from the time he left until the time he got back, in-
cluding sleeping time on the freighter. He was also to receive
money to eat on the freighter. When Aborn was through with
his instructions to Fowler, he asked him if he understood.
Fowler answered noncommittally, ‘‘I understand what your
saying,’’ then walked out.
That evening, Fowler discussed the Newfoundland assign-
ment with his wife. They decided that since Fowler had de-
termined not to return to Anchor Motor Freight in order to
avoid over-the-road trips, accepting the Newfoundland as-
signment would set a dangerous precedent. They agreed that
he would not take the trip.
About 6 a.m., Friday, September 21, Fowler reported to
the terminal for work. No one was there so he wrote a note
which said, ‘‘I cannot go to Newfoundland,’’ then signed it
and dropped it in the mailbox. He then drove off on a trip
for which he had been scheduled.
When Fowler returned early that afternoon, Fuller ap-
proached him and verified the fact that he had written the
note. Fuller had already shown it to Aborn. He then told
Fowler that Aborn wanted to see him. Fowler and Aborn dis-
cussed the problem briefly. Fowler stated bluntly that he was
just not going to Newfoundland. He said he was a local driv-
er and did not want to be away from his family that long.
Aborn replied, ‘‘Notwithstanding, your refusal to go is per-
ceived as a voluntary quit. Go clean out your truck.’’ He
added that Fowler was a good driver and he would write him
a recommendation if he needed one. He said he was sorry
things happened like this but that was his policy. He then
sent someone along to watch Fowler clean out his truck. Be-
fore he left, Fowler asked for a discharge notice and Aborn
advised him that he would receive one in the mail.13
620 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
overnight trips. He had made one trip to Newfoundland and six to
eight trips to Nova Scotia. On one occasion Fuller asked Veen if he
wanted to go to Newfoundland. Veen declined, that ended the con-
versation, Fuller made other arrangements and Veen was not dis-
ciplined. He could not recall, however, if this incident occurred prior
to or after the issuance of the August 1 memorandum. Veen testified
that if Fuller had told him that he had no other driver available,
Veen would have taken the trip. He told this to management at the
time.
The record reveals that Respondent, in February 1989, discharged
another employee, Lee Sabin, for refusal to take an assignment.
La Fountain testified that he had never been present when a driver
refused an assignment but that driver Billy Shoemaker, in October,
told him that he had refused a trip to Newfoundland because he was
afraid of the water and had not been disciplined for his refusal.
Shoemaker was not called to testify and I choose not to rely on La
Fountain’s hearsay testimony for the truth of the matter.
I conclude that the evidence is insufficient to warrant the conclu-
sion that Fowler was receiving disparate treatment. On the contrary,
it would appear that whereas Fowler had received more favorable
treatment before August 1, thereafter, at the behest of other drivers,
and for good cause shown, he was treated more like them.
14 La Fountain denied that he was ever instructed by Aborn or
Fuller that if he had a problem on the border, not to get into any
discussions with anybody, but just to call Brian or dispatch. Fuller
testified, however, that drivers are never to personally call the broker
concerning problems but rather have the dispatcher do this. Fowler
supported La Fountain’s testimony, that he was never told not to
contact the broker directly. He added, however, that he knew he was
not supposed to get into arguments with personnel at the border.
Pelkey supported Fuller’s testimony as did Aborn. I credit Respond-
ent’s witnesses on this matter but find that occasionally, drivers did,
in fact, contact Livingston’s office.
Fowler had been scheduled to go to Newfoundland with
either La Fountain or Witherbee because those were the other
two drivers that had sufficient hours to complete the run.
When Fowler refused to take the run, La Fountain and
Witherbee took the trip together.
La Fountain testified that as late as 4-6 months after the
election his fellow employees were still asking him about the
possibility of the Union getting in. He advised them that they
would have to wait another year or two before they could
have another vote. La Fountain did not name any of the em-
ployees with whom he had these conversations.
Another incident occurred in mid-November. According to
driver Richard Veen, he and Aborn were returning from
Belle Isles. A stretch of road was closed and they had to
drive on the service road which was rough. Veen happened
to mention to Aborn, at that time, that La Fountain had once
told him that he was driving too fast on that stretch of road.
Aborn commented, ‘‘Well, I don’t know about Jim La Foun-
tain, whether this union bullshit is going to start up again or
not.’’ This statement is alleged in the complaint as interroga-
tion in violation of Section 8(a)(1).
On November 20, La Fountain was scheduled to make a
delivery from Plattsburgh to 10 miles on the other side of
Montreal. He left the terminal about 7:15 a.m. and arrived
at the border in about half an hour. About 8 a.m., when the
broker’s office opened, La Fountain called up and asked for
a runner to be sent over to pick up his paperwork. The run-
ner is supposed to take the driver’s paperwork to the Living-
ston Broker’s office where the clericals work on it, then clear
it through customs. They then receive the processed papers
back from customs and return them to the driver, thus ena-
bling him to pass on through to Canada to deliver his load.
On this occasion, the runner came over and picked up La
Fountain’s paperwork and returned with it to the office of
Livingston Brokers. When La Fountain had not gotten his
papers back from Livingston by 9:30 a.m., he called his dis-
patcher and reported to Brian Hart that he had not yet gotten
his papers back. Hart advised La Fountain to go to customs
and see if Livingston had yet presented them to customs. La
Fountain did so and was told that the papers had not yet
been presented. When La Fountain reported this fact back to
Hart, Hart said, ‘‘That’s funny. They [Livingston] told me
your papers were already cleared.’’ La Fountain commented
that somebody was lying.
La Fountain then returned to the Canadian customs office
and told the official there that his dispatcher had been in-
formed by Livingston that his papers had already been
cleared by customs. The customs official said that La Foun-
tain should not believe the people at Livingston because
‘‘they lie like hell.’’ He said that customs did not have his
papers.
La Fountain telephoned Hart again who told him to wait
until 10:30 a.m. and if he did not have his papers by then,
to call him back. At 10:20 a.m., La Fountain called Hart for
the third time. As he was about to hang up, the runner came
over with his papers. As he checked through them, however,
he noticed that his bill of lading was missing.
Ordinarily, a driver only has two contacts with the broker.
