Lang Towing, Inc.

National Labor Relations Board - Board Decisions

Feb 5, 1973

201 N.L.R.B. 629 (N.L.R.B. 1973)

LANG TOWING, INC.
Lang Towing, Inc. and International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Help-
ers of America , Local No. 174 . Case 19-CA-5555
February 5, 1973
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND
KENNEDY
On July 26 , 1972, Administrative Law Judge i Leo
G. Lightner issued the attached Decision in this
proceeding . Thereafter , Respondent and the General
Counsel filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three -member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings , findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order , except as
modified herein.
We find no merit in Respondent 's exceptions to the
Administrative Law Judge 's finding that jurisdiction
should be asserted on the basis of Respondent's
income for services rendered pursuant to its contract
with the city of Seattle. We find an additional basis,
sufficient even if standing alone , for asserting
jurisdiction : income for services requested by auto-
mobile dealers , rental agencies , and an insurance
company all engaged in interstate commerce in
jurisdictionally sufficient amounts.
We agree with the findings , which are not excepted
to, that Respondent violated Section 8(a)(1), (3), and
(5) of the Act . But we do not adopt the finding that
Respondent 's defenses were frivolous , nor the recom-
mendation that Respondent be ordered to reimburse
the Board and the Charging Party for their expenses
in connection with this case . For support of his
recommendation , the Administrative Law Judge
cited Tiidee Products, Inc., 194 NLRB No. 198, and
Tiidee Products, Inc., 196 NLRB No. 27 . Both the
General Counsel and the Respondent except to this
finding and recommendation , and we find merit in
these exceptions.
In our view , Respondent 's contentions , both legal
and factual, were sufficiently arguable so as not to
warrant characterizing them as frivolous . Indeed, we
note that one unfair labor practice allegation
contested by Respondent was dismissed by the
Administrative Law Judge. Accordingly , we find that
Respondent's defenses are not so insubstantial as to
be considered patently frivolous . See United Steel-
workers of America, Local No. 937, A FL-CIO-CLC
629
(Magma Copper Company), 200 NLRB No. 8.
Therefore, we shall not adopt this provision of the
recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that Respondent,
Lang Towing, Inc., and Lang Towing No. 2, Inc.,
their officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Delete paragraph 2(d) and reletter the succeed-
ing paragraph 2(e) as 2(d).
2. Substitute the attached notice for that of the
Administrative Law Judge.
1 The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 In view of our conclusion on this issue , we find it unnecessary to and
do not pass on other contentions on this matter advanced by the General
Counsel
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, upon request, recognize and bargain
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, Local No. 174, as the exclusive repre-
sentative of all the employees in the bargaining
unit described below, with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment, and, if an understand-
ing is reached, upon request, embody such
understanding in a signed agreement. The bar-
gaining unit is:
All driver employees of Lang Towing, Inc.
and Lang Towing No. 2, Inc., employed at
Seattle, Washington, excluding all office
clerical employees, dispatchers, lot attendant
employees, mechanics, professional employ-
ees, guards, and supervisors as defined in the
Act.
WE WILL NOT unilaterally grant benefits to our
employees to induce them to refrain from
becoming or remaining members of, or to
withdraw their support or activities on behalf of,
the above-named Union, or unilaterally change
the wages, hours, or the terms and conditions of
employment of unit employees, without prior
consultation and bargaining with the above-
201 NLRB No. 92
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
named Union concerning the effects of such a
decision, or bargain individually with our employ-
ees; however, this shall not be construed as
requiring us to vary or abandon any economic
benefit or any term or condition of employment
which has heretofore been established.
WE WILL NOT discourage membership in
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
Local No. 174, or any other union, or discourage
the free exercise of rights guaranteed by Section 7
of the Act, by discriminating against any employ-
ee in regard to his hire or tenure of employment,
or any term or condition of employment, includ-
ing discharging employees for engaging in pro-
tected concerted activities, or suspending employ-
ees for engaging in union activities.
WE WILL NOT solicit employees to revoke union
authorization cards or threaten employees that we
will not recognize the Union in a manner violative
of the provisions of Section 8(a)(1) of the Act.
WE WILL NOT, in any other manner, interfere
with, restrain, or coerce our employees in the
exercise of the right to self-organization, to form
labor organizations, to join or assist the above-
named Union, or any other labor organization, to
bargain collectively through representatives of
their own choosing, or to engage in any other
concerted activity for the purpose of collective
bargaining or other mutual aid or protection, or
to refrain from any and all such activities, except
to the extent that such right may be affected by
an agreement requiring membership in a labor
organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as
modified by the Labor Management Reporting
and Disclosure Act of 1959.
WE WILL make whole Gerald F. Hokenson,
Paul J. Ferguson, and Rick Peery for any loss of
pay each has suffered by reason of our discrimi-
nation against each, with interest at the rate of 6
percent per annum.
All of our employees are free to become and
remain members of the above-named Union, or to
refrain from becoming or remaining members of said
Union.
LANG TOWING, INC. AND
LANG TOWING No. 2,
INC.
(Employer)
Dated By
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 10th Floor, Republic Building, 1511
Third Avenue, Seattle , Washington 98101, Tele-
phone 206-442-5692.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
LEO F . LIGHTNER , Trial Examiner : This proceeding was
heard before me in Seattle , Washington , on March 28, 29,
30, and 31 , 1972, on the complaint of General Counsel, as
amended , and the answer, as amended , of Lang Towing,
Inc., herein called the Respondent.' The complaint alleges
violations of Section 8(aX5), (3), and (1) and Section 2(6)
and (7) of the Labor Management Relations Act, 1947, as
amended (61 Stat . 136; 65 Stat . 601; 73 Stat . 519; 29 U.S.C.
Sec. 151 , el seq.), herein called the Act. The parties waived
closing argument , and briefs filed by the General Counsel
and Respondent have been carefully considered.
Upon the entire record,2 and from my observation of the
witnesses , I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges , the answer, as amended , admits,
and I find that Respondent is comprised of two Washing-
ton State corporations known as Lang Towing , Inc., and
Lang Towing No. 2, Inc. The entire stock of both
corporations is owned by Fred Powell , Jr., hereinafter
Powell , and the two corporations share common officers
and constitute a single -integrated business enterprise.
Respondent is engaged in the business of providing
automobile towing and storage services, in response to
police calls with respect to vehicles which have been in an
accident or are subject to impound under the laws of the
city of Seattle . Respondent provides the same service
directly to commercial enterprises and individual persons.
In the course and conduct of its business operations,
during the calendar year 1971, a representative period,
Respondents' volume of sales or services was in excess of
$240,000 ; its volume of sales or services for the same
period was in excess of $50,000 to firms and political
subdivisions located in the State of Washington, which
annually purchase in excess of $50,000 directly from
outside the State of Washington.
At the outset of the hearing , the following facts were
I A charge was filed on December 2 A complaint was issued on
February 14, 1972, and amended at the outset of the hearing herein All
dates herein are 1971, except as otherwise indicated
2 General Counsel has filed a motion to correct the transcript. No
(Representative) (Title) opposition thereto has been filed . The motion is granted.
LANG TOWING, INC. 631
stipulated. Respondents' total volume of sales for the
calendar year 1971 was $266,000. During the period
specified, services to All State Insurance Company resulted
in receipts, by Respondent, of the amount of $23,500. All
State Insurance Company is engaged in interstate com-
merce, within the meaning of Section 2(6) and (7) of the
Act, and annually receives from outside the State $500,000
in total sales . During the calendar year of 1971, Respon-
dent received $32,0003 for towing and storage services,
from various auto dealers, 15 of whom were identified .4
The identified dealers are engaged in interstate commerce
within the meaning of Section 2(6) and (7) of the Act.
In addition, during the period between August 1 and
December 31, 1971, Respondent received a total of
$57,928, for towing and storage services, from owners of
vehicles which were impounded, pursuant to direction
from the city police department, and towed by Respon-
dent, pursuant to the Impound Towing and Storage
Contract for zone 2 of the city of Seattle. The city of
Seattle annually purchases supplies and materials of a
value in excess of $500,000 from directly outside the State
of Washington.
Respondent, in its brief, urges that the contract between
Respondent and the city of Seattle is unlike the contract
between Carroll-Naslund and the city of Lewiston5
because the city is not purchasing towing services and does
not pay Respondent for the services it renders. The
evidence relative to the Seattle Impound Towing and
Storage Contract for zone 2 is next set forth.
Betty L. McFarlane is secretary for the board of public
works, and administrative officer of the department.
McFarlane credibly related that competitive bids, for the
contract, were opened in her office, on July 21, and the
contract for zone 2 was awarded to Respondent, as the low
bidder. The contract is between the board of public works
and Respondent, however, it was initially submitted to all
interested departments, including police department, fire
department, city council, and mayor. City engineers and
inspectors from the street use division, under her direction,
inspect storage lots to determine whether they are
adequately screened and surfaced, as required under
section 8 of the agreement. Respondent is required to pay
prevailing wage scales determined by the city, as prevailing
union wages and payrolls are filed and checked bi-monthly
to assure compliance. Compliance with Ordinance 98386,
providing equal employment opportunity, relative to hiring
members of minority groups, is a requisite, enforced by the
Human Rights department compliance officer, who reports
to the board of public works. The contract specifies the
3 Respondent does not dispute the accuracy of the total amount paid to
Respondent by the identified dealers
However , Respondent asserted that some of the revenue resulted from
towing, inferentially due to an automobile becoming inoperable , which were
covered by manufacturers' warranties, while some of the revenue resulted
from towing, and possibly some storage during nighttime hours, at the
behest of individual owners , not involving manufacturers ' warranties
Respondent contends the latter category constitutes a retail sale to the
vehicle owners
There is no evidence of what portion of the total of $32,000 represents
either category . It is reasonable to infer that separate records, reflecting
each category , were never maintained by the dealers who made the
payments
The 15 dealers are. Commercial Automotive Services, inc , d/b/a
Frank Hawkins Buick Company, Metro Volkswagen, Inc.; Westlake
price of each tow as $8, and storage at $3 per day. The
price is determined by competitive bidding.
