Friendship Materials, Inc.

National Labor Relations Board - Board Decisions

Feb 4, 1963

140 N.L.R.B. 1037 (N.L.R.B. 1963)

FRIENDSHIP MATERIALS, INC. 1037
WE WILL NOT close or threaten to close our plant or take any other reprisal
against our employees because they may select Amalgamated Clothing Workers
of America , AFL-CIO, or any other union , to represent them.
All our employees are free to become or remain members of any union and they
are also free to refrain from joining any union.
BROWNWOOD MANUFACTURING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 6th Floor,
Meacham Building, 110 West 5th Street, Fort Worth 2, Texas , Telephone No.
Edison 5-4211 , Extension 2131, if they have any question concerning this notice or
compliance with its provisions.
Friendship Materials, Inc. and International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers of Amer-
ica, Ind ., Local 247. Case No. 7-CA.-3695. February 4, 1963
DECISION AND ORDER
On August 15, 1962, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action as set forth in the attached Inter-
mediate Report. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices, and recom-
mended that the allegations of the complaint pertaining thereto be
dismissed. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report and the entire record in the case, including the excep-
tions and brief, and finds merit in the exceptions of the Respondent.
The Board, accordingly, adopts the findings of the Trial Examiner
only to the extent that they are consistent with this Decision and
Order.
The complaint alleges and the Trial Examiner found that Re-
spondent violated Section 8(a) (3) and (1) of the Act by discrimina-
Respondent's request for oral argument Is hereby denied, since the record , exceptions,
and brief adequately present the issues and the positions of the parties.
140 NLRB No. 92.
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
torily discharging five of its employees because they had engaged in
protected concerted activity by filing formal grievances against the Re-
spondent through their recognized collective-bargaining agent.
The alleged discriminatees are owner-operators of single -axle flat-
bed trucks in which they hauled Respondent's building materials on
a piecework basis of compensation. Their compensation and other
working conditions were governed by a collective-bargaining agree-
ment between Respondent and the Charging Party. The owner-
operator sections of that agreement provided, inter alia, for payment
of minimum hourly wages and truck rates. The Respondent did not
have a timeclock and did not otherwise record the actual hours worked
by its drivers, and there were frequent protests that the drivers' wages
did not equal the hourly minimums established by the contract. Such
complaints or claims were generally adjusted informally by addi-
tional payments.
In December 1961, Respondent's president, asserting that grievances
were increasing to the point where it was difficult to keep track of
them, required that all future grievances be submitted in writing and
through the Union. During January 1962, an undetermined but ap-
parently inordinately great number of grievances were filed. Not all
of these grievances involved owner-operators; some were filed by
drivers of company-owned trucks who were paid a straight hourly
rate. A series of meetings between the Union and Respondent, be-
ginning on January 31, was held in an effort to dispose of these griev-
ances. After the January 31 meeting, the Local's business agent asked
the vice president of the Local, Florini, to assist him, and both met
with Respondent's president and the latter's brother on February 7,
at which time three of nine current grievances were settled.'
At the February 7 meeting on grievances, Respondent's president,
contending that he was losing money and would have to effect econo-
mies, proposed conversion from single-axle to tandem trucks for his
owner-operators. There was uncontradicted testimony that this
changeover had been considered by the Respondent for approximately
1 year. Florini agreed to the conversion to tandems with the caveat
that the men must be afforded an opportunity to purchase tandem
equipment and that they must not be replaced by other owner-
operators of single-axle trucks. At this same meeting it was also
agreed that a timeclock to record the hours worked by owner-
operators would be installed and that future wage payments would
be computed on an hourly basis. Two days later the Respondent
notified the owner-operators by letter dated February 9 that they
must make arrangements to procure tandem-axle, 16-foot platform
trucks within 7 days or their employment would be terminated.
2 As found by the Trial Examiner , Respondent has no history of antiunion conduct and
none is claimed During the discussion of grievances , Respondent expressed a willingness
to arbitrate pursuant to the arbitration clause of the contract
FRIENDSHIP MATERIALS , INC. 1039
The union business agent, the three employees affected, and some
other employees met with Respondent 's president on February 14 to
discuss grievances filed as an aftermath of the letter of February 9,
described above. The meeting produced no agreement on the ques-
tion of tandems . The Union , which had been offered proof of the
Respondent 's unfavorable financial situation , did not object to the
requirement that tandems be procured , but did argue for an exten-
sion of the 7-day limitation, which Respondent refused to grant.
Respondent 's president afterward insisted that he would have been
satisfied with a commitment that the drivers would procure tandems.
