Circle Transport

National Labor Relations Board - Board Decisions

Nov 26, 1974

215 N.L.R.B. 127 (N.L.R.B. 1974)

K & W TRUCKING, INC. 127
K & W Trucking, Inc., d/b/a Circle Transport and
Teamsters Local Union No. 413 , affiliated with the
International Brotherhood of Teamsters , Chauf-
feurs , Warehousemen and Helpers of America. Case
9-CA-8387
November 26, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On July 15, 1974, Administrative Law Judge Marion
C. Ladwig issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a sup-
porting brief, together with a motion for reconsidera-
tion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Baord has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief and
has decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge and to adopt his
recommended Order.
Respondent has filed a motion for reconsideration
requesting that this matter be remanded to the Ad-
ministrative Law Judge for further hearings in connec-
tion with the Board's jurisdiction over Respondent.'
Briefly stated, Respondent's motion seeks to establish
K & W Trucking, Inc., and Circle Transport as two
separate and independent corporations and, thereby, in
effect, to withdraw its answer to the complaint which
admitted that K & W Trucking, Inc., d/b/a Circle
Transport, was engaged in interstate commerce and
met the Board's jurisdiction standards. In support of
this position, Respondent asserts that: (1) at the time
of the hearing its attorney was under the mistaken
impression that K & W, as a common carrier, was
engaged in interstate commerce; (2) since the hearing
its attorney has learned that K & W and Circle are two
separate business entities doing business with each
other on a lessor-lessee basis; (3) Circle Transport, the
lessee, is a intrastate carrier with no authority to engage
in interstate commerce; and (4) K & W derived less
than $5,000 in revenues from customers other than
Circle Transport.
Respondent's motion is hereby denied as it fails to
allege evidence that was not available to its attorney at
the time of the hearing. In our view, Respondent's
motion amounts to a circuitous attempt belatedly to
amend its answer to the complaint by claiming the
discovery of facts that should have been known to Re-
spondent at the time of the hearing. Contrary to Re-
spondent's claim, the record shows that Respondent,
who was represented by competent counsel from the
outset of this litigation, had ample opportunity to liti-
gate the issue that it now seeks to raise.
From the time the original unfair labor practice
charge was filed, both K & W and Circle were suffi-
ciently forewarned that the charge was being instituted
against them as one and the same business entity. Thus,
the charge named Circle Transport as the Employer
and listed the names of Charles Keaton and Laverne
Wills, the coowners of K & W, as the Employer's re-
presentatives. The charge was mailed to Circle Tran-
sport and the registered letter receipt was signed by
Wills on behalf of Circle Transport. Thereafter, the
complaint and notice of hearing named K & W Truck-
ing, Inc., d/b/a Circle Transport, as the Respondent
and alleged that Respondent was engaged in interstate
commerce. Respondent's answer to the complaint,
though captioned, "K & W Trucking, Inc. and Circle
Transport," admitted in its entirety the complaint's
jurisdiction allegation. So, too, at the hearing, Respon-
dent's attorney signed the "attorney appearance form"
as counsel for K & W Trucking, Inc., d/b/a Circle
Transport.
The foregoing indicates that, even before the hearing,
Respondent's attorney knew, or clearly should have
known, that K & W was being treated as a company
"doing business as," or operating in the name of, Circle
Transport. During the hearing, Respondent had ample
opportunity to raise the issue concerning the asserted
separate identities of the parties. For example, in re-
sponse to the Administrative Law Judge's inquiries,
Keaton testified that K & W owned its trucks and hired
its drivers and that the relationship between K & W
and Circle Transport was one of lessor-lessee.
However, Respondent made no effort to amend its an-
swer to conform with Keaton's testimony.