McFarlane asserted that one purpose of the agreement is
to establish a reasonable rate for these services .6 The
contract provides , inter alia : section 15(a), vehicles will be
released to the registered owner after Respondent ascer-
tains the police department has not issued a hold order;
section 15(c), claimants will pay all authorized fees; and
section 25 , Respondent is required to post a performance
bond, in the amount of $1,000, with the city treasurer. The
purpose of this bond is to guarantee that any individual
whose car is damaged in towing will be reimbursed for the
cost of repairs , if it is determined that the damage was due
to Respondent's fault.
On July 21, McFarlane, by letter, advised Respondent it
had been awarded the city's Impound and Storage
Contract, for district (zone) 2, and advised of certain
specified essential fencing and painting. McFarlane identi-
fied a letter, dated August 3, from the supervisor of
insurance , advising Respondent of requirements for com-
pliance with the Workmen's Compensation Act, arising by
reason of the contract.
Sergeant David K. Dalrymple is administrative aide to
the chief of the Technical Services Bureau , Seattle Police
Department . His bureau encompasses records , communi-
cations , and laboratory , and he acts as liaison between his
bureau and other bureaus and departments.
Dalrymple credibly related that the communications
division dispatches requests for towing company services
by two dedicated telephone lines , one of which is an
intercom from the police communications center , and one
is on an electrowriter direct line telephone system between
the dispatch office and the auto records unit. Dalrymple
asserted that vehicles are impounded generally for parking
violations. Respondent is advised when and where to pick
up a car, improperly parked, by the radio dispatcher of the
police department. Dalrymple related the procedure when
an owner calls to locate his impounded automobile. The
owner is instructed to go to the police investigating unit to
obtain a release, which may not be granted if a car has
been in a collision and the driver left the scene of the
accident. In such event, a hold order is placed by the
police. After obtaining a release, from the investigating
unit , the owner obtains a release from the auto records
unit, which is delivered to the towing company, together
with proof of ownership. Absent evidence of ownership,
Respondent is not permitted to release a vehicle . Similarly,
Respondent is not permitted to release a vehicle on which
the police department has placed a hold order.
Chevrolet Company, Inc, S L . Savidge , Inc., Smith -Gandy Ford, Inc,
Central Pontiac, Inc.; Riach-Central Oldsmobile Company; Sparling
Cadillac Company; White Center Auto Sales, Inc., d/b/a Frank Kenny
Toyota; Phil Smart , Inc.; Rowland Motors, Inc ; Avis Rent A Car,
National Car Rental System , Inc., d/b/a Corbett's U-Drive , Inc., William
McKay Company, Bill Pierre Ford, incorporated.
s Carroll-Naslund Disposal, Inc., 152 NLRB 861.
6 While these facts do not appear in the record herein , Respondent in its
brief, asserts as background that the concept of having one towing concern
in a given geographical area arose in the early 1960's because of a
widespread complaint that police officers were accepting "kick-backs" from
towing companies , for referring impound tows to them Respondent
acknowledged that the contract is a method of regulating towing operations
for the protection of vehicle owners
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When a claim of damage, during towing, is made,
Dalrymple investigates in an effort to determine who was
at fault, and the essentials for adjustment.
General Counsel urges that the principal purpose of the
contract is to render an essential service to the city of
Seattle and that, absent that purpose and the resultant
agreement covering it, Respondent would not have
received the fees it thus obtained. I so find.
In the Appliance Supply case,7 the Board said:
. .. it has been the Board's established policy,
continued when the Board in October 1958 adopted its
new jurisdictional standards, to apply the concept that
it is the impact on commerce of the totality of an
employer's operations that should determine whether
or not the Board will assert jurisdiction. [Citation
omitted.] It is also the Board's established policy that in
cases where an employer, constituting as in this case a
single corporate entity, operates both a retail and a
nonretail enterprise, and the nonretail aspect of the
employer's operations is clearly not de minimis, the
Board will ordinarily apply nonretail standards in
determining whether to assert jurisdiction where
neither enterprise alone has sufficient commerce on
which to assert jurisdiction.
In Roland Electrical Company v. Walling, 326 U.S. 657,
674 675, the Supreme Court, in considering whether a firm
which serviced and sold electrical equipment to industrial
consumers was a "retail" or "service" establishment within
intendment of the Fair Labor Standards Act, examined
and set forth various criteria for distinguishing between
"wholesale" and "retail" operations. In doing so, the Court
noted that retail sales include sales to a purchaser who
desires "to satisfy his own personal wants or those of his
family or friends," while wholesale sales constitute "sales
of goods or merchandise 'to trading establishments of all
kinds, to institutions, industrial, commercial, and profes-
sional users, and sales to governmental bodies.' "8
In the Siemons Mailing case,9 the Board found an
employer was a nonretail enterprise and furnished services
valued in excess of $50,000 to firms whose operations
satisfy the Board's revised jurisdictional standards. The
Board held: "Whether such services are regarded as direct
outflow as the employer contends, or as indirect outflow, is
not here determinative. For the Board has concluded that
it will best effectuate the policies of the Act if jurisdiction is
asserted over all nonretail enterprises which have an
outflow or inflow across state lines of at least $50,000,
whether such outflow or inflow be regarded as direct or
indirect." Accordingly, as the Employer furnishes services
valued in excess of $50,000 annually to enterprises which
satisfy the Board's jurisdictional standards, the Board finds
it will effectuate the policies of the Act to assert
jurisdiction herein.
In the Carroll-Naslund case, supra,1° the Board, citing
Siemons, supra, noted:
We will also continue our past practice of treating sales
of goods or services to enterprises or organizations
which are themselves exempted from the Board's
jurisdiction as indirect outflow, where such enterprises'
or organizations ' operations are of the magnitude
necessary for assertion of jurisdiction over comparable
nonexempt organizations.
The Board held: "Although the city of Lewiston is exempt
from the Board's jurisdiction under Section 2(2) of the Act,
its operations are of a magnitude which would justify the
Board in asserting jurisdiction over it if it were nonexempt.
Accordingly, we shall treat the services rendered to it as
indirect outflow for jurisdictional purposes. The combined
value enterprises in that city is in excess of $50,000, which
meets the indirect outflow standard of Siemons Mailing.
We therefore find it will effectuate the purposes of the Act
to assert jurisdiction herein." ii
Accordingly, for the reasons set forth, I find that
Respondent is, and at all times material herein has been,
an employer within the meaning of Section 2(2) of the Act,
engaged in commerce and in activities affecting commerce
within the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the purposes of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local No. 174,
herein called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues raised by the complaint and answer,
and litigated at the hearing , are whether the Respondent:
(1) since on or about November 29 has refused, upon
request , to recognize and bargain with the Union, as the
exclusive collective -bargaining representative of its em-
ployees, in a unit appropriate for the purposes of
collective-bargaining and has thus engaged in conduct in
derogation of the provisions of Section 8(a)(5) and (1) of
the Act; or (2) since on or about December 1, by its
president, Powell , and its authorized agent and employee
F. Robertson Brown , caused a meeting of employees to be
held at which Respondent threatened to sell its business
unless employees agreed to (a) give up the Union, (b)
negotiate an agreement directly with Respondent, or (c)
stop their strike activities and return to work , or (i) by
concluding an agreement with its employees, signed by
President Powell , on December 2, or (ii ) by President
Powell, General Manager Darwin Thornton and Respon-
dent Agent F. Robertson Brown negotiating a second
agreement directly with the employees, signed by President
Powell on December 7, all of said actions being taken by
Respondent without notice to the Union , and has thus
engaged in conduct in derogation of the provisions of
Section 8(a)(5) and ( I) of the Act ; or (3) by the suspension
7 Appliance Supply Co, 127 NLRB 319, 320. 11 See also . Decker Disposal, inc, and Industrial Disposal, Inc, 171
8 See Bussey-Williams Tire Co, Inc, 122 NLRB 1146 NLRB 879, Bob 's Ambulance Service, 178 NLRB 1; Barry Industries,
9 Siemons Mailing Service, 122 NLRB 81 , 85. 86 Incorporated 181 NLRB 1003; Richmond of New Jersey, 168 NLRB 820,
10 Id at 863 Browne and Buford 145 NLRB 765.
LANG TOWING, INC. 633
of Gerald F. Hokenson, by General Manager Darwin
Thornton, on November 30, engaged in conduct which was
discriminatorily motivated, and thus violative of the
provisions of Section 8(a)(3) and (1) of the Act; or (4) by
the discharge of Paul J. Ferguson and Rick Peery, by
President Powell, on November 30, engaged in conduct
which was discriminatorily motivated, thus violative of the
provisions of Section 8(a)(3) and (1) of the Act; or (5)
engaged in conduct constituting interference, restraint, and
coercion, violative of the provisions of Section 8(a)(1) of
the Act, by (a) General Manager Darwin Thornton,
between December 1 and 10, soliciting employee resigna-
tions from the Union, or (b) by President Powell
threatening employees that Respondent would never
recognize any labor organization, on or about December 5,
or (c) by General Manager Darwin Thornton offering an
employee a raise if he would give up the strike and return
to work, on or about December 3. The complaint alleges
that Respondent has engaged in unfair labor practices of
such an extensive and pervasive character as to require the
issuance of a bargaining order even in the absence of an
8(a)(5) violation, commonly referred to as a Gissel remedy.
Respondent, by answer, denied the commission of any
unfair labor practices, and asserts that the suspension of
Hokenson was for cause and the discharge of Ferguson
and Peery was due to their having engaged in illegal
blocking of access to a storage lot of Respondent.
B. Supervisory Personnel
The complaint, as amended , alleges and the answer, as
amended, admits, and I find that Powell, president, and
Darwin Thornton, general manager, at all times material,
were supervisors within the meaning of Section 2(11) of the
Act.
The complaint alleges, and the answer denies, that F.
Robertson Brown acted as an agent of Respondent,
relative to certain events which occurred on and after
December 1. For reasons explicated infra, I find resolution
unnecessary.
C. Background
It is undisputed, as I have found, supra, that Lang
Towing, Inc., and Lang Towing No. 2, Inc., are operated,
by Powell as a single-integrated business enterprise. While
Powell related that he, at a prior unspecified time,12 had a
collective-bargaining agreement with an unidentified local
of the same Union, the specifics are obscure and
unimportant.