First, when he gives his paperwork to the runner, then when
he gets it back. In this case, however, La Fountain called the
Livingston office, which though not unheard of, is not the
usual procedure and is against Respondent’s rules.14 La
Fountain should only have contacted Hart. On other occa-
sions when drivers have called the Livingston office they
have usually said something like they had been waiting an
hour and still do not have their release, in which case they’re
told that their release was put in 30 minutes ago and it could
be another 30 minutes before they get it. If customs has
blocked the paperwork, the drivers are advised of this fact
and told that it will be resubmitted.
According to the credited testimony of Sheryl Orr, an em-
ployee of Livingston, on the morning of September 20, La
Fountain’s papers were promptly picked up from him, proc-
essed by Livingston and submitted to customs. Customs then
blocked the processing of the papers because they either
wanted a further description of the load or they were ques-
tioning the permit. This blockage took the form of questions
written out and returned to the broker by the runner. What-
ever customs was looking for was then supplied to them and
resubmitted.
About 9:45 a.m. was when La Fountain called the Living-
ston office and inquired where his release was. The woman
who answered La Fountain’s call put him on hold. She then
contacted the runner who advised her that she was still wait-
ing for the release and that was all she knew. Orr explained
that once a set of papers gets into the system at customs, its
very difficult to trace them because there may be 50 trucks
passing through at the same time and customs is too under-
staffed to take time out to look for individual sets. When the
office worker returned to answer La Fountain’s question, she
found that he had hung up.
621C. I. WHITTEN TRANSFER CO.
15 Review of an employee’s file is standard procedure before a
contemplated discharge.
Ten minutes later, La Fountain called the Livingston office
again. A second office worker answered this call. She lis-
tened to La Fountain for a couple of minutes, then asked him
to hold. She turned to Orr and said, ‘‘All this driver wants
to do is argue. Would you take the call?’’ Orr picked up the
phone. She opened, ‘‘Sheryl speaking, may I help you?’’
Then according to Orr, ‘‘He came on yelling in my ear, say-
ing that he had been there for, I don’t know how long. I
think he said for a couple of hours, and he didn’t have the
release yet, and he wanted to know what the problem was,
and he said he always had a problem with Livingston, that
they were slow. He never had to wait for releases from any-
one else, from the other brokers and he also told me that the
problem must be with the runner. It was all her fault, and
he didn’t want to see her face again at customs.’’
According to Orr, La Fountain then said, ‘‘I’m going to
get to the bottom of this. We’re going to get this sorted out.
I have people, important people in high places, with the De-
partment of Transport.’’ Orr testified, ‘‘He said he was going
to stop down the road and see these Department of Transport
people and get this sorted out, and someone’s head was
going to roll for it. He would find out what the problem was
and make sure it didn’t occur again.’’ Orr listened to La
Fountain while he repeated many of the things he had al-
ready said. She told him if he could get someone in higher
authority that could get customs to release shipments faster,
more power to him, everybody would appreciate it, including
the brokers. With that, La Fountain hung up. The conversa-
tion had taken at least 10 minutes.
After the conversation concluded, the office manager,
Spec, who had heard part of it, asked Orr about it. Orr de-
scribed its contents. She remained upset for the rest of the
day. The runner pleaded with Orr not to send her back to
the driver’s room until La Fountain had gone. Orr was under
the impression that La Fountain, if he had the authority, in-
tended to initiate an inquiry, to make trouble either for her-
self, her company, or for customs.
After Orr had explained to her manager what La Fountain
had been saying to her, Livingston received a call from
Wendy, an employee at X-Plo who had apparently heard
from Whitten that La Fountain had not yet cleared. She
asked if there was some way she could be of assistance.
Spec informed Wendy what was happening, the holdup with
customs, as well as the content of La Fountain’s diatribe.
Wendy, in turn, called Hart and informed him of La Foun-
tain’s behavior. Hart then called Orr at the Livingston office
to discuss with her, her conversation with La Fountain. After
she described it to him, he asked her if she would fax the
content of her conversation with La Fountain to him because
this had not been the first complaint he had received about
La Fountain. Orr agreed to do so and subsequently did, that
day at 1:55 p.m. During the conversation, Hart apologized
for La Fountain giving her a hard time. He mentioned that
there was a possibility that he might be terminated.
Orr testified that if Hart had not requested the fax, most
likely Livingston would not have done anything about the in-
cident. If, however, La Fountain had repeated the incident,
there definitely would have been a complaint filed.
After La Fountain found his bill of lading missing, he tes-
tified, he called back the Livingston office and said, ‘‘Lady,
my bill of lading is not with my paperwork. I got to have
it. D.O.T. is setting right in front of you. You can look right
through your windows and see them. They will stop me, sure
as heck, and they are going to ask me where my bill of lad-
ing is and I don’t have it.’’ According to La Fountain, 10
minutes later, they came over with his bill of lading, all
crumpled up.
Orr contradicted La Fountain stating that there was no dis-
cussion about a bill of lading and no talk about the D.O.T.
except in the context of her own description of the conversa-
tion wherein La Fountain talked to her about his friends in
high places.
La Fountain denied swearing, being rude, or threatening
anyone at Livingston. On the Contrary, he testified that some
of the women swore at him and called him names.
When La Fountain returned to the terminal on the evening
of November 20, no one from Respondent mentioned any
customers, brokers, or anyone complaining about him.
Aborn had been away from the yard on November 20 but
called the terminal early in the afternoon. Fuller spoke with
him and advised him that there was trouble between one of
the drivers and a broker up at the border. Fuller, at this time,
had not yet seen the fax. Later in the afternoon, however,
Fuller received the fax and advised Aborn of its content
when he called back again.
The following morning, Aborn arrived at the terminal be-
tween 4:30 and 5 a.m, went out on a run in a three-truck
convey which included La Fountain, then returned to the ter-
minal in the evening. Aborn and La Fountain rode in sepa-
rate trucks on this trip and spoke briefly only once but not
about the previous day’s events. When he returned to the ter-
minal that evening, Aborn advised Fuller that he was leaving
for Connecticut for the long weekend. He told Fuller to put
everything concerning the border incident of the previous
day, and La Fountain’s file on his desk and to lock his of-
fice. He said that he would review it when he got back Tues-
day, November 27.