In sum, the admissions in the answer remain binding,
and it is far too late, at this point in the proceeding, for
Respondent to seek to litigate a matter thus
admitted.' Thus, properly relying on the Respon-
dent's answer and fully in accordance with - Section
102.20 of the Board's Rules and Regulations, the Ad-
ministrative Law Judge found that Respondent, K & W
Trucking, Inc., was doing business as Circle Transport
and that it "annually receives revenue in excess of $50,-
000 for services performed for Ohio businesses, each of
which has an annual direct outflow, in interstate com-
merce, of products valued in excess of $50,000." Pipe
Lines, Inc., 145 NLRB 748 (1963). There is no doubt,
and we take official notice of the fact that General
In accordance with its answer to the complaint, the term "Respondent"
as used herein , refers to K & W Trucking, Inc , d/b/a Circle Transport 2 Bogart Industries, Inc., 196 NLRB 189 (1972)
215 NLRB No. 28
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Electric, from whom Respondent derives most of its
revenues, has been found by the Board to be engaged
in interstate commerce within the meaning of the
Act.' From the foregoing it only follows that the Ad-
ministrative Law Judge correctly found that Respond-
ent is engaged in commerce within the meaning of the
Act and meets the jurisdictional standards established
by the Board. Respondent's motion is therefore denied.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
Respondent, K & W Trucking, Inc., d/b/a Circle
Transport, Circleville, Ohio, its officers, agents, succes-
sors, and assigns , shall take the action set forth in the
said recommended Order.
3 See General Electric Company, 192 NLRB 68 ( 1971), enfd 466 F 2d
1177 (CA 6, 1972).
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge: This case
was tried at Circleville, Ohio, on June 18, 1974.' The charge
was filed by the Union on March 20 and the complaint was
issued on May 13. The primary issues are whether the Com-
pany, the Respondent, (a) engaged in unlawful interrogation
during the Union's organizing drive, and (b) discriminatorily
discharged to union supporters, in violation of Section 8(a)(1)
and (3) of the National Labor Relations Act.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of the
briefs filed by the General Counsel and the Company, I make
the following:
FINDINGS OF FACT
I JURISDICTION
The Company, an Ohio corporation, is engaged in the
transportation of freight at Circleville, Ohio, where it annu-
ally receives revenue in excess of $50,000 for services per-
formed for Ohio business, each of which has an annual direct
outflow, in interstate commerce, of products valued in excess
of $50,000. The Company admits, and I find, that it is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act, and that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
tracts. Frank Manfredi (who is not an official of the Com-
pany) is the sole owner of Circle Transport's P.U.C.O. au-
thority to transport the freight. With two exceptions, the
Company owns all the trucks and hires all the drivers. (Man-
fredi himself owns one of the trucks, and a Mr. White owns
one.)
It is undisputed, as truckdnver Leonard Sines credibly
testified, that on several occasions, Company President
Charles Keaton and Treasurer (and Dispatcher) Laverne
Wills have stated that Manfredi would not "put up with
having a union in here" but instead would "close the place
down and put his own trucks in." (Manfredi is not a respond-
ent, and these statements by Company Officials Keaton and
Wills are not alleged to be unlawful threats of reprisal.) On
one of the occasions when Keaton and Wills mentioned Man-
fredi 's antiunion statements , the two company officials were
in the shop talking with some of the drivers, and discussing
the fact that General Electric's truckers had gone on strike
3 or 4 years earlier (before Circle Transport received the
hauling contracts) and that employees at the General Electric
plant in Logan, Ohio, were then talking about going on strike.
(Company drivers haul freight between General Electric's
fluorescent light assembly plant in Circleville and its plants
in Logan and Bucyrus, Ohio.)
Despite these company statements about what Manfredi
would do in the event of unionization, truckdrivers Sines and
Larry Riffle, along with several other company drivers, went
to a union meeting at the home of truckdriver Donald Price
sometime in the latter part of October. Sines and Riffle both
signed authorization cards at the meeting and took cards for
others to sign.
The Company discharged Riffle on November 15, and
Sines the next day, assertedly for reasons unrelated to the
Union. President Keaton testified that he was not concerned
about the organizational efforts: "it makes no difference to
me... . If they want a union let them get her in down there.
It's no problem of mine." Treasurer Wills testified, "I'm not
one bit worried about a union, or anything. if they want a
union in here, that's the driver's privilege."
On the other hand, Riffle testified that when Treasurer
Wills discharged him on November 15, Wills said, "You
know when you signed that card you signed your job away.