None of the owner-operators procured tandems nor did they then or
later indicate that they would do so . On February 19, Tiffany , Gields,
and Callahan were handed letters which stated that they were being
terminated because of their failure to secure tandems.
The Trial Examiner found that Respondent had violated Section
8 (a) (3) and (1) of the Act by discharging the five employees named
in the complaint. In the case of Gields, Tiffany, and Callahan, he
found Respondent had discharged them because they had resorted to
formal, written grievances presented through their bargaining rep-
resentative rather than to informal ones theretofore brought directly
and individually to the Respondent. While conceding that the actual
discharge may have been immediately prompted by the three em-
ployees ' failure to secure tandems , he concluded that the notice re-
quiring a change to tandems was issued because of the protected
concerted activity of these employees and that the notice was , there-
fore, in itself , discriminatory . One of the factors relied upon by the
Trial Examiner to support this finding of an 8 ( a) (3) violation was
the asserted absence of an ecomonic motivation underlying Respond-
ents' decision to require conversion to tandems . The Trial Examiner
reasoned that inasmuch as these employees are compensated on a
piecework basis, "a change from one type of truck to another (or to a
wheelbarrow ) would not meet the Company 's economic need in view
of the piece rate payment."
The Trial Examiner further found that two other employees, the
Blackburn brothers, were unlawfully discharged, although they had
not joined in the formal complaints found to have prompted the dis-
charge of Gields, Tiffany, and Callahan, nor had they received the
notice of February 9, or otherwise learned of the requirement to obtain
tandems before February 20. He also found that on February 5, the
Blackburns filed a grievance with the Union in which they complained
of the Respondent 's failure to make income tax and social security
deductions from their wages and to pay them holiday or vacation pay.
Like the other three dischargees , the Blackburn brothers had been
paid on a piecework basis, so the Trial Examiner concluded , as he did
in the case of the three others, that there was no saving to Respondent
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in requiring a tandem of the Blackburns. Respondent contended that
the Blackburns were not his employees, but employees of another com-
pany, Willow Run Dry Wall, and that he paid them on behalf of
Willow Run. The Trial Examiner rejected this contention. He
found that, as the Blackburns received a piece rate, the inclusion of a
tandem bed requirement in the letter to them on February 20 was
an attempt by the Respondent to be consistent in its treatment of the
other owner-operator. The Trial Examiner further concluded that
when the Blackburn grievance was shown to Respondent at the meet-
ing of February 14, Respondent was prompted to action because of this
concerted activity.
We disagree. Contrary to the Trial Examiner, we conclude that the
record evidence establishes that conversion to tandems would result
in substantial economic benefit to Respondent. The Trial Examiner,
himself, solicited and secured a stipulation that conversion to tandems
would effect a 20-percent saving in Respondent's operating costs if
company-owned trucks were used, or if hourly rates were paid. Un-
contradicted testimony shows that Respondent had agreed, on
February 7, to install a tinieclock for, and pay hourly rates to, owner-
operators. It is evident that the Trial Examiner failed to consider
this evidence in reaching the conclusion that the proposed conversion
could confer no economic benefit upon the Respondent, because it was
paying piece rates.
The Trial Examiner further concluded that Respondent discrim-
inated against the owner-operators because of their resort to formal,
written grievances in preference to informal, oral grievances with re-
spect to wage discrepancies between hourly and piecework rates.
While his report concedes that the Union had not newly entered into
the grievance picture, he states that recourse to it on "this longstand-
ing pocketbook issue of payment according to the contract was new."
Not only is the record silent as to whether such differentials had pre-
viously been the subject of formal grievances, but that such differ-
entials were the subject of the grievances in question is itself doubtful.
At the February 7 meeting on grievances only three of nine then
pending were disposed of before the sudden illness of the Union's
vice president prematurely terminated the session. None of the three
grievances adjusted at that meeting explicitly relates to claims for
differential payments of the type which the Trial Examiner found
to have been formerly settled on an informal basis. Rather, the
grievants complained generally of matters unrelated to rate differ-
entials and, specifically, of the assignment of dry-wall hauling jobs
to an independent contractor and to other haulers who, apparently,
were not employees of the Respondent. Furthermore, the record does
not reveal the nature of the grievances left unresolved at this meet-
FRIENDSHIP MATERIALS , INC. 1041
ing, six in number. Moreover, the testimony of Richard Tiffany and
Respondent 's president establish that resort to formal , written griev-
ances was at the insistence of Respondent 's president at the Decem-
ber 15 meeting . The uncontradicted and corroborated testimony con-
cerning the statements of Respondent 's president at that meeting was
as follows :
Now do me a favor. If you have any grievances put them in
writing. If you have any problems put them in writing. Give
me a chance to analyze it and see if it makes sense . You have got
a contract . You have got a good business agent. You have had
good business agents and I am ready , willing and able to sit
down and try to make sense. Now, let's get out of the office. If
you have something you want to talk about put it in writing.