On Aborn’s return, Tuesday morning, November 27, he
read over the fax which contained Orr’s description of the
events of November 20. He called her and apologized for the
incident. He told her that it was not C. I. Whitten’s policy
for its drivers to contact them and harass them in any way.
He said he could not express how sorry he was that the inci-
dent had happened and assured her that he was going to take
care of the situation. He did not specifically tell Orr that he
was going to fire La Fountain nor did she ask him to do so.
Although Orr expressed some concern as to what would hap-
pen to the driver because of this incident, Aborn had already
made up his mind to fire him after reading the fax.
After reading the fax and deliberating over what to do
about the incident, Aborn decided that by La Fountain’s be-
havior, he had jeopardized the Company’s working relation-
ship with Livingston. He felt that if an incident like this
could happen with a broker, given La Fountain’s temper, it
could also happen with a customer. After reviewing all the
materials including La Fountain’s file,15 Aborn advised
Fuller of his decision. Fuller, in essence, agreed with
Aborn’s decision noting that problems had arisen before and
that Aborn was aware of them. Aborn acknowledged that he
was.
622 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 La Fountain denied asking this question but I credit Aborn.
17 La Fountain denied making this statement but I again credit
Aborn. Senator Ronald Stanfford, the union attorney, was one of the
several government officials whom La Fountain contacted on June
25 to get Landes investigated.
In discussing these past problems that were under consid-
eration, at the time of the decision to discharge La Fountain,
Aborn emphasized La Fountain’s confrontational nature. He
testified that, ‘‘Every time, it seemed like we had Mr. La
Fountain in for a talk, that he was going to get a lawyer’’
and he ‘‘was going to take care of this, and he was going
to take care of that.’’ Aborn testified that although, at the
time of such statements, he considered them idle threats, this
attitudinal history played a part in his deciding that Orr’s de-
scription of events was true, that the incident occurred as she
reported and that La Fountain should be terminated without
the necessity of first asking his version of the incident.
Moreover, any broadening of the investigation would prob-
ably involve additional confrontations and complications
which Aborn understandably wished to avoid. For this rea-
son, Aborn preferred not to divulge the reason for his deci-
sion to terminate La Fountain and subsequently refused to do
so.
In discussing past problems which the Company had with
La Fountain, Aborn also testified concerning a number of in-
cidents which he witnessed during which Fuller attempted to
explain something to La Fountain who would not listen but
would take the attitude, ‘‘I know that; you ain’t got to tell
me.’’ La Fountain’s attitudinal problems as well as his prior
conduct and work history were discussed in light of the No-
vember 20 incident by Aborn and Fuller before La Fountain
was invited into Aborn’s office to be advised of his dis-
charge. They discussed La Fountain’s warnings of June 12
and August 7, described supra, the incident when he threat-
ened to call the home office and Fuller fired him, as well
as the effect of the November 20 incident on Respondent’s
business.
On the date of his discharge, La Fountain had been out on
two trips and returned about 4:30 p.m. Aborn asked Fuller
to bring La Fountain into the office. When La Fountain en-
tered, in Fuller’s presence, Aborn said, ‘‘Jim, an incident has
occurred, and after reviewing it, I have no alternative but to
discharge you.’’ When La Fountain asked what it was about,
Aborn replied that he did not have to explain it. La Fountian
demanded a written statement. Aborn refused. La Fountain
replied that Aborn was not a man if he could not give him
a statement concerning why he had fired him. As La Foun-
tain started to leave, he asked, ‘‘Has this got anything to do
with what happened at the border the other day?’’16 Aborn
replied, ‘‘It may.’’ La Fountain then stated, ‘‘I’ll get to the
bottom of this. I’ll call Ron Stafford. He is the lawyer for
the Union and we’ll get the Union to take care of this situa-
tion.’’17 Aborn then asked La Fountain for certain creden-
tials. La Fountain gave Aborn these documents, then left. He
came back briefly and asked Hart what he knew about it.
Hart denied any knowledge and La Fountain left.
La Fountain filed his charge on December 6, 9 days after
his discharge. Fowler filed a charge on behalf of himself and
his wife on December 17.
Michael Fowler’s Reduction in Wages
One allegation contained in the complaint, paragraph
VII(b), not covered by the above-outlined chronological de-
scription of events concerns Michael Fowler’s alleged re-
duced work hours, beginning July 26.
As noted above, Fowler was promised as close to a 60-
hour week as possible, early in his employment, and was
kept on local trips with only occasional overnight runs. He
estimated that he had been on fewer than 10 overnight trips
and had been on only 1 long trip, that to Halifax, Nova Sco-
tia, that one in June.
Although it is alleged that Respondent discriminatorily re-
duced the work hours of Fowler, beginning July 26, the
record does not support this contention. The pay period end-
ing July 20 (2 weeks) indicates that Fowler earned $20 less
than the previous pay period meaning he worked 2 fewer
hours than the previous period. During the same period, how-
ever, other drivers also received decreases in wages:
Trombly—$71, Pelkey—$2, La Fountain—$25. Moreover,
Respondent hired a new driver during this period at $7 per
hour: Vernon Witherbee who drove about 47 hours for plus
$325.50. Thus, there is no evidence of discrimination against
Fowler during this pay period.
As noted above, Pelkey and Aborn testified that Pelkey
complained that he and Trombley were being forced to take
too many of the long trips and other drivers were not taking
a fair share. Fowler admitted to having heard that the two
were ‘‘miffed’’ about it. Payroll records support the truth of
this matter because they reflect that Pelkey earned the most
and therefore drove the most, in each pay period in July and
August, of any of the drivers and that Trombley was second
in these categories, three out of the five pay periods. When
Pelkey earned $1436 during the pay period ending August 3,
the highest amount of record, his complaint would appear to
Aborn to be justified.
Thus, in late July and early August, four things combined
which would affect the wages of the hourly paid drivers.
First, long trips were to be distributed more evenly. Second,
all drivers were henceforth to be paid by the clock. Third,
because of the timeclock, the close to 60-hour week pre-
viously promised to Fowler was no longer in effect. Fourth,
still another driver was hired to share the payroll.