Respondent maintained storage lots, at all times material
herein, at 225 Summit East, where, inferentially, Powell
maintained an office, 701 Fairview Avenue North, herei-
nafter referred to as Fairview lot, 4311 Roosevelt Way
N.E., and 604 North 34th. Prior to February 22, 1972,
Respondent maintained its dispatch office at 2516 Fourth
Avenue, thereafter it was at the Fairview lot.
Pamella Emerick has been a dispatcher, for Respondent,
since September 1968. She described the duties of a
dispatcher as answering phones and dispatching tow
trucks . The tow trucks are dispatched by radio. It is
reasonable to infer that the drivers, of the tow trucks, are
instructed where to pick up a vehicle , and where to deliver
it, either to a storage lot or to a dealer . Emerick related that
a dispatcher is on duty at all times . She identified the other
dispatchers as James King, Ron Kloster, Tom Trammell,
and John Powell.
Respondent also employed an unspecified number of lot
attendants . Glenn Allen Holmes related his duties as lot
attendant were to obtain the license number identification
of a car when it was brought in and relay that information
to the office . When owners came to get their cars the lot
attendant was responsible for releasing them. It is
reasonable to infer, from the recitation of Holmes and
Peery, that lot attendants worked 8 -hour shifts, around the
clock.
It is undisputed that , on November 29, Respondent
employed 12 tow truck drivers, of whom 8 were employed
by Lang Towing, and 4 by Lang No. 2.13 Powell related
that, prior to August 1, when he undertook the city of
Seattle contract, Respondent employed a total of five
drivers in both companies.
Brown is the senior truckdriver , in terms of service,
having been employed for 7 years . In addition to his
driving duties, Brown is in charge of the sale of automo-
biles which are abandoned or not reclaimed . Cars more
than 10 years old are sold as junk , while other cars are sold
by auction. Brown related that he is responsible for this
function of Respondent. Brown is paid a salary of $50 a
week , in addition to his driver's pay, for these duties.
Brown also works a full 40-hour week as a truckdriver, and
these duties are additional. Brown related that Respondent
is required to notify the State within 5 days , when there is
an unclaimed vehicle, and it requires 21 days to comply
with the requisite procedures . Respondent is permitted to
deduct its accumulated charges , from the proceeds of such
a sale, and any amount in excess is divided evenly between
the county and the State. Brown related Respondent holds
auctions once or twice a month and sells from 15 to 30
automobiles each time . Brown did have a desk and
typewriter, in Powell 's office, which he used in connection
with his responsibility for disposing of abandoned automo-
biles.
Gerald F. Hokenson, alleged discriminatee herein,
credibly related that he was initially employed on August
1. In September, Hokenson discussed the desirability of
obtaining union representation with other drivers, includ-
ing McGowan , Wyllys, Ferguson , Price, and Mastin. These
discussions were at the Fairview lot and at other locations.
In mid-November, Hokenson contacted Leonard News-
ham, business representative of the Union, to ascertain the
essentials to accomplish union representation . Thereafter,
Newsham advised Hokenson of the desirability of schedul-
ing a meeting, at the union hall, and having as many
drivers as possible present . Hokenson requested the
telephone numbers of all the drivers from Thomas J.
Trammell , a dispatcher . When Trammell inquired as to the
12 Powell first asserted it was 8 years ago, then admitted it might have
been as recent as 1967, and covered a period of several years.
13 Identified as F. Robertson Brown, Paul J . Ferguson, Stephen R.
Gaddis, Gerald F. Hokenson, David J . Mastin, Walter H. McGowan,
Leonard B . Peace, David L. Price, Harold J . Swain , Jack L . Sexton, Francis
X. Webb, and Connor D. Wyllys.
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reason for the request, Hokenson advised that he was
talking to the men about joining a union. On Sunday,
November 28, at 10 a.m., at the union meeting, six drivers
signed union authorization cards.14 In addition, Hokenson
submitted a card on which he had, earlier the same
morning, obtained the signature of Ferguson. Ferguson
was unable to attend.15 The legend appearing on each card
is:
AUTHORIZATION CARD FOR UNION
to act as
BARGAINING AGENT WITH EMPLOYER
I, declare , that , through my own VOLUNTARY
ACT, CHOICE AND DESIRE, I hereby give exclusive
authorization to General Teamster Local 174, to
represent me in collective bargaining and to negotiate
terms and conditions of my employment and enter into
agreements to fix and secure the same . I understand, if
a majority of employees , in an appropriate bargaining
unit , sign these cards , an election may be rendered
unnecessary and these cards may serve as affirmative
Union votes in lieu thereof.
D. Refusal To Bargain
1. Appropriate unit and the Union' s majority
status
It is undisputed, as I have found, supra, that on
November 29, Respondent employed 12 tow truck
drivers and, on that Cate, the Union had seven valid
authorization cards.
The complaint alleges, the answer denies for want of
knowledge, and I find that, on November 29, a majority of
the employees of Respondent, in a unit appropriate for the
purposes of collective bargaining, within the meaning of
Section 9(b) of the Act, had selected the Union as their
representative for the purposes of collective bargaining,
with Respondent, and that at all times since that date, the
Union has been the representative of said employees for
the purposes of collective bargaining, with respect to rates
of pay, wages, hours of employment, and other terms and
conditions of employment, within the meaning of Section
9(a) of the Act. The unit is:
All driver employees of Respondent employed at
Seattle, Washington, excluding all office clerical em-
ployees, dispatchers, lot attendant employees, mechan-
ics, professional employees, guards, and supervisors as
defined in the Act.
14 Identified as Gaddis, Hokenson , Mastin, McGowan, Swain, and
Wyllys
is Subsequently, union authorization cards were signed by Price and
Sexton , on November 30, and by Peace on December 1
16 The letter includes "We stand ready, willing and able to authenticate
these claims if requester [ sic l to do so is made "
17 Emenck was unimpressive as a witness Emerick acknowledged that
the two union representatives appeared at the office on November 30 and
2. Union request for recognition and
bargaining-Respondent's failure and
refusals-strike
It is undisputed that, on November 29, about 8:15 a.m.,
Newsham and William H. Simmons , executive assistant to
George Cavano, secretary- treasurer, visited the premises of
Respondent , and presented a letter , addressed to Respon-
dent, dated the same date, signed by George Cavano, to
General Manager Thornton. The letter advises, inter alga,
that a majority of the tow truck drivers had designated the
Union as their collective-bargaining representative, pur-
suant to authorization cards, a copy of which was attached,
and requested recognition and bargaining.16 Thornton
acknowledged that he advised the union representatives
that they would have to set up a meeting date, and inquired
whom he should contact. Thereupon, Simmons handed
him a business card . Thornton acknowledged having
known Newsham for several years. The union representa-
tives cautioned Thornton that they did not want the
bargaining unit tampered with in the interim.
The same morning, Thornton delivered the union letter
to Powell.
About 7 a.m., on Tuesday, November 30, Hokenson was
suspended , by Thornton, explicated , infra, under Hoken-
son's suspension . Hokenson reported his suspension to
Simmons , shortly thereafter . Simmons, Newsham, and
Hokenson went to Respondent's Fourth Avenue dispatch
office and, after providing their identity, advised Dispatch-
er Emenck that they desired to talk to Powell, relative to
the Hokenson matter . Emenck advised that she was, at
that time, talking to Powell on the telephone . Emenck then
advised Powell that the two union representatives desired a
conference. Simmons credibly related that after Emenck
finished her conversation with Powell she advised the
union representatives that Powell would not see them.
Newsham and Hokenson corroborated Simmons.17
Powell acknowledged that he did nothing relative to
contacting the Union , relative to the request for recogni-
tion and bargaining. Powell asserted that he had intended
to ascertain whether the Union did in fact represent a
majority of the drivers "but I never got around to it that
day."
Shortly thereafter, the same morning , the Union estab-
lished a picket line. The record indicates that picketing
occurred at the Fourth Avenue lot and the Fairview lot
and continued, as to some employees, for approximately 6
days . Brown continued to work. It was asserted that Webb
was off sick. The other 10 drivers either picketed or
remained away from work, for varying periods of time.
3. Meeting of employees, December I-related
events-Respondent 's contracts with employees
Powell related that he showed the Union's letter,
asked for Powell She acknowledged advising that Powell was at that time
talking to her on the phone She acknowledged asking Powell if he was
available and being advised that he was not. She was then uncertain
whether she had or had not identified the union officials to Powell,
concluding with, "I must have asked who they were "
While Powell appeared as a witness no reference to this event appears in
his testimony
LANG TOWING, INC. 635
requesting recognition and bargaining, to Brown on the
afternoon of November 29.18
I have found, supra, that Brown was the only driver who
crossed the picket line and worked during the strike.
Brown asserted he was in Powell's office, at 225 Summit,
on the afternoon of Wednesday, December 1, when he
overheard Powell discuss having a meeting the following
morning , with unidentified individuals, for the purpose of
selling the Seattle Towing contract.19
Walter H. McGowan, a driver, credibly related that on
December 1 shortly before 5 p.m. Brown requested
McGowan to meet him, after Brown finished work, at 5
o'clock at the Plaid Piper Restaurant 20
When McGowan met Brown, Brown advised that Brown
had been working for Respondent a long time and hated to
see it go down the drain, that Powell was "hurting pretty
bad," that Powell had advised Brown that he would not
"go with the Union" and would probably sell the business
or dump it. McGowan asserted that he and Brown decided
if they could get the drivers to go back to work they would
have a half decent job. McGowan asserted the drivers
needed some type of security and that he and Brown had
tried to make up something that would give the drivers a
little security so they would come back to work.21
McGowan related that he and Brown drew up the outline
of subject matters to be agreed upon. Brown advised
McGowan that, if McGowan would return to work,
perhaps some of the others would also return. McGowan
related that Brown then called Powell and asked Powell if
he would like to come down and talk to McGowan.