The absence of union animus and of antagonism to concerted action
exemplified in the testimony quoted above contrasts sharply with the
Trial Examiner 's contrary findings.
A further circumstance cited by the Trial Examiner in support of
his ultimate conclusion is a remark attributed to Respondent 's presi-
dent which is alleged to have been made during the grievance meeting
of February 14, which followed the issuance of the February 9 letters
requiring tandems. Respondent 's president ( Edward Rosenberg) is
alleged to have said that , since the men were going by the contract,
he would also go by it. The Trial Examiner 's discussion of this re-
mark suggests that he regarded it as a retaliatory measure, and ac-
corded it considerable weight in reaching his conclusions . Rosen-
berg's purported remark appears in the record in the testimony of
Richard Tiffany , a former owner -operator alleged to have been un-
lawfully discharged by Respondent . Tiffany stated that it was made
in response to Business Agent King's protestation that 7 days was
too brief a time for the purchase of tandems . The actual remark, as
related by Tiffany, was, "They want me to abide by the contract. I
am going to abide by the contract one hundred percent, too, and
seven days is the limit." The Trial Examiner credited Tiffany's tes-
timony regarding its utterance on the grounds that it was undenied
and that having observed Respondent 's president , he could believe
that he gave vent to his feelings in that manner.
Respondent excepts to the inferences drawn from this testimony.
While Respondent agrees that Rosenberg was not questioned specif-
ically concerning it while on the stand , it argues that by omitting
reference to any such remark while relating the substance of the long
discussion which took place on the occasion in question he, in effect,
denied that this remark was made; and that since the Trial Examiner
did discredit all of the remainder of Tiffany 's testimony, this testimony
has little probative value.
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although we are not persuaded that Respondent's president made
the remark in question, we do not find it necessary to pass upon the
credibility of Tiffany in this specific matter. We are of the opinion
that the context in which the remark appears divests it of violative
force even if uttered by Respondent's president as alleged by Tiffany.
Had it appeared in a context of violations or of manifest hostility to
collective bargaining, we might be disposed to accord it probative
significance, as did the Trial Examiner. On the record before us,
however, we perceive no evidence of unlawful purpose which would
endow this casual remark with controlling significance to justify
a finding of violation. Our findings concerning the remark attributed
to Respondent's president discussed above apply with equal force to
another remark, imputed to the president by Tiffany, to the effect that
after the employees bought other trucks, the company would have the
right to refuse to rent them, and in a short time, request that different
equipment be procured. In a setting where none of the employees
gave any indication that they would purchase tandems if the time was
extended and there is no showing of union animus , we cannot base a
finding of violation on the incidental testimony of a witness who is
substantially discredited by the Trial Examiner.3
The Trial Examiner found that Respondent had discharged the
Blackburn brothers, the other discriminatees named in the complaint,
in order to be consistent with his treatment of the other alleged dis-
criminatees, Tiffany, Gields, and Callahan. The Blackburns, like the
others, were discharged for failure to procure tandem-axle trucks.
They were discharged after filing a single grievance relative to deduc-
tions from their pay of income taxes , social security, and similar with-
holdings. There was some dispute as to whether the Blackburns
were employees of Respondent or of another employer, but, in the
light of our ultimate determination, it appears unnecessary to resolve
this issue4 If, as the Trial Examiner found, Respondent discharged
the Blackburns in order to be consistent with his treatment of the
other owner-operators, it follows that their cases turn upon the law-
fulness of the discharges of Geilds, Tiffany, and Callahan.
On the basis of our examination of the record as a whole, including
the evidence of Respondent's economic difficulties, the long history of
amicable collective bargaining, the absence of union animus or hostility
to collective bargaining, the yearlong considerations of the changeover
to tandem trucks, and the contradictory findings of the Trial Exami-
ner, we are persuaded that the General Counsel has not established by
8 A portion of Tiffany's testimony was specifically discredited by the Trial Examiner as
a fabrication.
* Respondent's decision to treat them in the same manner as other employees appears to
be a concession that they are his employees rather than independent contractors as lie
had previously contended.