The pay period ending August 3, the last one before the
above described measures were implemented, indicates that
Fowler’s wages increased $4 reflecting an increase of about
a half hour. As for the other drivers, their wages were af-
fected as follows: Trombley + $162, Pelkey + $149, La
Fountain $184, Witherbee + $892 (his first full paycheck),
Carlton Smart + $920 (new employee). Thus, whereas four
hourly paid drivers were paid $4708 for the pay period end-
ing July 20 and six hourly paid drivers were paid $5298 for
the pay period ending August 3, Fowler did not lose a penny,
but continued to earn approximately the same wages as he
had before.
According to Fowler, before August 1, he was being paid
for 60 hours per week and was told by Aborn to fill out his
logs for 12 hours per day using line 4: ‘‘on duty, not driv-
ing,’’ to indicate time, in excess of the actual time worked,
to make up the difference so as to be paid for a full 12-hour
day. Often Fowler would return early from a trip and ask
Aborn if he could go home. Frequently, he would obtain per-
623C. I. WHITTEN TRANSFER CO.
mission to do so and would fill out his log as indicated
above.
Although Aborn testified that he basically paid Fowler for
the hours he actually worked, there were times when he let
him leave early or come in late and paid him for it.
The payroll records, for the period ending August 17, indi-
cate the first serious drop in Fowler’s wages. This is easily
explained by the fact that Fowler took his vacation during
the week of August 10 and was therefore paid like all hourly
paid drivers, for a 40-hour week, or $360. The week ending
August 17 he earned $535.55 for just under the usual 60
hours’ work. There was, therefore, no discriminatory wage
reduction. Aborn testified that early August is a slow period
because many Canadian companies close down for vacation.
The payroll records support Aborn’s testimony because they
reflect that all but one of the drivers had a decrease in wages
this pay period as compared to the previous one: Trombley—
$140, Pelkey—$263, La Fountain—$14, Witherbee + $106,
Smart—$272.
The payroll records for the period ending August 31 indi-
cate that for the first week, Fowler earned $394.05 reflecting,
actual hours on the clock. Testimony indicates that Fowler
was given several days off at approximately this time of his
employment to attend a relative’s funeral. If this were the
week he took off for that purpose, and it appears to be, that
would account for his lower wages. In the second week of
that payroll period, Fowler earned $504, close to his average.
Analysis of the August 31 payroll period for all hourly paid
drivers indicates that total wages increased for most drivers.
The payroll records for the period ending September 14 in-
dicate that Fowler received $1035 or about two 60-hour
weeks, taking Labor Day (8 hours) into consideration. He re-
ceived a larger paycheck than three of the five other hourly
paid drivers.
Fowler would have received wages far in excess of the
near 60-hour week for the payroll period ending September
28, had he not chosen to refuse the assigned Newfoundland
trip. On that single 5-day trip he would have earned around
$900.
Refusal to Employ Debra Fowler
As indicated earlier, Debra Fowler was not hired inde-
pendently of her husband but as a direct result of her hus-
band’s request of Aborn that she be allowed to accompany
him on trips to Canada.
Debra Fowler’s only union activity was the signing of a
union card proffered to her by her husband on May 10. She
was eventually excluded from the unit and did not vote in
the election. Her relationship to her union activist husband
would, however, also be a consideration in determining the
reasons why Respondent ceased using her services.
Debra Fowler applied for work with Respondent on March
15. On her application, she noted that she was applying for
the position of rider, that she was not physically capable of
heavy manual work and that, in any case, the question of
heavy manual work was not applicable to the position she
was seeking. Fowler explained that she stated that she was
not capable of heavy manual work because before she ap-
plied for the job, her husband explained to her the duties she
would be performing including lifting, loading and unloading
the materials he was hauling and she did not consider that
kind of work, heavy manual work.
Once hired, Debra Fowler performed the duties of a
rider/helper. As a rider, she accompanied her husband on
about 10 runs and helped him unload his truck, on all trips,
‘‘in some form or another,’’ primarily the more manageable
items, when they arrived at their destination. They hauled
black powder, dynamite caps, and similar materials which
were boxed or in sausage rolls which weighed between 50
and 80 pounds. As a helper, she felt that unloading was part
of her duties and both she and her husband worked together.
Neither her husband nor any member of management, how-
ever, instructed her to unload. While performing her work
she wore jeans, a sweatshirt, and sneakers. While unloading
she also wore gloves with grippers on the inside. Although
she did help with the unloading, she was still primarily a
rider because there was not that much work to do on these
types of trips. The duties performed by Debra Fowler, as a
rider, were similar to those performed by other riders who
accompanied Michael on other occasions on similar trips, in-
cluding other drivers, working as riders.
The trips on which Debra Fowler accompanied her hus-
band required the presence of two individuals at all times be-
cause the cargo consisted of certain classes of explosives and
Canadian regulations provided for this requirement. But for
this regulation, Michael Fowler could have driven the truck
and unloaded it without the aid of a helper.
While Debra Fowler was employed by Respondent she
never assisted any of Respondent’s other employees with
loading or unloading at the Plattsburgh terminal or, insofar
as the record indicates, anywhere else. She did, however, on
at least two occasions, work with employees of customers
doing this type of manual labor.
In the usual course of her employment, Debra Fowler did
not accompany other drivers as a rider on their trips. One ex-
ception, however, occurred when she and her husband were
driving back from a trip to Canada. When they reached with-
in a few miles of the terminal, their truck broke in half. Mi-
chael managed to get the truck safely stopped near a gas sta-
tion. Both got out of the tractor and Michael called Aborn
from the station. Aborn, Shoemaker, and another of Re-
spondent’s employees drove to where the Fowlers and their
truck were waiting. They separated the tractor and trailer.
Michael stayed there with Aborn and the other employee
while Debra got in the truck with Shoemaker and they took
the trailer to the magazine which was only a half hour away.
After dropping the trailer off, Debra waited for her husband
at Respondent’s office until he picked her up to take her
home. This incident occurred about a month before the elec-
tion.
Although Respondent employed regular full-time guards to
stand watches at the magazine, Debra Fowler was never
hired in that capacity, nor was it contemplated that this
would be one of her duties. She was not requested to per-
form in that capacity and she never asked for that job.