McGowan asserted that Powell did come to the Plaid Piper
about 8 p.m.22
McGowan related that they advised Powell of "the
things we had drawn up" and advised they would like to
get it typed up and see if he would sign it , and probably
they could get the drivers to go back to work. According to
18 Powell provided the following explanation for showing the letter to
Brown , who was the senior driver, "He happened to be standing there while
I opened my briefcase."
Powell denied discussing the letter with Brown or requesting him to take
any action concerning it. While I do not find Powell a credible witness, I
draw no inference from this assertion.
19 Brown was evasive and incredible as to the specifics of this alleged
conversation . Brown "thought" Powell knew Brown was present in the
office . Brown was uncertain who else , if anyone, was in the office at that
time . Brown could not explain how or why he happened to be in the office,
at the time of this alleged conversation. Brown , having initially asserted that
Powell was talking on the telephone, later was uncertain if the conversation
he overheard was a telephone conversation , or was between Powell and
someone in the office . Brown was unable to recite what he overheard.
Brown described the size of the office as being approximately 12 feet square.
Brown also asserted he knew Respondent was having financial problems,
before the advent of the Union, because Thornton advised the drivers that
overtime would be cut off. Asked when this occurred, Brown responded, "It
had been going on for, I would guess , three weeks."
Powell was also evasive about this event . Initially, Powell asserted he had
an inquiry from an investment company about October I I relative to the
sale of his business . He acknowledged making a telephone call, relative to
this inquiry, but could not place the time of it. Questioned about the
testimony of Brown, which he had heard, Powell then asserted that Brown
might have overheard a telephone conversation of Powell, relative to the
sale of the business . Powell asserted he could not sell the Seattle Towing
contract.
20 McGowan related that he had voluntarily left Respondent's employ-
ment prior to his appearance at the hearing for personal reasons. McGowan
acknowledged being a personal friend of Powell . McGowan related that he
picketed for 4 hours on November 30 and did not picket thereafter.
McGowan, Powell responded that he did not have any
authority to make any agreement with them, that if the
employees wanted to make an agreement on their own "or
come back to work, or whatever, we could.,"
Asked if Powell indicated that he would sign such an
agreement , McGowan responded that Powell said it looked
okay to him, and Powell then left. Asked if Powell
discussed his appointment the following morning (purport-
edly to sell the business or the city contract), McGowan
responded that Brown talked to Powell about the appoint-
ment that he had at 8 o'clock the following morning, and
Powell asserted he was undecided on what to do.
McGowan asserted "I took it he meant get rid of the
business. I didn't know. I took it for granted that is what he
meant " Asked what gave him the impression that Powell
was to sell the business at 8 o 'clock the following morning,
McGowan responded that he had known Powell a long
time, that he knew he would not go union, and McGowan
thought Powell would do anything to keep the Union out.
Asked if Powell had so advised him, McGowan responded,
"Many times." McGowan then asserted that he and Powell
had talked 8 or 10 times about the Union and that Powell
is "dead against the Union." McGowan then related that
after discussing the proposed agreement, Brown asked
Powell if he still had a meeting at 8 o'clock in the morning,
and Powell responded in the affirmative. McGowan
related, Brown then asked if Powell had decided what he
was going to do, and Powell responded he would go either
one of two ways.23
Brown asserted that, when he asked Powell if he would
go along with a proposal, Powell first asserted, "I can't talk
to you guys about this ... " then Powell said, If you
want to do something like that, go ahead and I will look at
it." 24
Brown and Powell related that Brown took the proposal
According to McGowan, he was talking to Wyllys, while Mastin was
picketing, when Brown approached him relative to the December 1 meeting.
21 McGowan, erroneously as to time, asserted that he had decided that
the Union had advised that the Union was going to bargain for them, and
all he got out of it was 5 or 6 days off with8ut pay , that he had a wife and a
couple of kids to support, so he was going to go back to work and try to save
something of the whole mess.
22 There is a great discrepancy in the recitation of several witnesses as to
the time of events preceding a meeting of the employees , about 10 p.m.,
which I find it unnecessary to resolve.
Powell, whom I do not find to be credible, initially asserted that he
dropped into the Plaid Piper to have a drink, without knowing that Brown
and McGowan were there . Powell asserted this was between 5 and 6 p.m.
Shown his pretrial statement, Powell acknowledged that it contained a
statement that Brown called him and requested him to come to the Plaid
Piper. However, Powell insisted that he just happened to drop in.
Brown initially asserted that , after he and McGowan discussed the
possibilities of an agreement , "I believe we contacted Fred at that point."
Thereafter , Brown asserted that Powell came in to have a drink , without
explaining whether it was or was not pursuant to a call from him.
23 McGowan , having reviewed his pretrial affidavit , acknowledged that
it contained a statement that Powell advised McGowan and Brown that
Powell was ready to sell the business the following morning at 8 a.m.
McGowan initially attributed this language to Beck , General Counsel's
representative , who took the statement . Later, McGowan asserted his
statement was the truth.
24 The assertion of Powell that he advised Brown and McGowan, "No
way can I get involved with this thing ," is incredible in the light of following
events. On cross-examination, after reviewing his pretrial statement , Powell
acknowledged having advised Brown and McGowan that he would go along
with a proposal to offer the drivers some additional benefits if they would
(Continued)
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Powell's office on Summit, described as one city block
away from the Plaid Piper, about 6:30 p.m. 25 Brown
outlined the proposal as the return to work of all strikers,
with no one discharged, a medical program , and a paid
vacation. Brown initially asserted that Powell was noncom-
mittal , but said if they came up with something reasonable
he would agree to it. On cross-exarrunation , Brown related
that when he asked Powell if he and McGowan could come
up with an agreement with the drivers, as outlined, if
Powell would agree to it, Powell responded in the
affirmative.26
McGowan again met Brown , at the Plaid Piper,
inferentially about 8 p.m. Brown related that he advised
McGowan that Powell had said if they came up with a
reasonable agreement, Powell would sign it . McGowan, by
telephone, advised Respondent's dispatcher, King, to call
all of the drivers and advise them of a meeting at the Plaid
Piper, at 10 p.m.27
The meeting was attended by 8 to 10 drivers, McGowan
related that he advised the drivers that Powell was going to
sell the business, then Brown proposed an agreement,
advising that Powell would sign it.28
Price credibly related they were advised, by Brown, that
Brown and Powell had reached an agreement that
afternoon and Brown advised, if the drivers would not
agree to it, Powell would go out of business the next
morning.
Hokenson credibly related that McGowan advised the
drivers Powell would go out of business, because he would
not join the Union, and that Brown stated Powell had a
meeting the next morning to sell the city contract.
Mastin credibly related that Brown advised that Powell
would give up the city contract and go back to a three-
truck operation, Brown had seniority, but the rest of them
would be out of a job.
Connor Wyllys, a driver, credibly related that it was
Brown who advised the drivers that, if they did not go
along with the proposed agreement, the business would be
sold. Wyllys left the meeting, called Powell , and was
advised by Powell that Powell was going to sell the
business if the drivers refused to return to work. When
Wyllys inquired whether what Brown was offering was the
truth, Powell advised that it was. Wyllys returned to the
meeting and advised the drivers of his conversation with
Powell.29
Brown described the elements of the agreement as: the
establishment of a three-man board, whose unanimous
agreement was required for the discharge of a driver, with
with a proposal to offer the drivers some additional benefits if they would
return to work
25 Brown acknowledged Powell had advised him that Powell would he at
the Summit office during the earlier meeting.
Zs Initially, Powell asserted his response to Brown at the office was that
he did not know if he would he interested On cross-examination, he was
unable to remember his response
21 Brown erroneously asserted that McGowan notified the drivers While
Wyllys and Hokenson related they were advised by McGowan, Price,
Mastin, and Swain related they were advised by King
211 Ferguson , alleged discriminatee herein , attributed the report that
Powell might go out of business, if the employees did not agree, to Brown
29 Price credibly related that Wyllys advised that Powell had said he
would close the business the next morning , or sell it, if the drivers did not
agree
Hokenson and Mastin corroborated Wyllys as to Wyllys' report of his
all strikers, including those discharged during the strike,
being returned to work ; General Manager Thornton,
Brown , and a driver selected by the group were to comprise
the membership of the Board ; 30 a medical plan; and a
vacation plan.3i
Hokenson related that Brown canvassed each driver as
to whether they would go along with the agreement and
return to work . Hokenson asserted all of those present
agreed.
Brown asserted he then called Powell , at home, and
advised that the drivers had accepted the proposal , that he
and Wyllys would type up the agreement the following
morning ; and, if Powell would sign it, the drivers would
return to work . Brown also so advised Thornton.
Brown met Powell and Thornton the following morning
between 6 and 8 a .m. at Denny 's Restaurant, at Eighty-
Eighth and Aurora . Brown went over the items he had
presented to the drivers . Brown related Powell instructed
him to have it typed, and that Powell would sign it.
Thornton, corroborating Brown , related that Powell
advised Brown, "If that is what they want I'll sign It"32
It is undisputed that an agreement was prepared by
Brown with help from Wyllys at the Fourth Avenue office.
Thornton took it to Powell , who signed it, on December 2.
It was then posted at the Fourth Avenue office . Thornton
supplied a copy to Wyllys.
The agreement provides : ( 1) Reinstatement of all drivers,
to position and seniority as of November 29; (2) health
program; (3) a three-man review board , requiring unanimi-
ty for dismissals, and review of any damage assessed
against drivers ; (4) holiday pay; and (5) retirement fund.
Hokenson took a copy of the agreement to Simmons,
union representative , who advised that Respondent did not
have the right to bargain with the employees without
participation of the Union . Simmons corroborated Hoken-
son.
Hokenson returned the agreement to Wyllys and advised
him that the drivers were still on strike . When Brown
inquired as to the reason, Hokenson advised him the
agreement had not been witnessed or notarized , and the
Union "did not authorize [the agreement]." It is undisput-
ed that some drivers continued to picket , and others
remained on strike.