That was your job." And according to Sines, Wills told him,
"well . . . we can 't use you no more because . . . we've been
having a lot of complaints about you. . . . You're talking to
the men . . . and you're trying to organize the Union and
causing trouble among the men. . . . You know that Mr.
Manfredi will not allow a union in here.. . . The local G.E.
plant down here would not let the trucks in there with a
union."
B. Company Knowledge of Union Activity
II ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
About 60 percent of the Company's business is hauling
freight for General Electric, under Circle Transport con-
All dates are from October 1973 until June 1974 unless otherwise stated
Treasurer Wills claimed that "really, the first I had known
there was actually any union activity was the day after I had
laid Sines and Riffle off." (Emphasis supplied .) He added,
however , "I had one indication that there may have been
some cards passed , because I had-I don't even remember
who it was, asked me if I knew there was some cards cir-
culated . . . it was a driver that had picked up his paycheck"
K & W TRUCKING, INC 129
about 2 weeks before, " and I never did know that there was
any activity for sure until afterwards."
President Keaton finally admitted that he knew much
more about the union activity. Although he first testified that
he had heard merely "rumors" about union cards being cir-
culated, and "I never seen no union cards," he later admitted
that in the latter part of October, employees talked to him
about the union cards being circulated, and testified, "Man,
there was union cards laying on that table down there for two
or three weeks right there in the . . . coffee shop." In fact,
he claimed that in the latter part of October or the first of
November, two drivers reported that they had been threat-
ened with harm unless they signed cards, but that he had not
asked who had threatened them. He identified the two drivers
as Ron Ballard (who Riffle had induced to sign a card) and
Walter Williams (one of the drivers who attended the union
meeting with Riffle and Sines). He also admitted that, about
the same time, he heard " about Don Price and the union
cards," but stated, "I can't say whether that's true or not"
that he heard rumors that the union cards were "at Price's
house."
Drivers Sines and Riffle did some campaigning for the
Union after the meeting at driver Price's home. Sines talked
to several of the drivers about the Union "mostly when we
were done with our runs of an evening," but did not get any
cards signed. Riffle was able to get one card signed (by driver
Ballard), and talked with driver Lloyd Ratcliff, an antiunion
employee who testified as a witness for the Company.
When called as a company witness, Ratchiff testified on
cross-examination, "I knowed it was one of three guys" who
was trying to get a union in there, "but I didn't know which
one." The three he named were Sines, Riffle, and Price. He
explained that he knew the union meeting was at Price's
home; Sines had telephoned him and asked if he was inter-
ested in going to the meeting; and "Maybe a week or two"
before Riffle's discharge, Riffle asked him to sign a union
card and told him "who all was there at the meeting and
where the meeting was at. And added them all together, why,
you know." Ratcliff, at first, flatly denied ever talking about
the Union to Treasurer Wills (who discharged Riffle and
Sines), but then changed his testimony and conceded,
"Maybe here lately, yes." (By his demeanor on the stand,
Ratcliff did not impress me as being entirely candid.)
On Saturday, November 17 (2 days after his discharge),
driver Riffle went to Treasurer Wills' home and, as Riffle
credibly testified, asked Wills why he and Sines were accused
of being the union ringleaders. (Riffle testified on cross-
examination that neither Wills nor Keaton had accused him
of being a ringleader, but stated that company drivers were
accusing Riffle and Sines of being the ringleaders. As in-
dicated above, company witness Ratcliff testified he knew it
was either Sines, Riffle, or Price who was trying to get in the
Union.) Riffle denied that he or Sines was a ringleader, and
"said that the man what should have been fired" (evidently
referring to Price) "did not get fired."
Treasurer Wills testified that it was at this time on Satur-
day, November 17 (2 days after Riffle's discharge and 1 day
after Sines'), that he "really knew anything about" any union
activity, although he later admitted, at one point, that when
he discharged them, he knew that they were union "sympa-
thizers." (According to Wills, Riffle "come out to my house
on Saturday night to ask me if he was fired because of his
activity with the Union, and told me if that's the case I had
the wrong man . . . I fired the wrong man. And I said, `Well,
Larry, that isn't the reason you were fired, but if you were,
why, I mean it's an unfortunate situation."'