On two occasions, however, when Respondent was short
of personnel, Debra Fowler was asked to help out, just sitting
in a truck watching over some trailers loaded with explo-
sives. One such occasion occurred in late April or early May
when a U.S. bound shipment was unloaded from a ship in
the port of Montreal. For some reason, the containers did not
have the proper export licenses to clear the border but they
had to get off the ship. After 2 days, arrangements were
made to have the shipment hauled down to a particular yard
624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
just across the border on the Canadian side where the ship-
ment could remain parked until the proper papers were ob-
tained. The owners of the parking area, however, required
that Respondent furnish a guard and a driver with a tractor
to remain with the trailers full of explosives while they re-
mained at the site. The purpose of this stipulation was to
have someone there to be able to move the trailers into the
woods or elsewhere within the confines of the area, out of
danger, in case of emergency. Fred Marks, an employee who
was capable of moving the equipment, though not an over-
the-road driver, was sent up as driver and Debra Fowler was
sent up as guard because of the shortage of men at the time.
Fowler and Marks remained all day on duty at Marcel’s
yard in Le Cole, Quebec, until a company team was sent up
to relieve them. They each then went home to eat and sleep
for several hours until 2 or 3 a.m. at which time Fowler
drove over to Marks’ home in her personal vehicle. They
drove back to Le Cole to continue their watch through the
following day until permits were obtained and the containers
moved across the border to Plattsburgh.
Although Debra Fowler apparently did not recall it, Aborn
remembered a similar situation where he and Fowler just sat
in the cab of a tractor guarding trailers loaded with explo-
sives. This was their sole duty. They chatted while she knit-
ted.
The last time Debra Fowler worked in any capacity for
Respondent was before the election. Respondent offered sev-
eral reasons for this, primarily that there was no work avail-
able for her.
Counsel for the General Counsel, through his questioning
of Respondent’s witnesses, implied an obligation on Re-
spondent’s part to call Debra Fowler back as a guard at the
magazine. Aside from the fact that she was not originally
hired as a guard, Aborn credibly testified that he would
never have allowed her to be assigned to the magazine, espe-
cially not alone, at night. He testified that the place is iso-
lated with just a couple of lights and an outhouse. Though
isolated, it is accessible to anyone who may approach by car
or on foot by road or through the woods. Aborn offered two
vignettes, as examples, as to why he would not assign a
woman to the post, one involved a bear standing outside the
shack, which petrified the guard on duty, the second involved
an incident one night, about 2 a.m., when two four-wheeled
vehicles drove onto the magazine property from the runway
of the nearby county airport and kept racing around the
shack until the guard called the state police. I credit Aborn’s
expressed concern for Debra Fowler’s safety and believe he
never considered assigning guard duty at the magazine to any
woman.
The incidents where Debra Fowler was asked to stand
watch with Marks on one occasion and with Aborn on an-
other occasion were isolated and not part of her regular du-
ties as a rider. She would not have been used for that pur-
pose had regular employees been available, and there is no
evidence similar circumstances have arisen since the two iso-
lated incidents described above.
Moreover, Aborn testified that 2 days after Marks and
Debra Fowler spent the 2 days in Le Cole together watching
the trucks, Marks asked that he not be sent out with Fowler
again because his wife threatened to throw him out of the
house if it happened again.
Aborn testified that after her assignment to stand watch
with Marks at Le Cole, he used Debra Fowler again as a
rider a couple of times, but only with her husband. Accord-
ing to Aborn, when Debra was hired, he asked Michael about
her riding with other drivers and his response was, ‘‘I prefer
she rode with me.’’ Michael did not deny making this re-
quest. According to Aborn, he never knew until he heard
Debra Fowler testify during the hearing that she helped un-
load when she accompanied her husband as a rider on trips.
From her application, he assumed that she would not be
picking up 60-pound boxes of dynamite, carrying them, and
stacking them five or six high. He made the same assump-
tion based on her slight build and her high-fashioned appear-
ance. He testified that he had never seen her doing any load-
ing or unloading and Debra Fowler admitted herself that she
never did any of this kind of manual labor at the terminal
or in the presence of any of Respondent’s employees. Aborn
testified that as he understood Debra’s job, it was to meet
the demands of the regulation requiring the presence of two
individuals on trips in trucks carrying certain types of explo-
sives, to go for anything that Michael might need or to make
a phone call for him in case of a problem, while he remained
with the truck. He testified further that he expected that
Debra might help Michael keep the truck clean. I credit
Aborn’s testimony as to his understanding of the duties being
performed by Debra when accompanying her husband on the
road. Since Aborn hired Debra primarily as a favor to Mi-
chael, it is understandable that he did not expect her to per-
form all the duties expected of regular helpers. He never
asked her if she was helping unload and she never told him.
Neither Respondent nor General Counsel offered into evi-
dence any payroll records or pay stubs indicating the last
date that Debra worked for Respondent. Thus, it can not be
seen, relative to the Fowlers’ union activity just when Re-
spondent ceased using her services. She worked sporadically
for about 2 or 3 months. Michael Fowler placed their last
trip together on about May 22.
According to Aborn, it was during this period of time
when he decided to hire an additional helper to help with un-
loading the full shipments which Respondent expected from
its customers in the near future. The shipments would require
the lifting of 40- to 80-pound boxes of explosives, carrying
them and stacking them five or six high on a handcart. He
felt he needed helpers who could manhandle these explo-
sives. Aborn never considered Debra Fowler for this kind of
work and she admitted in her testimony that she could not
perform it.
After Debra Fowler had not been called to work for sev-
eral days she discussed the matter with her husband. She
wondered why she had not been used and if she had been
terminated. Michael said he thought it might have something
to do with the union activity. Subsequently, after the elec-
tion, Michael asked Fuller if his wife could accompany him
on a particular trip. Fuller replied that he did not know, but
would ask Aborn. Thereafter, Fuller returned and told Mi-
chael that Debra could not make the trip. Michael attributed
the decision to Aborn but could not recall if he was given
a reason for the refusal of his request. Neither could he recall
if someone else accompanied him on this trip.