FRIENDSHIP MATERIALS, INC. 1043
a preponderance of the evidence that either the notice requring tan-
dems or the discharge of the employees who failed to comply therewith
was motivated by discriminatory considerations.
Inasmuch as we have adopted the Trial Examiner's recommendation
for the dismissal of other allegations of the complaint, we shall dis-
miss the complaint in its entirety.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT AND RECOMMENDED ORDER
The complaint herein (issued April 27, 1962; charge filed March 7, 1962) alleges
that the Company has violated Section 8(a)(3) of the National Labor Relations
Act, as amended, 73 Stat. 519, by notifying Clarence Gields, Richard Tiffany, and
Phillip Callahan on or about February 9, 1962, and J. W. and Willis J. Blackburn
on or about February 20, that they would have to acquire tandem trucks in order
to continue their employment, by terminating the employment of Gields, Tiffany,
and Callahan on or about February 19, by notifying the Blackburns on or about
February 20 that they were no longer employees of the Company but were being
transferred to the employment rolls of one of the Company's customers, and there-
after failing and refusing to reinstate the five, because they engaged in union and
other protected concerted activities; and Section 8(a)(1) of the Act by said alleged
acts and by questioning employees concerning their concerted activities and union
sympathies, threatening employees in connection with protected concerted activities,
and promising benefits to employees if they ceased such activities. It was later
agreed that the five were employees, not independent contractors, but the answer
otherwise denies the allegations of violations, alleging that Gields, Tiffany, and
Callahan were notified that they would have to arrange to obtain tandem trucks,
while with respect to the Blackburns the Company's position is that their employ-
ment was mutually terminated.
A hearing was held before Trial Examiner Lloyd Buchanan at Detroit, Michigan,
from June 13 to 15, 1962, and at the close the General Counsel and the Company
were heard in oral argument.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR)
1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED
It was admitted and I find that the Company, a Michigan corporation with prin-
cipal office and place of business in Detroit, Michigan, is engaged at wholesale in
the sale of building materials; and that during 1961 it purchased building materials
valued at more than $200,000, of which materials valued at more than $100,000
were transported to said place of business directly from points outside the State of
Michigan. It was stipulated and I find that the Company is engaged in commerce
within the meaning of the Act.
It was stipulated and I find that the Union is a labor organization within the
meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The alleged violation of Section 8(a) (3)
It will be seen that the findings of discrimination, infra, are based on testimony
which is largely uncontradicted and on that offered by the Company. It is there-
fore unnecessary to recite instances of unreliability in the testimony of various
witnesses. The facts thus accepted indicate the motive for the action taken and on
these, facts as testified to and motive indicated, are based the findings herein.
The evidence indicates that in the past and up to the time of the events before
us the Company had had harmonious relations with the Union and had even en-
couraged union membership. Nor do these events appear to have disturbed those
relations with the Union. But this harmonious arrangement has apparently not
been scored with adequate parts for the employees. Our interest is with the events
themselves and whether they indicate violation of the Act.
681-492-63-vol. 140-67
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is claimed that the Company's attitude toward these longtime employees changed
because of the recent insistance via formal grievances and through their union repre-
sentatives that they be paid an hourly rate instead of on a piecework basis and that
they receive what were referred to as fringe benefits. We are thus especially con-
cerned with the events closely preceding the termination of their employment. That
there was economic basis for a change from piecework to hourly rates with different
equipment is clear. But the question is whether the changes were in fact made be-
cause of economic reasons or whether they were prompted or triggered by the em-
ployees' concerted activities.
1. Gields, Tiffany, and Callahan
These employees, owning and operating their own single-axle flat-bed trucks, were
paid on a piecework basis. To conform with the contract provisions for payment
of minimum hourly truck rates and drivers' wages, the Company, as Lester Rosen-
berg (brother of Edward Rosenberg, president, who is referred to herein by his
surname alone) testified, allocated the piecework earnings by computing the number
of hours which such earnings would represent at the given rates. This was done
without considering the number of hours actually spent by the employee: the Com-
pany kept no record of hours worked. The employees frequently complained that
for various reasons their earnings did not in fact represent the time spent. These
complaints and claims were informally "adjusted" between the Company and the
individual employee; this had for some time been "a big source of the problem" for
the Company.
While working grievances had previously been submitted to the Company by the
Union and handled by the latter's representative, King, a number of grievances were
submitted to the Company on or about January 22, 1962, not through the Union,
but apparently by the employees themselves. (Included were a number of other
men whose status and situation were not explored at the hearing.) The Union un-
dertook to handle these with the Company, and a meeting was held on January 31.