Both Treasurer Wills and President Keaton denied that
they were aware of Riffle's and Sines' union activity at the
time of the discharges. However, when testifying on the
stand, Wills and Keaton impressed me as being more con-
cerned with presenting a plausible defense than reporting
accurately what had transpired. I discredit their denials.
Even apart from what Treasurer Wills told the two em-
ployees upon discharging them, I infer from the credited
evidence that both Wills and Keaton were aware that Riffle
and Sines were supporting the Union, and that Wills and
Keaton at least suspected (as did company witness Ratcliff)
that the two discharged employees were union ringleaders. I
therefore reject the contention made in the Company's brief
that "it is impossible to find from the record herein that
Respondent was aware of union activity on the part of these
two employees."
C. Discharge of Larry Riffle
Truckdriver Riffle was hired in February 1973. He was
injured in an accident about 2 months later , and upon advice
of his doctor was permitted to return to work about October
1 on a temporary basis. He was scheduled to be off from work
on Friday, November 16, to go to Columbus for his perma-
nent release . (This was about 3 weeks after he attended the
union meeting at employee Price's home, and began cam-
paigning for the Union).
Because of the doctor's appointment on Friday, Riffle
asked Treasurer Wills after work on Thursday evening if he
could have his paycheck, and "what will I need from the
doctor to give me a permanent release " for full employment.
Wills told him that he would not need anything because his
services were no longer needed. Riffle asked why. From that
point, the testimony is in dispute . According to Riffle, Wills
said , "You know when you signed that card you signed your
job away. That was your job." Admittedly, Riffle then denied
having signed a union card, although he had.
According to Wills, however, when Riffle asked why he
was being discharged, Wills responded, "I told him it was
because of this problem that we had been having all along. It
hadn't gotten any better and I just couldn't use him any
more." In explanation , Wills testified that this "problem"
was that Riffle "consistently ran later and later" on the Cir-
cleville to Logan run, upsetting General Electric's assembly
line production at the Circleville plant.
From his demeanor on the stand, Riffle impressed me as
being an honest, forthright witness . I credit his version of
what was said at the time of his discharge, and therefore find
that he was discharged because of his union activity in viola-
tion of Section 8(a)(3) and (1) of the Act.
However, even assuming that Riffle 's card signing was not
mentioned at the time of his discharge, and assuming further
that Treasurer Wills mentioned the "problem" of Riffle run-
ning late , I find that the discharge was pretextual.
There previously had been difficulty in properly timing the
runs between Circleville and Logan, and President Keaton
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had talked to Riffle about his being late on several occasions.
However, Keaton had learned from Riffle what was causing
the trouble, and corrective action had been taken.
On the first occasion, early in October, Riffle's truck was
not running properly. It is undisputed that this problem was
corrected when it was discovered that the air filter in the
tractor "was so dirty you couldn't see through it," and the
truck began giving better performance when "we taken the
filter out and run the truck without a filter."
Another problem arose when the third driver on the run,
Mark White, was not doing his share of the work, and began
working before scheduled. (White owned his own truck, and
was not a company employee.) The drivers were scheduled to
begin work at 4, 5, and 11 a.m., because only one truck was
to be loaded at a time at Logan. It is undisputed that White
upset the schedule by not hauling his share of the empty racks
(leaving them for the other two drivers to haul), and by
coming to work at 10:30 (instead of 11 o'clock), and taking
the trailer which Riffle (who was scheduled to precede him)
should have taken, causing Riffle to fall behind while waiting
for another trailer to be emptied or loaded with racks. (The
three drivers each made three or four trips to Logan a day.)
It is undisputed that before Riffle's discharge, the schedule
had been changed so that White would start his first trip at
noon. On another occasion, around the first part of Novem-
ber when President Keaton asked Riffle about being late, the
loading of Riffle's truck at Logan had been delayed by two
outside trucks arriving off schedule. Inasmuch as this also
delayed White, who had other trips to make whereas Riffle
was on his last trip, Riffle told White to go ahead of him.