After Aborn, through Fuller, refused to let Debra ride with
Michael, Michael approached Aborn in his office, and asked
him, ‘‘Can I assume that my wife is no longer employed by
625C. I. WHITTEN TRANSFER CO.
C. I. Whitten Transfer?’’ Aborn replied, ‘‘No, she’s still an
employee at C. I. Whitten, part time. If the need arises, I
wouldn’t hesitate to call her.’’ Michael then asked, ‘‘‘Well,
why isn’t she working?’’ Aborn responded that there just
was no work for her to do. Michael Fowler made no further
requests or inquires concerning the subject.
Prior to May 31, Respondent was contacted by a customer
and asked to quote a price on certain shipments. The entire
contract provided for the shipment of Eastman Kodak prod-
ucts from Rochester, New York, to Simsbury, Connecticut,
where they were to be converted and put with explosives,
then packaged in containers. These containers were then to
be picked up by Respondent’s units and vans in Simsbury.
When loaded on the vans by electric trucks, the containers,
referred to as ‘‘coffins,’’ were to weigh between 240 and
260 pounds and were to be stacked in the van four or five
high. The shipment was then to be transported to the Platts-
burgh terminal. In the meantime, Respondent was to pick up
an empty sea-going container in Montreal and bring that to
the terminal in Plattsburgh where the coffins were to be
transferred from the vans, across a flatbed and stacked seven
high inside the container for further shipment to Halifax.
Aborn testified that he was uncertain that Respondent
could successfully perform the requirements of the proposed
agreement but determined to give it a trial run. He knew that
he could not use a tow motor to transfer the coffins at Platts-
burgh from the van to the container because the coffins con-
tained class A explosives. He concluded that some heavy
physical labor would therefore be involved. He already had
two very large and muscular yardmen working at the termi-
nal but decided he would need a third to physically lift the
coffins and stack them one on top of the other and stuff the
sea-going container to its capacity before shipment to Hali-
fax.
To perform the labor connected with the transfer of the
coffins from the van to the container in Plattsville, to per-
form the duties of rider, and accompany the newly increased
full loads being sent to Ormstown and to perform guard du-
ties for 12-hour periods at the magazine, Aborn decided to
hire an employee who could satisfactorily perform all of
these duties. This individual turned out to be Parker.
On May 31, Harold Parker applied for work with Re-
spondent as a laborer/rider/guard. Parker was 44 years old,
6 feet 3 inches tall, and 230 pounds. He claimed, on his ap-
plication, unlike Debra, to be physically capable of heavy
manual work. Parker was interviewed for work on June 22
and was hired on June 25. He had already been an acquaint-
ance, on a social level, of Fuller, before he applied for work
with Respondent. Though, coincidentally, Parker was inter-
viewed on the day of the election, Fuller did not mention the
election or the union to him, nor did anyone else. Parker was
not told that he was being hired to replace anyone.
On obtaining employment with Respondent, Parker was
advised that he would be riding with the drivers, accompany-
ing them on their deliveries, mostly to Canada, and helping
them load and unload, both at the home terminal and else-
where. Immediately on being hired, Parker began working in
excess of 40 hours per week. As a rider/helper he rode with
most all of the drivers on their trips including both La Foun-
tain and Fowler. None of these trips were of the overnight
type which required him to drive since he did not possess
a class 1 driver’s license. Thus, he would normally return the
same day as he left.
Parker testified to the type of lifting he was required to
do. Normally, the weight of the objects which he handled
were 50 to 60 pounds. Occasionally, he would have to lift
and carry individual boxes, but normally he would stack the
boxes six high and transport them on handtrucks. This would
depend on how the trailer was loaded.
The work performed by Parker at the terminal sometimes
involved heavier items. These were the boxes previously re-
ferred to as ‘‘coffins,’’ which were being shipped on the
Rochester-Simsbury-Plattsburgh-Halifax run, the subject of
the newly acquired contract discussed above. As Parker de-
scribed his work, the coffins would arrive at the terminal
stacked five high. One individual would unload them from
the trailer by means of a forklift. He would transfer them to
where two other yardmen, using a hydraulic hand truck,
would move them around within a sea-going container in
which they would be stacked seven high. When the men
eventually would run out of room, they would have to move
the coffins by hand, sometimes with the assistance of the
forklift operator. The two yard men who together with Parker
worked on transferring the coffins, are very large, muscular
men referred to by Aborn during his testimony as ‘‘gorillas.’’
It is as clear to me as it was to Aborn, and eventfully, admit-
tedly, to Debra Fowler, that she was not capable of perform-
ing this kind of work.
Patrick Delaney had been employed by Respondent prior
to the hiring of Debra Fowler and prior to the union organi-
zational drive. He was a known union adherent, but, never-
theless, continued to be employed on a part-time basis by
Respondent after the election and after Parker was hired. Al-
though Parker occasionally would see Delaney, it was not
often since they were both riders and rode in different trucks
with different drivers. Parker testified, however, that on one
occasion, at the magazine, he saw Delaney lifting and mov-
ing 50-pound cans but never saw him working with the cof-
fins. Delaney was also occasionally employed as a guard at
the magazine.
General Counsel drew attention, during the hiring, to the
fact that Delaney is only 5 feet 7 inches and weighs only 140
pounds. The implication apparently to be drawn is that Debra
Fowler’s lack of size should not be a consideration in deter-
mining the reason why she was no longer employed since
Delaney was not much bigger. General Counsel’s argument
is noted but not given much weight. Parker worked with the
coffins and was hired, in part, to do so. Neither Delaney nor
Debra Fowler was capable of performing this work. Since
Delaney had been employed by Respondent before Debra
Fowler was hired, there is no reason he should not be given
preference over her for whatever work was available.
In addition to performing his duties as rider/helper, Parker
has also, on occasion, been assigned guard duty at the maga-
zine. There, he would pull both 12- and 8-hour shifts. Parker
confirmed Aborn’s description of the magazine area as iso-
lated in the woods with nobody around most of the time.
Parker’s being able to handle guard duty at the magazine was
clearly a consideration at the time of his hire, as is noted on
his application.