King then asked Florini, a union vice president, to assist him, and both of these met
with Rosenberg and another brother, Jack, on or about February 7. At least some i
of the batch of grievances were discussed and settled at this time; they "did (not)
have any trouble resolving them." These grievances included items of pay which,
as noted, had previously been handled informally by the employees themselves and
individually. (They also alleged other violations of the union agreement.)
In fact, no problem developed with the Union even when Rosenberg, declaring
that he was losing money and that he would have to effect economies, said that
under the contract he had the right to ask the employees to buy tandem-axle trucks.
Florini agreed, pointing out that the Company should give the men "opportune time
to purchase this equipment," and that it was not to replace them with others who had
only single-axle trucks. (I do not rely on this latter remark as evidence that Florini
recognized that Rosenberg sought merely to replace some of his drivers.) The
Company and the Union agreed at this meeting that Rosenberg would notify the
men by letter that they would have to buy tandem trucks?
On February 9 the Company distributed to these employees personally or by
registered mail the following letter:
We are hereby giving you notice that we will require a platform tandem truck
at least 16 ft. to haul our materials. Please make arrangements for same within
the next seven (7) days.
Be advised that this letter is notice to you, and we will have the privilege
of discontinuing your services if the above is not taken care of to our satisfac-
tion.
One or more of the employees took this up with the Union, and on February 14
Rosenberg and his two brothers met with King of the Union and these three and
some other employees. According to Tiffany, who testified in detail concerning
this meeting, Rosenberg said, inter alia, that:
1. Since the employees had filed grievances and wanted him to abide by the
contract, he would abide by (or follow) the contract also.
2. Seven days was the limit, as set forth in the February 9 letter.
'Apparently three of a total of nine grievances were disposed of on February 7 As a
company representative declared, "Grievances were coming in pretty fast"
2 The immediate need for a change here indicated, and Florini's early statement that
the men would be notified to buy trucks, bear on the question, infra, which later arose
whether the Company was or would have been satisfied had the employees done less than
actually obtain the trucks.
FRIENDSHIP MATERIALS, INC. 1045
3. Trucks must be 100 percent to his specifications.
4. After they bought other trucks, he would have the right to refuse to rent them,
and in ,a short time he could request that they get different equipment.
In a prehearing affidavit concerning this meeting , Tiffany specifically included the
second and third of these statements . The second is not so remote from his testi-
mony concerning the first as to indicate that the omission of the latter from his
affidavit warrants a finding that it was not made by Rosenberg. As much can be
said after considering the third and the fourth statements, the latter of which is not
included in Tiffany's affidavit. Nor is there any issue concerning variance by either
Callahan or Gields, both of whom testified that Rosenberg, referring to the employees'
reliance on the collective -bargaining contract , said that he too would go by it and
would not give them more than 7 days to get tandem trucks. Rosenberg denied that
he had insisted that the men have the new equipment within 7 days; he had allegedly
said that he would be satisfied if they arranged within that time to get the trucks,
and that he would give them more time if they said that they would get them.
Rosenberg did not deny that he said that, since they were going by the contract, he
would also. Further, having observed him, I can believe that he did give vent to his
feelings in that manner.
Of course, Rosenberg had every right and the obligation to observe the contract.
But such a statement made at that time and in that context indicates that he had
in mind and was motivated at least in part by the fact that the employees had taken
collective action under the contract through their representatives; this displeased him
and, whatever his indicated attitude toward the Union generally, he now took steps to
discourage such action no sooner had the first shrill vagitus issued. This is not to say
that the Union had newly entered the grievance or general discussion picture. But
recourse to it on this longstanding pocketbook issue of payment according to the
contract was new.
On February 19, Tiffany, Callahan, and Gields were told that the Company had
no work for them, and each was handed a letter which stated that his services were
being terminated pursuant to the union contract because he had not complied with
the letter of February 9.
It was stipulated that a tandem truck is larger than the single-axle trucks referred
to and can carry a larger load; if fully loaded , there is a saving of 20 percent in use
of the tandem over the single-axle truck. Tiffany at the hearing adopted his earlier
testimony elsewhere that he was paid the piecework rate to equal the hourly rate
under the contract although he now explained that the number of hours for which he
was paid differed from the number actually worked . With testimony pro and con
as to whether the hourly rate had in fact been equaled , that it had not is clear
from Lester Rosenberg 's explanation , noted supra, and from Florini's testimony.