I discredit the conflicting testimony by Treasurer Wills and
President Keaton about Riffle being previously threatened
with discharge, and credit Riffle's testimony that he was
never so threatened. Keaton had merely asked Riffle for an
explanation whenever he was late. (Keaton repeated this
question on the evening of Riffle's discharge, although by this
time, the scheduling problem had been largely remedied. I
note that when General Electric's shipping and receiving
foreman at Logan was called as a company witness, he testi-
fied that the loading problem had been straightened out after
he made three or four calls to the Company. However, he
could not recall when this problem arose-whether it was "in
September, October, or, I don't know, maybe November.")
In its brief, the Company contends that during the week of
Riffle's discharge, Treasurer Wills observed him "bringing
his truck back onto his proper route from off the country road
leading from his home." This, however, occurred about 2
weeks before the discharge, as Riffle offered to substantiate
by producing his long-distance telephone bill, showing when
he telephoned his lawyer from his home. (President Keaton
had authorized him to take time from his run to place a call
to his lawyer. When he stopped at Mansello's
restaurant-where he customarily ate lunch-and found that
the telephone was out of order, he went to his home to place
the long-distance call.) The Company did not mention his
going off his route at the time. I find that it raised the point
at the trial as an afterthought. (I note that in its brief, the
Company also contends that Wills observed Riffle stop first
at Mansello's and then stop again at another restaurant, the
Highlander, only 7 miles away. However, Wills' testimony
does not establish that he saw Riffle stop at both restaurants
on the same day. Riffle recalled stopping at the Highlander
only once, and credibly denied that he would stop at Mansel-
lo's and then at the Highlander.)
I find that the Company belatedly seized on the scheduling
problem, and the one instance of Riffle leaving his route to
make a telephone call, as pretexts for his discriminatory dis-
charge.
D. Interrogation and Discharge of Leonard Sines
According to truckdnver Sines, Treasurer Wills was just as
candid in disclosing a discriminatory reason for discharging
him as truckdriver Riffle testified Wills had been the evening
before-suggesting that at the time, Wills was acting without
the benefit of legal advice.
Sines testified that on Thursday night, November 15, Wills
"stopped down at my house and asked me would I take Mr.
Riffle's run the next morning to Logan, four runs, because he
had a doctor's appointment. I didn't know that Mr. Riffle
was fired." Then after work on Friday, when Sines went to
the office to hand in his bills, Wills pointedly asked him, "Did
you sign a card?" Trying to be evasive, Sines responded,
"What for?" In the conversation, Wills announced, "Well, we
can't use you no more." Sines asked what he meant, and Wills
said, "We can't use you no more because we've been having
a lot of complaints about you. You're talking to the men and
you're trying to organize the Union and causing trouble
among the men." Also in the conversation, Wills said, "You
know that Mr. Manfredi will not allow a union in here....
Mr. Manfredi will close it down and bring his own trucks
in here. . . . The local G.E plant down here would not let
the trucks in there with a union." (Sines was acquainted with
Manfredi, having previously worked for him.) Sines left, ap-
plied for unemployment compensation, and gave as the rea-
son for his discharge, "I signed a union card."
When called as a defense witness and asked if Sines was
telling the truth about what was said, Treasurer Wills an-
swered, "Not as far as I'm concerned he isn't," and related,
"I told him that we wouldn't need-his services any more. And
he really didn't say much of anything. He just said okay." I
consider such a nonchalant response-by an employee who
was having difficulty supporting his family-to such a sud-
den, unexplained announcement of termination to be im-
plausible. I discredit Wills' account, and credit the version
given by Sines, who impressed me as being the more trust-
worthy witness. Accordingly, I find that the primary reasons
for Sines' discharge were his organizational efforts and the
fear of unionization, and that the discharge violated Section
8(a)(3) and (1) of the Act. I also find that Wills' interrogation
of Sines about signing a union card was clearly
coercive-tending to cause employees to fear discharge for
engaging in this protected activity-and violated Section
8(a)(1) of the Act. The case cited by the Company, Rogers
Brothers Company of California 169 NLRB 830, 833, 835
(1968), is inapposite, There, a different type of interrogation
at the time of discharge was found not to be "designed to get
information," and was considered only "a fragment of the
picture disclosing a violation of Section 8(a)(3)" and not an
independent violation of Section 8(a)(1). Here, I find, the
Company was seeking to get confirmation of its belief that
K & W TRUCKING, INC. 131
Sines was a union ringleader. (The General Counsel did not
offer evidence to prove other alleged interrogation.)