After Debra Fowler was no longer being called to work
as a rider, Respondent did not hire any new employees clas-
sified as a rider or rider/helper other than Parker. New driv-
626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 The dates ascribed in the complaint to various incidents of al-
leged 8(a)(1) violations may sometimes be in error. Respondent was
not thereby prejudiced since testimony of witnesses at the hearing
clarified matters sufficiently to adequately apprise counsel of the cir-
cumstances and factual content of the incidents being alleged as vio-
lative. Respondent was afforded adequate time to correct these inad-
vertent errors.
ers and new guards for stationing at the magazine were hired
and one of them occasionally was assigned as helper. He re-
portedly did heavy manual labor. The hiring of these new
employees to perform duties, for which Debra Fowler had
never been considered, has no hiring on the failure of Re-
spondent to continue to employ her.
Michael Fowler testified and Aborn confirmed that after
Respondent ceased using Debra Fowler’s services as Mi-
chael’s rider, he continued to make trips similar to those he
made with Debra. Riding with him on trips of this type, as
well as others, were Parker, La Fountain, Delaney, Veen, and
Aborn. Some of these trips were of a new type which re-
quired two drivers. There is no evidence or claim that Fowler
was accompanied by a newly hired part-time rider. All em-
ployees who accompanied Michael Fowler, after Debra’s
services were no longer being used, were either full-time em-
ployees or part-time employees with more seniority.
Fuller testified that Parker was not hired to replace Debra
Fowler or anyone else. He stated that she was never termi-
nated and is still eligible for employment. He testified that
although he and Hart are still responsible for making assign-
ments to guards, riders and drivers, he has given no consider-
ation to calling Debra Fowler to work since her last trip,
which was before the election. When asked the reason, his
reply was, ‘‘Well, the reason that Debra was put on . . . was
to assist Mike—to be with Mike.’’ Counsel then followed up
with the question, ‘‘And is your understanding that since
Mike is no longer there, there is no work for her on that
basis?’’ Fuller replied, ‘‘I wouldn’t say that that would be
the basis for it, no. . . . Just nothing available to do.’’
According to Aborn, the Canadian government, in 1989,
began to consider removing the regulation which required
that two individuals occupy a truck carrying certain classes
of explosives. New legislation was approved, in that year,
that the regulation was no longer in effect provided the truck
was radio equipped. In May of that year, after doing consid-
erable research, Aborn sent a letter to the main office in
Huntington recommending that the trucks in Plattsburgh be
so equipped. Although Aborn’s suggestion was rejected by
the home office in 1989, that decision was later reversed and
Aborn began purchasing and installing CBs in all of Re-
spondent’s trucks. This made the employment of riders on
runs covered by the regulation no longer necessary after Oc-
tober or November 1990. Although this new legislation
would have adversely affected Debra Fowler’s employment
as of October, it would not have had much to do, of course,
with the failure to employ her during the period, June
through September.
Conclusions
The 8(a)(1) Allegations
Within the above-described chronology of events,18 I find
the following incidents violative of Section 8(a)(1) of the
Act.
1. Fuller’s interrogation of Fowler, following the receipt of
the petition, as to whether he had heard anything about the
union organizational attempt. After Fowler told Fuller that he
had no right to ask him that question, Fuller’s statement,
‘‘That’s all I need to know.’’ converted the question, in this
context, into a threat.
2. Fuller’s threat to Fowler that the Company was going
to close its doors and that he and all the other drivers would
be out of a job if the Union succeeded in organizing Re-
spondent’s employees.
3. Fuller’s telephone call to Fowler during which he asked
Fowler whether he or La Fountain had anything to do with
passing out union cards to employees.
4. Ammon’s statement to Delaney and La Fountain that he
knew who had signed cards. This statement created the im-
pression that Respondent was keeping their union activities
under surveillance.
5. Fuller’s threat of termination of Michael Fowler as con-
veyed through Debra Fowler.
6. Aborn’s informing Delaney that he was lucky he had
not been fired for signing a union card.
7. Aborn’s interrogation of Parker on June 25.
8. Aborn’s prohibiting La Fountain from discussing the
Union.
9. Aborn’s prohibiting La Fountain from wearing the
union hat.
10. Fuller’s interrogation of Parker as to whether he had
been briefed about the Union by La Fountain and Fowler.
11. Fuller’s phone call to La Fountain in early August dur-
ing which he told him that he did not want the Union in,
did not want to hear La Fountain talk about it, and threat-
ened him that if he discussed the Union anymore, it would
mean his job.
12. Aborn’s statement to Veen, ‘‘I don’t know about Jim
La Fountain, whether this union bullshit is going to start up
again.’’
The 8(a)(3) Allegations
With regard to the allegation that the termination of Mi-
chael Fowler was discriminatorily motivated, I find that Gen-
eral Counsel has failed to prove by a preponderance of the
evidence that this allegation is meritorious.
The record is replete with evidence that Fowler was a
union sympathizer and activist, that Respondent’s manage-
ment was aware of this fact, that Fuller and Aborn bore him
a great deal of animus because of his union activity and
demonstrated this animus by stating their feelings openly and
threatening him on a number of occasions with discharge.
Yet, when certain incidents occurred which might have been
used as pretexts to carry through their threats, Fowler re-
ceived only warnings.
The record further indicates that months after Fowler’s
union activity was discovered and acknowledged, he was still
being given preferred treatment, mostly local runs with very
few overnight trips. It was not until the other drivers com-
plained about their having to take too many back-to-back,
long trips, and Aborn decided that their complaints were le-
gitimate, that he assigned Fowler to the Newfoundland run.
Though not entirely free from doubt, I conclude that Aborn
assigned Fowler the Newfoundland run to better spread out
the long trips among all the drivers in response to their rea-
sonable requests and not for the purpose of punishing Fowler
627C. I. WHITTEN TRANSFER CO.
19 Wright Line, 251 NLRB 1083 (1980).
20 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
because of his union activity or to place him in such a posi-
tion that he would be forced to quit.
When Fowler refused to take the assignment, he refused
an order which was in furtherance of the new policy of the
company as announced in the August 1, memorandum. When
Aborn discharged Fowler, it was because Fowler refused to
follow Aborn’s order to accept the assignment, not because
of his union activity. I therefore recommend dismissal of this
allegation.