Although the latter did not appear to favor the employees ' position , certainly not in
any partisan manner, he testified credibly that at the meeting of February 7 Rosen-
berg declared that if he were compelled to pay minimum hourly rates and fringe
benefits, he would have to operate with tandems . It thus appears that the hourly
rate was not being observed or enforced : it stands uncontradicted that Florini did
not ask for it and did not talk about it later. Nowhere does it appear that, even
with a change in equipment, the Company thereafter paid the hourly rate. Since it
was further stipulated that there is no saving to the Company in the use of tandem
trucks if the owner-operators are paid by the piece, as these were, there was in fact
no economic basis for the proposed change to tandem trucks.
Returning to the earlier ground for finding discrimination, we have seen that
the Company's action was prompted by the employees' concerted activities. This
would constitute discrimination even if hourly rates were applied , with a consequent
saving to the Company by the use of tandem trucks.
In short, under the governing contract with the Union , there could be lawful piece-
work or hourly arrangements , and changes from one to the other ; and also changes
in the equipment which the employer wants used . But the right to make such
changes in the equipment lawfully does not exculpate an employer who acts to limit
concerted activities. Nor does the Union's agreement to a given change determine
whether the change discriminated against the employees affected . (The reason for
such agreement by the union representatives is not of present concern )
The economic reasons for change in operations had been discussed by Rosenberg
for 2 years; his accountant had for a long time presented him with dismal figures.
But nothing was done about this until the employees ' concerted activities herein
with respect to matters which they had previously handled individually and directly
with the Company . The Company , instead of seeking to make adjustments as before
when the employees complained individually, change the jobs and working conditions
completely, requiring that the men get different trucks. Thus what had in the past
been worked out on an individual basis was radically changed , in effect penalizing
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees for acting in concert and attempting to get help through their
collective-bargaining representative. Why, faced with economic problems for a long
time, as counsel for the Company pointed out, the Company only at this time acted
as it did, is nowhere explained. The only new or additional element is the filing of
formal grievances for hourly pay and other matters. It is reasonable to conclude,
in the absence of explanation and in view of the Company's annoyance over grievance
discussions, that these grievances triggered the action taken.
Here it should be noted that, while Rosenberg spoke of putting the men on an
hourly basis, the letters to the employees contained no suggestion of change from
piecework to an hourly rate after different trucks were obtained. There was not a
word about installing timeclocks or otherwise accurately determining the hours spent
on the job and the wages to be paid on that basis: the prospect continued that adjust-
ments would be made as drivers might ask for payment beyond the piece rates. As
owner-operators' wages and truck rental had been computed in the past on the
basis of the piece-rate earnings rather than on time actually worked, it would be
no great change and certainly no problem to apply a higher truck rental rate while
continuing to use piece rates with informal adjustments. Thus a change from one type
of truck to another (or to a wheelbarrow) would not meet the Company's economic
need in view of the piece-rate payment, as is clear from the facts and the stipulation
in that respect; the real change would be elimination of the employees who had
concertedly sought improvement.
Rosenberg testified to a meeting with the union representative and the men on
December 15, 1961. While some things were admittedly agreed upon, he was
admittedly "riled," and asked them to leave his office. The grievances received
on January 22 were assumed by Rosenberg to be an outgrowth of the December 15
meeting and these were discussed at the meeting of February 7. Rosenberg testified
that to the extent that he could figure them out these grievances were resolved.
His admitted annoyance and impatience with continued meetings prompted the
drastic change, not to meet economic conditions but to avoid such grievance ses-
sions and to eliminate those who made them necessary. The men had every right
under the contract to call for payments to meet the hourly rate, and the Company
was obliged to make such payments. The Company, instead, while continuing the
contract and its piecework system, sought only to "eliminate the squeak."
The notice of change was given because of the concerted activities. This is the
violation found. When the Company early in February needed a replacement for
the driver of one of its own trucks, it offered the hourly job to several of these men.
This was no offer of equivalent employment although from the Company's point
of view it would have eliminated one of the sources of the grievances so recently
filed.
An item which we need not consider is whether, having helped the employees with
truck purchases before, the Company could fairly be expected to help them now,
especially Gields, who stated that he could not afford to get another truck; and
whether the failure to offer help even though it was not requested was discriminatory.
Even a proved willingness to share a burden does not nullify the violation in impos-
ing that burden. Nor is it necessary to determine whether the Company directed
the employees to obtain tandem trucks within 7 days or to arrange to obtain them
within that period. While the latter is less drastic, it constitutes an important change
in terms and conditions of employment and, if discriminatory, is violative of the Act.