Moreover, apart from what was said at the time of Sines'
discharge, I find that this discharge, like Riffle's sudden dis-
charge the day before, was discriminatorily motivated.
Sines , who had been employed for only about 3 months,
had proved to be a good driver. He had been complimented
for his good work, and "I was never called in the office and
called down for anything" before his discharge. Taking care
of his truck, he repeatedly took it home over the weekend,
when he washed and cleaned it. '
However, Sines and other drivers were diligently seeking
better wages and better equipment to drive. As elicited by the
company counsel on cross-examination, Sines credibly testi-
fied that he was required to operate equipment which could
not be legally driven on the highway. "We were told [by
Wills] to bypass P.U.C.O. checks, and we were told to bypass
the scales." The drivers would report needed repair, but they
were often told, "Well, we'll get to it" some other time. The
left headlight on Sines' tractor was out for "a little bit over
a week" before he finally succeeded in getting it fixed. Sines
made one trip to Bucyrus with a leaking air valve, with hardly
any brakes. The fire extinguisher on the truck was not main-
tained. (I find that Treasurer Wills was being less than candid
when he testified that if the drivers "have anything wrong
with their trailers or tractors, and if they're running it that
way, as far as I'm concerned it's their fault." I also note that
Sines and truckdriver Price decided to seek union representa-
tion when they were discussing frequent equipment break-
downs, getting P.U.C.O. written warnings, and difficulty in
getting repairs made. "Price said several times that they've
asked for a raise, and better equipment, but nothing's ever
been done about it" and "the only thing that could straighten
it up would be to get a union in there.")
It is in this context that the Company now contends that
Sines was a constant complainer, and that he "was discharged
because he was an unhappy and unsatisfactory employee with
a problem in attitude rather than ability. The General Coun-
sel has established no connection between Sines' signing a
union card and his termination."
President Keaton not only testified that Sines was continu-
ally complaining to him about his wages, but he claimed that
Sines also complained to a General Electric official (Foreman
Easter), who asked Keaton, "Don't you pay Sines anything?
What kind of an outfit have you got down there?" (I note
that, when Easter was called as a company witness, he was
not asked to confirm this testimony.) Keaton also testified
that Sines complained about the equipment, but Keaton did
not deny that the complaints were justified. Keaton further
testified that Sines complained about other things, but mostly
about his wages. However, Keaton did not definitely dispute
Sines' credited testimony that he was never criticized about
anything before his discharge. Keaton admitted that Sines
"can do his work." He asserted that the basic reason for
Sines' discharge was that "he is a complainer," yet elsewhere
testified that he did not make the decision to fire either Sines
or Riffle, and that he did not know when Wills made his
decision to do so.
Treasurer Wills, who discharged Sines and Riffle, revealed
on the stand that "These two men are the first two drivers I've
fired in all the years that I've had trucks." When asked if
there was any reason why he chose to discharge them at the
same time, he answered, "Well, I guess I just got disgusted
with the whole thing with both of them, and just decided it
was time to make a change." Specifically concerning Sines,
he testified that "as a matter of fact I think what really kind
of set it off at the last is he called up one day [within a week
of Sines' discharge] and wanted me to bring out another
trailer for him because he had a fire on the brakes of his and
he said, `You can send somebody out and pick up this piece
ofjunk."' When asked by company counsel if it bothered him
for a driver to call his equipment "junk," he answered,
"Yeah, it does, because I take pride in it. We're constantly
updating our equipment, and I don't expect a driver to drive
anything that I wouldn't want to drive." Concerning this
incident, Wills also testified that Sines denied having the air
lines turned around and claimed that President Keaton found
that they were. (When testifying, Keaton neither confirmed
this claim, or criticized Sines' work performance in any way.)