Brown corroborated Hokenson , relative to the alleged
defects in the agreement , relating he advised Hokenson, on
Friday, December 3, that they should see if Powell would
agree to modification , including a provision for vacations,
which had not been included. Brown related that Powell
conversation with Powell Mastro asserted that Wyllys advised that Powell
was agreeable to the proposed agreement of Brown
Powell admitted Wyllys called him and inquired if Powell would go along
with "some plans they had been working on " Powell asserted he had not
seen the plans and did not know what they were . Powell was evasive as to
whether he changed his previous plans, for the following morning , in order
to meet with Brown Powell denied advising Wyllys of anything relating to
the sale of the business On this conflict , I credit Wyllys.
30 It is undisputed that, at the meeting , the drivers selected Wyllys as the
third board member
31 A vacation plan does not appear in the agreement Other subjects are
covered
32 Powell, at variance , asserted , "I did not tell him that I 'd sign it but I
think he took it for granted that I would after I sign and agreed to go ahead
and do it [incoherent ]"
LANG TOWING, INC.
agreed to turn the matter over to his attorney, to have it
properly prepared.
It is undisputed that a new agreement was then prepared
by Munro, Respondent's attorney, signed by Powell, on
December 7, and posted the same day at the Fourth
Avenue office.33 The strike terminated on the same day.
E. Interference, Restraint, and Coercion
1. Solicitation of union resignations
It is alleged that from December 1 to 10, Thornton
solicited various employees to resign from the Union. The
evidence relative to these allegations is next set forth.
Stephen R. Gaddis was initially employed by Respon-
dent in June 1970. I have found, supra, that Gaddis signed
a union authorization card, at the meeting of November
28. Gaddis engaged in picketing, at the Fairview lot, on
Tuesday, November 30, and on one other unspecified day
thereafter. Gaddis credibly related a telephone conversa-
tion he had with Thornton, on Thursday, December 2.
Thornton inquired if Gaddis wanted to return to work, and
Gaddis replied that he did. Thornton advised he could
come back to work, but Thornton did not know how much
longer he could hold the job, because they needed drivers.
Gaddis responded that he could not come back because he
was on strike. Thornton then advised Gaddis that Gaddis
could waive the Union's jurisdiction over him, "if I signed
this card that the Union couldn't pursue against me for
being a strikebreaker." Gaddis asserted that Thornton
explained that once Gaddis signed the card the Union
would not have jurisdiction over him, he would no longer
be with the Union. Thornton then advised Gaddis that he
would give Gaddis Munro's phone number, so he could
discuss the legal technicalities with Munro, Respondent's
attorney.34
David G. Mastin was initially employed by Respondent
on August 1. I have found, supra, that he executed a union
authorization card on November 28. Mastin credibly
related that he commenced picketing on Tuesday, Novem-
ber 30, and also picketed on Wednesday and Thursday,
and again on Saturday and Sunday. Mastin credibly
related that, while he was picketing at the Fourth Avenue
lot, on November 30, Thornton asked him why he was
picketing, advising Mastin that he really didn't have
enough money to stay out on strike and could not afford it.
Mastin responded that he had enough money "for awhile,"
that things would not be exactly right financially, but that
he could stay out. When Thornton advised Mastin that
33 This agreement , with some modifications in language and with the
addition of a provision relative to vacations , covers the subject matter set
forth, supra.
34 Thornton acknowledged calling Gaddis, inferentially on December 2,
to ascertain if he intended to return to work . Thornton acknowledged that
Gaddis advised that he could not as he had authorized the Union to bargain
for him. Thornton related that Gaddis then asserted he did not wish to hurt
Powell and would come back to work if he could . Thornton inquired what
he had done relative to that , and Gaddis advised that he had talked to an
attorney who advised that the bargaining card was legal. Thornton then
inquired if Gaddis desired to talk to Respondent 's attorney and provided his
name and telephone number. Thornton acknowledged advising Gaddis,
"Well, if you sign one contract, your attorney can get you out of it by
signing another contract-you can have a contract withdrawn if you want
to. This is your choice, Stephen, you can do it, and you can come back to
637
Mastin really did not want the Union, Mastin responded
that he had been in another union previously, and liked
what the union did for him. Inferentially, on Wednesday or
Thursday, December 2 or 3, Thornton called Mastin to
inquire if he was coming back to work. Thornton
mentioned the agreement which Powell had signed. Mastin
responded that he did not know about going back to work
because of the Union, that he had signed up, and that the
Union was supposed to have his bargaining rights.
Thornton advised that the Union would not have any say
so in the matter if Mastin signed the card disaffirming his
rights with the Union. Thornton advised Mastin that he
could talk to Munro, Respondent's attorney, about a card
stating that he gave up all his rights through the Union,
"and that there was nothing the Union could do about it
after that."35
Harold J. Swain was initially employed by Respondent
on October 22. I have found, supra, that Swain signed a
union authorization card on November 28. Swain credibly
related that, on Thursday or Friday, December 2 or 3,
Thornton inquired if he was going to return to work. Swain
explained that he had been advised by Hokenson that the
strike was still on, and therefore he advised Thornton that
he did not know what was right and what was wrong.
Swain asserted he advised Thornton that he had not been
able to obtain legal help and did not wish to hurt Powell or
to go against the Union, but wanted to do what was right
and was thoroughly confused. Swain advised Thornton he
would not be returning until he got it straight. Thereupon,
Thornton advised that Swain had nothing to worry about,
as Lang was required to have "a certain number of
minorities working" in order to keep the city contract.
Thornton then inquired if Swain had signed a union
authorization card. Swain responded in the affirmative.
Thornton then advised that he could rescind the union
authorization card if he wished to return to work. After
Swain returned to work, Thornton inquired if he had taken
care of rescinding the union authorization card. Swain
related that he lied and said he had taken care of it.36
2. Powell threat
It is alleged that, on or about December 5 , Powell
threatened Respondent 's employees that Respondent
would never recognize any labor organization. The
evidence relative to this allegation is next set forth.
Mastin credibly related that on Saturday or Sunday,
December 4 or 5, at the Fourth Avenue lot, he inquired of
Powell as to what was going on . Powell responded that he
work."
35 Thornton asserted he called Mastin on Saturday to inquire if he was
coming back to work , that Mastin responded he had just returned to town
and would talk to Gaddis to find out what the others were doing. Thornton
did not deny the balance of Mastin 's recitation . I credit Mastin.
38 Thornton acknowledged calling Swain , explaining that Respondent
was in need of manpower and Thornton desired to know if Swain was
returning to work . Thornton corroborated Swain's response that Swain
desired to obtain legal counsel . Thornton asserted that Swain inquired as to
how he could "get out of it," as he had signed a union card. Thornton
asserted that he responded , "If it's your choice to get out of it, you can sign
another card in order to rescind this bargaining agent with the Union." To
the extent Thornton's testimony is at variance with that of Swain , I credit
Swain.
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been fighting the union for 15 years, and was not
"going Union," that if the employees wanted to come back
to work they could, but they didn't have to. Mastin
explained that he was still picketing at this time, as he had
been advised by Hokenson that the purported contract was
not binding in any way, and Mastin sought to ascertain the
precise situation.37
3. Thornton offer of a raise
It is alleged that, on or about December 3, Thornton
offered an employee a raise if he would give up the strike
and return to work. The evidence relative to this allegation
is next set forth.
Swain related that while he was on strike, inferentially,
during his conversation with Thornton set forth, supra,
Thornton advised that if he would return to work, "I would
be getting a raise , and it would probably be the same story
that everybody else was getting." Swain then asserted that
Thornton had stated he would probably be getting a raise
when he came back to work. Swain asserted that when he
was employed he was advised that he would receive $3 an
hour and would receive a raise in the future. Swain did
receive a raise to $4.42 an hour, 4 or 5 weeks prior to his
testimony, on March 30. Swain acknowledged that his
pretrial statement indicated that he had been advised by
Thornton, when he was hired, that he would be raised to
$4.42 an hour after 90 days.
Thornton denied advising Swain he would receive an
increase if he returned to work. Thornton related that he
inquired if Swain knew when he would receive a raise,
explaining, to Swain, that it was company policy that a
trainee driver received $3 an hour for 90 days, and then
was raised to $4.42 an hour. On this conflict I credit
Thornton. Accordingly, I will recommend the dismissal of
the allegations of paragraph 15 of the complaint.
4. Discharge of Ferguson and Peery on
November 30
It is alleged that the discharge of Ferguson and Peery by
Powell on November 30 was discriminatorily motivated,
because they were engaged in protected concerted activity.
Rick Peery was initially employed by Respondent, in
September. as a lot attendant at the Fairview lot. On the
evening of November 30, having worked an 8-hour shift,
Peery advised Thornton, by telephone, that he was not
going to work overtime, that a 16-hour shift was too much
for him to handle. At that time, Paul Ferguson was
picketing in front of the Fairview lot. When Thornton
arrived, shortly thereafter, Peery advised Thornton that
Peery wanted to join the Union. Thornton responded that
S7 Powell acknowledged having a conversation with Mastro, about
December 5, and acknowledged having heard Mastin 's testimony Powell
denied having advised Mastin that Powell had been fighting the union for
15 years and that Respondent was not going to recognize the Union On this
conflict. I credit Mastro
es Thornton acknowledged advising Peery that lot attendants and
dispatchers were not drivers and, thus, not under the "purview" of the
Union, and it would do him no good to join as he would not receive the
same benefits
39 Powell related that he saw Peery and Ferguson standing on the
the benefits were no good and that it would break a small
business (to have a union ).38 Later, Peery advised King,
dispatcher , that Peery was going down to join the Union,
and that they should get someone else to replace him.
Peery went to the union hall, found it closed , returned to
the Fairview lot, and stood near Ferguson . Powell arrived
about a half hour later . Powell advised Ferguson and Peery
that they were fired and would never work for Lang again.
Peery credibly related that he and Ferguson were standing
to the right of the entrance gate , as you look out from the
lot. Powell did not give any reason for the discharges and
did not indicate that they had been blocking the driveway.
Peery was reemployed , after the December 2 agreement,
inferentially, on December 3.
Ferguson credibly related that he picketed at the
Fairview lot from 6 p .m. until midnight on November 30.