The letter of February 9 directed the employees to "make arrangements" for tandem
trucks; but this was to be done to the Company's unspecified "satisfaction."
Whether these employees did or did not indicate their ability or willingness to get
tandem trucks is not the issue: the violation occurred in the discriminatory notice that
they get them or arrange to get them. Nor, the discrimination having occurred,
does it matter whether the Company would have given them more time or helped them
to finance the trucks. It is for this reason that we need not here concern ourselves
with the question whether the Company's offer to help Gields financially as it had
before indicates discrimination; or whether Gields is to be charged with failure
to ask specifically for financial help. The discrimination had already occurred.
Finally, Rosenberg's statement on February 14, endorsed by King, that these men
could stay on if they formed their own cartage company does not overcome the
finding of violation. The change in working conditions thus called for or permitted
FRIENDSHIP MATERIALS, INC. 1047
was one aspect of the Company's action taken to meet the employees' concerted
activities. The point is that, whatever the change or proposed change, it was
discriminatory.
2. J. W. Blackburn and Willis J. Blackburn
The Company's position, stated at the hearing, is that the employment of the
Blackburn brothers on February 20, 1962, "ended at that time mutually." These
two worked together since their main work, hauling of dry wall, requires two men.
They had not joined in the formal complaints of January 22, they did not receive
the letter of February 9, and they had no knowledge at that time of any require-
ment to obtain a tandem truck.
The Blackburns on February 5 (there was some uncertainty as to dates) filed
a grievance with the Union, complaining about the Company's failure to make
income-tax deductions, pay for social security, and grant holiday or vacation pay.
We shall soon see that this grievance was shown to the Company on February 14
although it was not submitted by the Union.
For about a year Lester Rosenberg had been telling J. W. Blackburn that he
could not continue him on the payroll; he would set Blackburn up with Anderson
of Willow Run Dry Wall Company, and the brothers could haul for the latter
and anyone else. Lester had spoken of this again in January and most recently about
the middle of February.
During the meeting of February 14, supra, Callahan asked Rosenberg why the
letter of February 9 had been sent to the three only. When Rosenberg replied that
they were the Company's only contract haulers, Callahan included the Blackburns
in that category, Rosenberg allegedly countering that he had no grievances on them.
This would further support the finding, supra, that the action taken was prompted
by the filing of the grievances; but it appears to have been injected by Callahan
into his testimony for that very reason. It appears from a prior statement by Callahan
that Rosenberg explained that he had not sent a copy of that letter to the Blackburns
because he did not think that they were his employees; and that Callahan then
pointed out that they had filed a grievance? At that meeting on February 14,
Tiffany showed the Blackburns' grievance to Rosenberg.
On February 20, the Company issued the following letter to the Blackburns:
This letter is to clear up any confusion regarding the hauling you are doing
from our yard. Please be advised that in the past the hauling you have been
doing for Willow Run Dry Wall has been for them, but we have paid you on
their behalf.
We can no longer do this and have informed Willow Run Dry Wall that they
must pay you direct.
Also, we cannot have you haul for any of the Friendship Companies unless
you get a tandem with a platform bed approximately 16 ft. long, but you are
free to haul for other persons with your own truck as much as you want.
We also would appreciate when hauling for other persons if you can get them
to buy the material from Friendship.
That the Blackburns were employees of the Company, regardless of the statements
and implications in this letter, is admitted and is further shown by Lester Rosenberg's
many talks about a change. Such a change could certainly have been properly
effected for tax and other economic reasons. Since the Blackburns were paid at
piece rates and there would therefore be no saving to the Company, the inclusion of
a tandem bed requirement in the letter to them appears to reflect the Company's
attempt to be consistent in its unlawful treatment of the various owner-operators.
There is no evidence that tandems had been mentioned to the Blackburns; no reason
was indicated for any such mention at that time or previously.
The Company could lawfully ask, as it frequently had, that Anderson Dry Wall
Products do its own hauling. But the Company was now prompted to action and
unlawfully terminated the employment of the Blackburns because of their concerted
activities, if we consider their grievance alone and in conjunction with the activities
s Less than frank as he explained that he was not certain whether they were a cartage
company or owner-operator employees, Rosenberg testified that the Blackburns did not
receive an hourly rate . It is clear that they were owner-operators and employees of the
Company.
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the other employees. This finding is supported by Anderson's testimony, which
I credit. Whether Rosenberg, who later admitted that he called Anderson, asked
him to take over and pay the drivers because he was having union trouble or to
avoid union trouble, action was now taken because of the concerted activity and
the limited union action in that respect. The letters of recommendation and guar-
antee, covering the Blackburns and dated the day after the February 14 meeting,
which the Company gave to Willow Run are a measure of its desire to effect the
change, and contradict the self-serving aspect of the letter of February 20.