Following Sines' discharge, Treasurer Wills protested in
writing Sines' receipt of unemployment compensation. When
asked over the telephone for a specific reason, Wills said,
"Well, for instance I got a call from General Electric at
Bucyrus asking me if Circle Transport was going to shut
down, because Mr. Sines was up there and had told them on
the dock that that was the last they were going to see of Circle
Transport trucks for some time." Although this purportedly
happened in October, according to Wills, he had said nothing
to Sines about it. Sines credibly testified that he never made
such a statement, but instead commented at that General
Electric plant that "we were going to sign union cards." (In
view of the fact that Wills told Sines when discharging him
that General Electric "would not let the trucks in there with
a union," the Company may have learned from General Elec-
tric in October about the organizational drive.) The state
unemployment office found that Sines was discharged with-
out just cause and was entitled to compensation. (That office
sustained the claim-apparently made by the
Company-that Sines was discharged for complaining about
his wages and the condition of his truck, but found that "He
did not relate these complaints to the employees, nor did he
cause any turmoil among them. Claimant performed his work
to the best of his ability and followed all the directions of his
supervisors. Claimant had never given the employer's ship-
pers any reason to be concerned about him.")
Evidently because of the fact that Sines was a good worker,
and had never been criticized for complaining or for anything
else, the Company attempted to help justify his discharge by
calling a number of witnesses to testify about his prior em-
ployment. After reviewing this testimony ( much of which
was in Sines' favor), I find that none of this testimony has a
direct bearing on whether Sines' discharge was dis-
criminatorily motivated.
After weighing all the evidence and surrounding circum-
stances, I find that the Company was concerned about Sines'
complaining only insofar as it might contribute to unioniza-
tion of the employees.
Accordingly I find , as alleged in the complaint, that the
Company discriminatorily discharged and refused to rein-
state Leonard Sines as well as Larry Riffle, in violation of
Section 8(a)(3) and (1) of the Act.
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS of LAW
1. By discharging Larry Riffle on November 15 and Leon-
ard Sines on November 16, 1973, and thereafter refusing to
reinstate them, because of their union activity, the Company
engaged in unfair labor practices affecting commerce within
the meaning of Section 8(a)(3) and (1) and Section 2(6) and
(7) of the Act.
2. By engaging in coercive interrogation, the Company
violated Section 8(a)(1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find it necessary to order the Re-
spondent to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act.
The Respondent having discriminatorily discharged two
employees, I find it necessary to order the respondent to offer
them full reinstatement, with backpay computed on a quar-
terly basis plus interest at 6 percent per annum as prescribed
in F W. Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), from date
of discharge to date of proper offer of reinstatement.
Upon the foregoing findings of fact and conclusions of law,
upon the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER2
Respondent, K & W Trucking, Inc., d/b/a Circle Tran-
sport, Circleville, Ohio, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee for supporting or joining Teamsters Local 413 or
any other union.
(b) Coercively interrogating any employee about union
support or union activity.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Offer Larry Riffle and Leonard Sines immediate and
full reinstatement to their former jobs or, if their jobs no
longer exist, to substantially equivalent positions, without
2 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes
prejudice to their seniority or other rights and privileges, and
make them whole for their lost earnings in the manner set
forth in the Remedy.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records; social security payment records, timecards, person-
nel records and reports, and all records necessary to analyze
the amount of backpay due under the terms of this recom-
mended Order.
(c) Post at its facilities in Circleville, Ohio, copies of the
attached notice marked "Appendix."' Copies said notice, on
forms provided by the Regional Director for Region 9, after
being duly signed by Respondent's authorized representative,
shall be posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed insofar
as it alleges violations of the Act not specifically found.
3 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after
trial, that we violated Federal Law by discharging employees
for supporting a union and by otherwise interfering with our
employees' right to join and support a union:
WE WILL OFFER full reinstatement to Larry Riffle and
Leonard Sines, with backpay plus 6-percent interest.
WE WILL NOT discharge any of you for supporting
Teamsters, Local 413 or any other union.
WE WILL NOT coercively question you about union
support or union activities.
WE WILL NOT unlawfully interfere with your union ac-
tivities in any similar manner.
K & W TRUCKING INC, d/b/a CIRCLE
TRANSPORT