About 10 p.m., Brown drove into the lot and was followed
by Powell, who was in a separate truck . Powell stopped his
truck in the driveway, got out, and advised Peery that
Peery was fired and would not work there . Ferguson then
related that Powell advised him, "I could be fired, and
wouldn't work there any more either ." Ferguson was
carrying a picket sign at the time . Ferguson identified a
pretrial statement in which he had stated that Powell had
advised both Peery and Ferguson that they were fired. On
cross-examination , Ferguson asserted that , while Powell
was talking to them , Brown shouted something to Powell
and Ferguson was uncertain as to precisely what Powell
had said to him. Ferguson acknowledged advising the
Union, the following day, that he had been fired the
previous night . It is undisputed that Ferguson is presently
employed by Respondent , having returned on an unspeci-
fied date, inferentially, approximately December 7 .39
5. Suspension of Hokenson on November 30
It is alleged that, on November 30, Thornton suspended
Hokenson because of his activities on behalf of the Union.
It is undisputed that Hokenson had an accident on
November 28 about 7 a.m., and Respondent asserts that
this accident was the cause of the suspension . General
Counsel produced evidence of other drivers having
accidents, none of which resulted in a suspension.
Respondent asserts it has discharged drivers by reason of
multiple accidents, one recently, and others 4 or 5 years
previously. The evidence relative to these matters is next
set forth.
Powell related that he caused two posts to be imbedded
in the Fairview lot about November 1. It was Respondent's
intention to place a chain across the two posts, which were
encased in concrete and protruded upward, approximately
4 feet, to prevent owners from removing their cars from the
lot without proper clearance from the lot attendants. The
sidewalk He stopped his truck , got out, and advised Peery and Ferguson,
"Get out of the driveway or you can be fired " Powell asserted he thought
they were far enough into the driveway that he had to stop his truck and tell
them to get out . Powell acknowledged having been advised by Thornton, by
radio, that Peery did not want to work any longer, but denied that this was
the reason he went to the Fairview lot at that time. I do not credit Powell's
assertion that Ferguson and Peery were blocking the gateway Powell
acknowledged having stated , in his pretrial statement, that he advised Peery
and Ferguson that they could not work for him any more.
LANG TOWING, INC. 639
chain was never inserted. Glenn Allen Holmes, lot
attendant at the Fairview lot, related that he had measured
the distance from the entrance to the lot to a post next to
the shack as approximating 35 feet, while the other post
was inserted approximately 31 feet from the entrance. The
distance between the posts approximated 16 feet.
Hokenson credibly related he had entered the Fairview
lot, at a speed of approximately 5 miles per hour, when an
unidentified individual walked out of the shack and walked
directly toward the front of the tow truck (apparently
preoccupied and oblivious of the truck). Hokenson, who
was towing a vehicle at the time, swerved to miss the
individual and caused the left front bumper to come in
contact with the post on the left side as one enters the lot.
As a result, the left front bumper was pressed back
sufficiently to dent the chrome around the headlight and
the left fender was dented. The impact caused the post to
become loosened. Holmes was the only one present at the
time.
Holmes related that an unknown individual had walked
into the shack to use a telephone. Holmes explained that
there was a sign on the outside of the fence indicating the
availability of a public telephone in the shack. The
individual was not a customer. Holmes described the
individual as walking out of the shack, apparently not
looking where he was going, as a result of which Hokenson
swerved his truck and the impact resulted 40
It is undisputed that Holmes promptly reported the
accident to Trammell, the dispatcher, at the Fourth
Avenue office. Holmes advised that Hokenson had hit the
post, and that the individual had not been hurt. Holmes
related that Trammell did not inquire as to the speed at
which Hokenson had been driving. Holmes asserted the
individual had gone only a few feet from the shack when
Hokenson swerved his truck.
Hokenson went to the Fourth Avenue garage, reported
the accident to Trammell personally, explaining what
occurred. Hokenson then partially straightened out the
bumper with the use of another tow truck. Hokenson
denied that the actuator valve, apparently attached to the
left front of the truck, used to jack up the front end of the
vehicle being towed, was damaged. It appears undisputed
that Wyllys drove truck No. 99 on the day shift, and this
was the same truck that Hokenson drove on the graveyard
shift. Wyllys related that he did not have any mechanical
problem with the truck after Hokenson's accident. Wyllys
did take the truck to the company mechanic to make
certain that it was safe to drive. Wyllys related that the
mechanic did not make any repairs on it. Wyllys asserted
the actuator valve was working properly.41
Thornton related that Hokenson's accident was reported
to Thornton, on Monday morning, by dispatcher King.42
Thornton ascertained that Powell, who was working on
Sunday, had been advised of the accident. Thornton
asserted that Powell advised him, if Thornton deemed it
advisable, to suspend Hokenson for a couple of weeks.
Thornton asserted the Respondent's policy was predicated
on whether the accident was a driver error, equipment
failure, or due to inadequate instruction by management to
a driver.
Thornton asserted he discussed the accident with
Holmes on Monday afternoon. Thornton was then
uncertain whether Holmes was or was not working on
Monday afternoon, but was certain he did not call him on
the telephone. Holmes denied discussing the accident with
either Thornton or Powell, at any time. On this conflict, I
credit Holmes.
Hokenson first learned of his pending suspension,
indirectly, when he reported for work on Monday night.
Hokenson related that Holmes advised that Holmes had
been talking to McGowan, and that McGowan asserted he
was going to start working 7 days a week, that Wyllys was
going on the night shift, and that Hokenson was being
suspended.43
Hokenson asserted that, on Tuesday, about 7 a.m.,
Thornton asked him to describe what happened, which he
did. Thornton inquired how fast Hokenson was traveling,
and Hokenson responded, "Approximately 5 miles an
hour." Thornton advised that he would have to suspend
Hokenson for 5 days. Hokenson suggested that Holmes
was present, at the time of the accident, and Thornton
responded that he "would" talk to Holmes.
Hokenson acknowledged that Thornton mentioned that
Hokenson had had a previous accident in September.
Hokenson acknowledged that he was backing a Volkswag-
en into a parking spot, and that his truck jackknifed and
dented the left front fender, causing damage of approxi-
mately $40 or $50. Hokenson asserted that while he was
told he would have to pay the damage, no one ever asked
for it, he was not disciplined or given any warning.44
40 The effort of several of Respondent's witnesses to establish, by
theorizing , that Holmes could not have observed the accident , if, in fact, he
was seated inside the shack, as Holmes related , is not credited.
41 Thornton asserted that he talked to Wyllys, on Monday, and that
Wyllys advised that the actuator valve was not functioning properly.
Thornton asserted that he drove the truck on Tuesday afternoon , and the
actuator valve was inoperable at that time . This was after the suspension of
Hokenson. There is no evidence of any repair to the actuator valve. On this
conflict I credit Wyllys.
Thornton asserted that the cost of a new bumper and installation would
be $65. Thornton acknowledged no repair had been made to the bumper
prior to the time of his testimony herein.
42 Thornton acknowledged that, in a pretrial statement, he had
erroneously identified the dispatcher on duty, at the time of the report, as
Trammell. Thornton explained that Trammell did not work on Sunday
night, on the graveyard shift, and that King was on duty.
43 McGowan 's assertion that he learned of Hokenson 's suspension, after
the fact, is not credited.
44 Thornton acknowledged talking to Hokenson , at the end of Hoken-
son's shift , on Tuesday morning. Thornton acknowledged Hokenson's
advice relative to the facts concerning the accident , in particular, that
Hokenson had swerved to avoid hitting a pedestrian . Thornton asserted that
it was his judgment that Hokenson must have been driving too fast.
Thornton related that Hokenson had been in an earlier accident, resulting
in a cost of $57. Thornton then asserted that it had been reported to him by
a friend of Powell that Hokenson had been seen with a car in tow, 2 or 3
weeks after the first accident , traveling at a high rate of speed ; as a result of
which he advised Hokenson to "slow it down a little bit ." Thornton
acknowledged he did not write up a warning slip relative to Hokenson's
speeding or the speeding of any other drivers, which he acknowledged had
been reported.
Thornton acknowledged that the two accidents of Hokenson resulted in
minor damage. Thornton then asserted it was the nature of the accident,
hitting a solid object , which caused him to conclude that the accident could
have been avoided. Thornton then asserted , "We wanted to impress upon
him and the other employees at this time that this kind of thing could be
(Continued)
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I turn next to the evidence of other accidents, which did
not result in suspensions.
McGowan related that in 1967 he was driving a tow
truck home at 3 a.m . when a car cut in front of him, and to
avoid hitting the car he rolled off the ramp, resulting in
substantial damage to the truck. He was not required to
pay for the damage and was not disciplined.
Powell acknowledged the cost of repair to the truck,
damaged in the accident of McGowan, approximated
$1,200. Powell asserted that he saw the skid marks, where
McGowan had applied his brakes, gone into a ditch, and
rolled the truck over. Powell determined the accident was
not McGowan 's fault.
Gaddis related that he was responding to an accident
call, and was moving from the left side of the road to the
right, when he was hit in the rear end by another vehicle.
He was uncertain of the amount of damage to the truck.
He was not asked to pay for the damages and was not
disciplined. Gaddis also had an accident in January when
he slid, on an icy pavement, into a window across the street
from the Fourth Avenue lot and put a dent in the tow
truck. The damage to the truck and window was approxi-
mately $130. He was not asked to pay the damages and
was not disciplined.
Pnce related that, approximately I month before the
strike , he was making a wide turn and ran into a Mercedes
sports car, damaging the left front fender and bumper. He
did not know the amount of damage to the other car, but
asserted it was substantial . Price had another accident,
about 6 weeks prior to the second accident. He was towing
an American Motors car, and damaged it in hoisting it for
towing, with insubstantial damage. He was not disciplined
relative to either accident.
Mastin related that, while he was in his training period,
in July 1971, he and Ferguson hooked on a trash trailer. As
they were proceeding down Eastlake Avenue, the trailer
came loose, went across the sidewalk, and hit a parked car.
The tongue of the trailer put a hole in the front door of the
automobile. He was never told the amount of damage,
never requested to pay for it, and was not disciplined.