B. The alleged independent violation of Section 8(a) (1)
With respect to the allegation that Rosenberg early in January unlawfully
interrogated employees concerning concerted activities, a variance must be noted in
that Willis Blackburn testified that Lester, not Edward, Rosenberg asked him whether
Tiffany had asked him to sign anything, and then advised that if Tiffany asked him
to "sign anything about the union or anything," he should not because it would not
do him any good. The question itself did not cite concerted activities, but the
subsequent statement did. No threat is claimed, and I find that the interrogation
was hardly coercive and certainly minimal.4
On or about April 3, 1962, Rosenberg allegedly approached Callahan and Tiffany,
who were seated in an automobile near the Company's office, and told them in
substance that he would not give them good references so long as they sat out there
instead of looking for work; and that, with better conduct on their part, he might
take them back in 5 or 6 months. Rosenberg at this time also allegedly declared that
the situation had been caused by Tiffany and arose out of his union activities, not
because of any need for tandem trucks. As Rosenberg described what he said,
it is not at all clear that his manner was threatening or that his tone suggested a threat.
I do not believe that Rosenberg made the threat or promise ascribed to him or the
convenient admission that the changes had been prompted by union activities
rather than by need for tandem trucks, although that the changes were thus prompted
has been found.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company, set forth in section II, above, occurring in connec-
tion with the operations described in section 1, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
IV. THE REMEDY
Having found that the Company has engaged in and is engaging in certain unfair
labor practices affecting commerce, I shall recommend that it cease and desist there-
from and take certain affirmative action in order to effectuate the policies of the Act.
It has been found that the Company, by discharging Gields, Tiffany, Callahan,
and J. W. and Willis J. Blackburn, discriminated against them in respect to their
hire and tenure of employment in violation of Section 8(a)(3) of the Act. I shall
therefore recommend that the Company cease and desist therefrom and from infring-
ing in any other manner upon the rights guaranteed in Section 7 of the Act. I shall
further recommend that the Company offer to them immediate reinstatement to
their former or substantially equivalent positions without prejudice to their seniority
and other rights and privileges, and make them whole for any loss of pay sustained
by each of them by reason of the discrimination against them, with interest at 6 per-
cent, computation to be made in the customary manner .5 I shall further recommend
that the Board order the Company to preserve and make available to the Board,
upon request, payroll and other records to facilitate the checking of the amount of
backpay due.
If the status quo existing prior to such unlawful conduct is to be reestablished
and if such unfair labor practices are to be remedied fully, the Company must be
4Cf Harbison-Fischer Manufacturing Co., 131 NLRB 885, enfd 304 F 2d 738 (CA 5).
5 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827; Crossett Lumber Company, 8 NLRB 440; Republic Steel Corporation v.
N L R B , 311 U.S. 7; F. W. Woolworth Company, 90 NLRB 289, 291-294.
STORY OLDSMOBILE, INC. 1049
required to reestablish its operation as it existed prior to February 19, 1962, if
necessary discontinuing the use of trucks since put into use, dismissing employees
hired to replace the five employees herein, and terminating the services of independent
contractors, if any, used to perform the services performed by these five or any of
them. Nothing herein shall be construed, however, as enjoining or prohibiting
the Company, after reestablishment of its operation and reinstatement of the dis-
criminatees, from thereafter modifying or terminating its operation for any lawfully
motivated reason; and nothing herein shall be deemed to require the Company
to resume or reinstate its operation (beyond the extent necessary to accommodate
the reinstatement of the aforementioned employees who accept the Company's offer
of reinstatement.6
Upon the basis of the above findings of fact and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Ind., Local 247, is a labor organization within the meaning of Section
2(5) of the Act.
2. By discriminating in regard to the hire, tenure, and conditions of employment
of its employees, thereby discouraging membership in a labor organization, the Com-
pany has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
3. By such discrimination, the Company has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a)( 1 ) of the Act.
4. The aforesaid labor practices are unfair labor practices affecting commerce,
within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
e Kelly & Picerne, Inc., 137 NLRB 594.
Story Oldsmobile , Inc. and Robert E. Ball. Case No. 7-CA-379.
February 5,1963
DECISION AND ORDER
On November 9, 1962, Trial Examiner Arthur E. Reyman issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a brief in support of the exceptions.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to 'a three-member
panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner.
140 NLRB No. 95.