With regard to the allegation that the termination of James
La Fountain was discriminatorily motivated, I find that, as in
the case of Michael Fowler, General Counsel failed to prove
by a preponderance of the evidence that this allegation is
meritorious.
Clearly, La Fountain was the most active prounion em-
ployee. Just as clearly, Respondent’s managerial personnel
were aware of his activities and were outwardly hostile to-
ward him because of them. The numerous incidents of
8(a)(1) violations and threats against La Fountain would tend
to support the allegation.
On the one hand, I have found that La Fountain had bro-
ken certain company rules and breached certain government
regulations prior to his discharge which might have been
used as pretexts for discharge but which resulted merely in
warnings. When La Fountain threatened Fuller that he in-
tended to call the home office with regard to his missing
truck, and Fuller got angry enough to fire him, Aborn called
him back to work and, the next morning, paid him for his
lost time and berated Fuller in La Fountain’s presence. Re-
spondent’s overall treatment of La Fountain from his initial
involvement with the Union in February through his termi-
nation on November 27 does not reflect an intention to ter-
minate him because of his known and acknowledged union
activities and sympathies, notwithstanding the various inci-
dents of 8(a)(1) violations and threats against him.
I believe that, but for the incident at the border on Novem-
ber 20, La Fountain would still be employed by Respondent.
I believe that Aborn took the incident of November 20
very seriously and would have terminated La Fountain be-
cause of it and because he feared a possible repetition of it,
even if La Fountain had not been previously engaged in
union activities.19 In short I find that La Fountain was dis-
charged for cause.
With regard to the allegation that from about July 26 until
September 21, Respondent reduced the work hours of Mi-
chael Fowler because he engaged in union and concerted ac-
tivities, I find that the allegation is without merit.
I have thoroughly analyzed the payroll records and studied
the testimony and conclude that there was no substantial re-
duction in Michael Fowler’s work hours which were
discriminatorily motivated. I recommend dismissal of this al-
legation.
With regard to the allegation that Respondent has, from on
or about June 22 to date, refused to employ Debra Fowler,
because she engaged in union or protected concerted activity,
I find the allegation to be without merit.
I find that Debra Fowler was hired by Respondent solely
as a personal favor to her husband, to permit him to enjoy
her company on certain specific types of trips where due to
the cargo being hauled, government regulation required the
presence of two individuals on the run.
I find that the number of trips of this nature available for
Debra decreased after June. This was due, in part, to changes
in the nature of the cargo shipped. The number of boxes per
load increased in many cases and the boxes shipped were
much larger in other cases. The hiring of Parker as a fulltime
laborer/rider/guard made fewer rider jobs available to assign
to occasional and part-time employees of limited capacity
like Debra Fowler. Finally, when Michael was terminated in
mid-September, there was no longer any reason to consider
calling Debra since Michael had made it clear that he pre-
ferred that she just ride with him and not with other drivers.
Moreover, since she wanted the rider’s job, in the first place,
solely to be with her husband, having her drive off into the
sunset, with some other guy, would hardly achieve that pur-
pose. I recommend dismissal of this allegation.
CONCLUSIONS OF LAW
1. C. I. Whitten Transfer Company is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interrogating employees concerning their union ac-
tivity and the union activities of other employees, by threat-
ening employees that the company would close its doors and
that all of the drivers would be out of a job if the Union
succeeded in organizing Respondent’s employees, by threat-
ening an employee with termination if he continued his union
activities, by creating the impression among its employees
that it was keeping their union activities under surveillance,
by telling an employee that he was lucky he had not been
fired for signing a union card, by informing an employee that
he could not discuss the Union at any time and by
discriminatorily enforcing a rule preventing its employees
from wearing union insignia, Respondent has interfered with,
restrained and coerced its employees in the exercise of rights
guaranteed in Section 7 of the Act in violation of Section
8(a)(1) of the Act.
4. The unfair labor practices described above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. The Respondent has not engaged in any of the other un-
fair labor practices alleged.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended20
ORDER
The Respondent, C. I. Whitten Transfer Company, Platts-
burgh, New York, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Interrogating employees as to whether they have heard
anything about a union organizational campaign.
628 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(b) Threatening employees that the Company is going to
close its doors and its drivers will be out of a job if the
Union succeeds in organizing its employees.
(c) Interrogating employees as to whether they or certain
other employees had anything to do with passing out union
cards to employees.
(d) Creating the impression of surveillance by telling em-
ployees that management knows who have signed cards.
(e) Threatening employees’ wives that their husbands will
be terminated unless their husbands cease their union activi-
ties.
(f) Telling employees that they were lucky that they had
not been fired for signing a union card.
(g) Interrogating employees as to their union sympathies.
(h) Prohibiting employees from discussing the Union.
(i) Prohibiting employees from wearing union insignia.
(j) Interrogating employees as to whether they have been
briefed about the Union by certain other employees.
(k) Threatening employees that if they discuss the Union
it will mean their jobs.
(l) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its Plattsburgh, New York facility copies of the
attached notice marked ‘‘Appendix.’’21 Copies of the notice,
on forms provided by the Regional Director for Region 3,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT interrogate employees as to whether they
have heard anything about a union organizational campaign.
WE WILL NOT threaten employees that the Company is
going to close its doors and its drivers will be out of a job
if the Union succeeds in organizing its employees.
WE WILL NOT interrogate employees as to whether they or
certain other employees have had anything to do with pass-
ing out union cards to employees.
WE WILL NOT create the impression of surveillance by tell-
ing employees that management knows who have signed
union cards.
WE WILL NOT threaten employees’ wives that their hus-
bands will be terminated unless their husbands cease their
union activities.
WE WILL NOT tell employees that they are lucky that they
have not been fired for signing union cards.
WE WILL NOT interrogate employees as to their union
sympathies.
WE WILL NOT prohibit employees from discussing the
Union.
WE WILL NOT prohibit employees from wearing union in-
signia.
WE WILL NOT interrogate employees as to whether they
have been briefed about the Union by certain other employ-
ees.
WE WILL NOT threaten employees that if they discuss the
Union it will mean their jobs.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
C. I. WHITTEN TRANSFER CO.