Ferguson related that he had an accident on January 1
and another on March 11. He was driving southbound on
him and the other employees at this time that this kind of thing could be
avoided "
15 Thornton asserted the difference between Hokenson 's accidents, and
the accidents of the other drivers , was that Hokenson 's accidents were
avoidable Thornton acknowledged Respondent had no written policy
regarding accidents, but asserted the drivers are cautioned that if it was
shown they were negligent , "then they are again cautioned with due respect
that they will have some sort of a suspension " Thornton asserted this was
the third time Hokenson had been cautioned , and it was therefore deemed
advisable to suspend him. It is patent that one of the three alleged cautions
to Hokenson involved speeding and not an accident.
Thornton asserted that he had discharged Peace because he had been in
four accidents , chargeable to him , the most recent one being damage to an
overhead garage door , involving a cost to Respondent of $400 . No cost to
Respondent resulted from Hokenson 's November 28 accident . No other
drivers were suspended during the tenure of Thornton , who had been
employed by Respondent for 6 years, and had been manager since January
1971
Thornton explained Swain 's accidents as resulting in minimal damage
and asserted that Swain had not been adequately instructed , relative to
towing a Mercedes . This explanation begs the question of driver negligence
Thornton asserted that Ferguson was cautioned after his first accident,
and his second accident which occurred on March I I when Ferguson rear-
Eastlake , approaching an intersection , when the light
turned yellow. The road was wet, his brakes locked, and he
skidded . He did not know the amount of damage , was not
requested to pay for it, and was not disciplined. He
acknowledged that Powell advised that he could be
suspended . Ferguson described the damage to the tow
truck as the front bumper , the left front fender , and the
parking light . The damage to the other car was the rear
bumper, the left quarter panel , and the deck lid. He was
given a police citation for failure to stop for a light. In the
other accident, the other car started through a yellow light
and stopped suddenly in front of him. He asserted that his
brake system locked and he ran into her. There was no
damage to the truck . Ferguson was not advised of the
amount of damage to the other car. He was not asked to
pay for any damage and was not disciplined.
Swain related that he had had an accident , approximate-
ly 6 weeks prior to his testimony, which was on March 30.
He was passing a city transit bus, when the mirror on his
truck brushed the mirror on the bus , resulting in damage
amounting to $22 . He was not requested to pay for the
damage and was not disciplined . He had a previous
accident, approximately 3 weeks after he started to work,
in November . He had picked up a Mercedes and placed
wood under it to lift it for towing . One of the pieces of
wood knocked off the petcock from the radiator, causing
the antifreeze to run out . He was not aware of the accident
and did not report it . When the owner claimed the car and
discovered the damage , Thornton advised Swain not to do
it again . Swain was not asked to pay for the damage, which
was under $25, and was not disciplined.
It is undisputed that all of these accidents were reported
to Respondent 's officials and were investigated by them 45
Concluding Findings
a. Failure and refusal to recognize and bargain
I have found , supra, from undisputed evidence that on
November 29 Respondent employed 12 tow truck drivers;
the Union had obtained valid authorization cards from 7
of these drivers on that date; 46 the Union obtained 2
additional cards on November 30 and 1 additional card on
ended another car, was still under "advisement " with the insurance
company, and they had not yet made a determination, inferentially , relative
to discipline , when Thornton testified on March 31
Asked if it was company policy to require drivers to pay damage for
accidents , Thornton responded that it depends on the seventy and nature of
the accident . Thornton then could not recall the last time he asked any
driver to pay damage for an accident
Thornton asserted that at the time of the suspension of Hokenson,
Thornton was not aware of Hokenson 's union activities . I do not credit this
assertion , for reasons explicated, infra
46 Respondent, in its brief, distorts the testimony of Ferguson , in urging
that Ferguson 's signature was obtained by Hokenson on a representation
that it would be used on condition that everyone else Joined
Ferguson did relate that , around November I. he advised Hokenson he
would be interested in joining the Union "if everyone else did." However,
he did not sign the authorization card until November 28 He related that
Hokenson advised him , at that time , they had to have the card before the
meeting, which Ferguson could not attend On cross-examination, Respon-
dent asked Ferguson if he knew whether any other drivers were in the
Union, when he signed the card . Ferguson responded, "At that time nobody
had gotten into it They were just going to a meeting."
Respondent's premise that Ferguson 's card should not be counted is
without substance or merit
LANG TOWING, INC.
December 1; the drivers were in a unit appropriate for the
purpose of collective bargaining, within the meaning of
Section 9(b) of the Act, and had selected the Union as their
representative for the purposes of collective bargaining
with Respondent, within the meaning of Section 9(a) of the
Act; and the Union has been the representative of said
employees at all times since that date.
It is also undisputed that the Union by letter, dated
November 29, to Respondent requested recognition and
bargaining, and that said letter was hand-delivered by
Newsham and Simmons to Thornton, Respondent's
manager, about 8:15 a.m. on November 29. On November
30, inferentially about 8 a.m., Newsham and Simmons
sought, unsuccessfully, to meet with Powell, who refused to
see them. Powell acknowledged that he did nothing relative
to contacting the Union thereafter.
Respondent, in its brief, asserts that Thornton, upon
receipt of the letter, advised the union representatives that
he was not authorized to handle such matters. I have
found, from the recitation of Thornton, that his response
was, "Who shall we contact to set up a meeting date?" In
any event, it is undisputed that Thornton promptly
delivered the letter to Powell, who, the same morning,
showed it to Brown.
Respondent's assertion, in its brief, that it was not
afforded a minimal time, prior to the strike, on November
30, to ascertain the accuracy of the statements made in the
letter requesting recognition is without substance and
without merit. It is undisputed and I have found that 10 of
Respondent's 12 drivers abstained from work on Novem-
ber 30, and at least 8 engaged in picketing.
If an employer fails to respond to a union's request for
recognition, within a reasonable time, such failure can be
characterized as a refusal.47
An employer can, in normal circumstances, reject a
demand for recognition and insist on a Board election to
resolve the issue of majority status. This right is forfeited,
however, if the employer interferes with the election
process by committing unfair labor practices serious
enough to create a situation in which it is doubtful that a
fair election can be held. N.L.R.B. v. Gissel Packing Co.,
Inc., 395 U.S. 575.
In the light of the Supreme Court's decision in Gissel, it is
now established that an employer's good- or bad-faith
doubt that a union represents a majority of the employees
at the time of its request for recognition is largely
irrelevant, the criterion instead being whether or not the
union, in fact, represented a majority of the employees and
the employer engaged in substantial unfair labor practices,
making a holding of a fair election impossible or unlikely.
Here, the record establishes beyond doubt that the
Union, at all times, at and after its request, in fact
represented a majority of the employees in the appropriate
unit. As a result of the Supreme Court's decision in Gissel,
it must now be considered settled law that the majority
status of a union may be established by methods other
than certification by the Board after an election, including
41 Retail Clerks ' Union Local No. 1179, Retail Clerks International
Association, AFL-CIO v. N.L.R.B., 376 F.2d 186 (C.A. 9); Noll Motors, Inc.,
168 NLRB 1029, 180 NLRB 428 , enfd . 433 F.2d 853 (C.A. 8).
48 E.g., Great Plains Steel Corp., 183 NLRB No . 96, Martin Electronics,
641
the securing of a majority of unambiguous authorization
cards. Under the Board's subsequent explications of
Gissel, 48 it is well established that where an employer
rejects a bargaining demand based upon unambiguous
authorization cards, and then engages in substantial unfair
labor practices, the Board is authorized to issue a
bargaining order, both when the employer has engaged in
unfair labor practices "so coercive that, even in the absence
of a Section 8(a)(5) violation, a bargaining order would be
necessary to repair the unlawful effect of those [unfair
labor practices]," and, as the Court further stated: ". . . in
less extraordinary cases marked by less pervasive practices
which nonetheless still have a tendency to undermine
majority strength and impede the election process." In the
latter situation, in the words of the Court:
If the Board finds that the possibility of erasing the
effects of past practices and of insuring a fair election
(or a fair re-run) by the use of traditional remedies,
though present, is slight, and that the employee
sentiment once expressed through cards would, on
balance, be better protected by a bargaining order, then
such an order should issue.
Here, the Respondent was unwilling to suggest that the
Union resort to the Board's election process and await the
outcome of the election, instead, Respondent embarked
upon the course of conduct, found supra and infra, of
bargaining directly with the employees, in derogation of
their right to have union representation for that purpose,
under a threat of going out of business, with resultant loss
of employment by the employees, sought to have the
employees rescind their union authorization cards and
discharged and suspended employees engaged in protected
concerted union activities, which I find , in each instance,
to constitute an unfair labor practice.
Accordingly, I conclude and find that, as a result of these
unfair labor practices, the possibility of erasing their effects
and insuring a fair election is slight, and the employees'
sentiment, once expressed through cards, would, on
balance, be better protected by a bargaining order. I find
Respondent's failure and refusal to recognize and bargain,
in the circumstances found herein, to be violative of the
provisions of Section 8(a)(5) and (1) of the Act.
b. Respondent's negotiations and agreements with
employees
I have found, supra, that Brown , the only driver who
crossed the picket line and worked during the strike, met
with McGowan, on December 1, in an effort to ascertain
what might be done to persuade the drivers to abandon the
Union and return to work. Brown advised McGowan that
Powell was divesting himself of the city of Seattle contract
the following morning.
Respondent's assertion , in its opening statement, that
Respondent's agreements with the employees, dated
December 2 and 7, were the product of spontaneous
activity by the drivers, including Brown, Wyllys, and
Inc., 183 NLRB No. 4; Central Soya of Canton, Inc., 180 NLRB 546; The
Brescome Distributors Corporation, 179 NLRB 787; and Garland Knitting
Mills of Beaufort, South Carolina, Inc., 178 NLRB 396.
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McGowan , is without substance . The activity of Powell, to
accomplish the result , is transparent.
Brown related that , after his conversation with McGow-
an, on December 1, "I hoped there could be some sort of
agreement reached ." Asked if he talked to Powell about
this , Brown responded , "Yes, I talked to him . I told him
the idea I had in mind , yes." It is patent , and I find, that
this preceded Brown rejoining McGowan and the decision
to call the drivers to the meeting held on December 1.
Brown related he discussed with McGowan, "Well , it dust
got around to what is the problem , what do the guys want
to change , etc., could we make the changes without the
Union, this kind of thing ." I have found that Powell
approved the proposal of Brown , prior to the meeting of
the drivers.
I have found that , at the meeting, McGowan advised the
drivers that Powell would go out of business , because he
would not join the Union , and that Brown stated that
Powell had a meeting, the next morning , to sell the city
contract . I have found that Wyllys, unwilling to accept
these representations , called Powell and was advised by
Powell that he was going to sell the business if the drivers
refused to return to work . It was in this coercive posture
that the drivers were enticed into an acceptance of the
conditions proposed by Brown , with the approval of
Powell.
The decision of the Supreme Court in Exchange Parts49
appears appropos:
The broad purpose of § 8(a)( 1) is to establish "the right
of employees to organize for mutual aid without
employer interference ." [Citation omitted]. We have no
doubt that it prohibits not only intrusive threats and
promises but also conduct immediately favorable to
employees which is undertaken with the express
purpose of impinging upon their freedom of choice for
or against unionization and is reasonably calculated to
have that effect. In Medo Photo Supply Corp. v.
N.L.R.B., 321 U.S. 678, 686 , this Court said: "The
action of employees with respect to the choice of their
bargaining agents may be induced by favors bestowed
by the employer, as well as by his threats or domina-
tion ." Although in that case , there was already a
designated bargaining agent , and the offer of "favors"
was in response to a suggestion of the employees that
they would leave the Union if favors were bestowed,
the principles which dictated the result there are fully
applicable here . The danger inherent in well-timed
increases in benefits is the suggestion of a fist inside the
velvet glove , Employees are not likely to miss the
inference that the source of benefits now conferred is
also the source from which future benefits must flow
and which may dry up if it is not obliged.
In Medo Photo the Supreme Court held:
Bargaining carried on by the employer directly with the
employees , whether a minority or a majority, who have
not revoked their designation of a bargaining agent,
would be subversive of the mode of collective bargain-
ing which the statute has ordained , as the Board, the
expert party in this field , has found . Such conduct is
therefore an interference with the rights guaranteed by
§ 7 and a violation of § 8(1) of the Act. [Id . at 684.]
It is patent that Respondent 's conduct , in approving the
actions of Brown , in engaging in the coercive threat to go
out of business , and in entering into the agreements of
December 2 and 7 , was, in each instance , in derogation of
the rights of the employees to be represented by the
collective-bargaining representative they had selected, and
such conduct constituted unfair labor practices , in deroga-
tion of the provisions of Section 8(aX5) and ( 1) of the Act.
I find accordingly.
c. Interference, restraint, and coercion
I have found, supra, that Thornton advised Gaddis,
Mastin , and Swain , on approximately December 2, that
they could revoke union authorization cards they had
signed , and thus rescind the designation they had made of
the Union as their collective -bargaining representative. It is
undisputed that these employees were still on strike at the
time these representations were made . Respondent sought
to have them abandon their strike activity.
Respondent , in its brief , would distinguish between
advising an employee what he "could " do, and "urging"
him to take action.
General Counsel, in his brief , asserts that Thornton
solicited the employees to withdraw from the Union, and
in the case of Swain, after Swain had returned to work,
inquired whether he had taken care of it. I concur.
I have found , supra, that Powell, on or about December
5, advised Mastin that Powell had been fighting the union
for 15 years and was not going to recognize the Union.
There are numerous Board and court decisions which
hold that aiding, abetting, encouraging , or soliciting
resignations of employees from a union by management is
coercive conduct, and in derogation of the proscriptions of
Section 8(a)(1) of the Act. Similarly , a threat by an
employer to an employee that the employer will not
recognize or bargain with a union is coercive conduct and,
as such, is violative of the proscriptions of Section 8(a)(I)
of the Act . I find accordingly.
d. Discharge of Peery and Ferguson on
November 30
I have found , supra, on the credited testimony of Peery,
that Peery advised Thornton that Peery desired to join the
Union . Later, Peery left the Fairview lot, in an unsuccess-
ful effort to accomplish that purpose . I have found that
Thornton advised Powell of Peery's action in leaving the
Fairview lot . I find it reasonable to infer that Thornton
also advised Powell of Peery's intentions . I have found that
Ferguson was picketing, at the Fairview lot, with Peery
standing next to him, when Powell arrived, and advised
both of them that they were fired and could not work for
Respondent any longer.
Respondent , in its brief, urges that Peery was not eligible
for membership in the bargaining unit, and ipso facto could
not have been engaged in concerted protected activity. I
find no ment in this assertion.
Respondent , in its brief , urges that the recitation of
49 NLRB v Exchange Parts Co, 375 U S 405,409
LANG TOWING, INC.
Ferguson that Powell stated that Ferguson "could" be fired
does not establish the fact of firing. While it is true that
Ferguson was uncertain as to precisely what statement
Powell made, Peery was not. I have found Peery credible,
and the fact of the discharge of both thus established.
A discharge of an employee for engaging in protected
concerted activities is patently violative of the proscrip-
tions of Section 8(a)(1) of the Act. Since the remedy is the
same, I find it unnecessary to determine if the discharges
also constituted violations of Section 8(a)(3).
e. Suspension of Hokenson on November 30
It is undisputed that Hokenson , on Sunday morning,
November 28, about 7 a.m., while entering the Fairview lot
towing a vehicle , swerved his tow truck to avoid hitting a
pedestrian and collided with a post , which resulted in
damage to the vehicle , resulting in no expense to
Respondent , since the vehicle has not been since repaired.
As a result , Hokenson was suspended for 5 days. The sole
question is whether the suspension of Hokenson was
discriminatorily motivated.
It is essential to review the intervening events in arriving
at a determination . The record reflects that Powell was
promptly advised , on Sunday morning , of Hokenson's
accident and took no action prior to Monday, at the
earliest , when he advised Thornton to investigate the
circumstances . On Monday , November 29, about 8:15
a.m., Newsham and Simmons delivered the Union's
request for recognition and bargaining to Thornton. While
Thornton sought to establish that Wyllys advised that the
actuator valve was not functioning properly, I have
credited Wyllys' testimony to the contrary, finding no
evidence that the actuator valve was ever repaired. While
Thornton asserted he discussed the accident with Holmes,
the lot attendant and the only witness, I have credited
Holmes' recitation that neither Powell nor Thornton
discussed the accident with him at any time.
Hokenson was permitted to work his regular shift, on
Monday night , and was suspended , by Thornton, on
Tuesday morning, November 30 , at the end of that shift.
Powell acknowledged having discussed the matter of the
suspension with Thornton, prior to the suspension.50 The
record is replete with evidence , which I have set forth,
supra, of other drivers being involved in accidents, many of
which could be classified as involving driver error , none of
which resulted in suspension or discipline 51 Thornton
asserted the reason for the suspension was, "We wanted to
impress upon him [Hokenson ] and the other employees at
this time that this kind of thing could be avoided." It is
patent that the same observation would apply to a number
of the other accidents described , supra.
The recitation of Thornton that he did not know of
Hokenson 's union activities at the time of the suspension is
rejected . Respondent's total complement of employees was
12 drivers, 5 dispatchers , a small number of lot attendants,
Powell and Thornton , and presumably some office help.
In numerous cases the Board and courts have held that
direct knowledge of an employee's union activities is not a
50 Powell acknowledged that in his pretrial statement he had acknowl-
edged an unawareness of Hokenson's prior accident,
643
sine qua non for finding that an employee had been
suspended or discharged because of such activity but may
be inferred from the record as a whole. The small number
of employees and the abruptness and timing of the
suspension are among the factors considered. Wiese Plow
Welding Co., Inc., 123 NLRB 616.
The unexplained coincidence of time with respect to the
principal events has been found to be no coincidence at all,
but rather part of a deliberate effort by the management to
scotch the lawful measures of the employees before they
had progressed too far toward fruition. The court held that
if employees were discharged partly because of their
participation in a campaign to establish a Union, and
partly because of some neglect or delinquency, there is
nonetheless a violation of the Act. N.LR.B. v. Jamestown
Sterling Corp., 211 F.2d 725 (C.A. 2).
The existence of some justifiable ground for discharge or
layoff is no defense if it was not "the moving cause." Wells,
Inc. v. N.L.R.B., 162 F.2d 457, 460 (C.A. 9).
The abruptness of a discharge, and its timing, have been
found to be persuasive evidence as to motivation. N.L.R.B.
v. Montgomery Ward & Co., 242 F.2d 497, 502 (C.A. 2);
N.L.R.B. v. Southern Desk Co., 246 F.2d 53, 54 (C.A. 4).
The Board found a discharge (suspension) discriminato-
rily motivated by reason of the unconvincing character of
the reasons adduced to support the discharge. N.LR.B. v.
Radcliffe, 211 F.2d 309, 314-315 (C.A. 9); N.LR.B. v.
Dant, 207 F.2d 165, 167, (C.A. 9).
In view of the above facts, and upon the entire record as
a whole, I believe and find that Respondent's purported
reasons for the suspension of Hokenson were pretextuous
and the real reason and moving cause was the union
activities of said employee, and said suspension constituted
discrimination to discourage membership in the Union, in
violation of the provisions of Section 8(a)(3) and (1) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operation of the
Respondent, 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.
V. THE REMEDY
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices , I shall recom-
mend that it cease and desist therefrom, and take certain
affirmative action designed to effectuate the policies of the
Act.
It will be recommended that Respondent, upon request,
recognize and bargain collectively with International
Brotherhood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America , Local No . 174, as the exclusive
representative of all the employees in the unit herein found
51 1 do not consider the discharge of Peace , who had been involved in
four accidents , the last of which cost the Respondent $400, relevant.
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to be appropriate, for the purpose of collective bargaining,
with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment, and, if an
understanding is reached, upon request, embody such
understanding in a signed agreement. It has been found
that Respondent discharged Paul J. Ferguson and Rick
Peery, on November 30, because of their having engaged in
protected concerted activity, and that Respondent sus-
pended Gerald F. Hokenson, on November 30, for 5 days,
for reasons which were discriminatorily motivated. It
appears undisputed that all three named employees were
reinstated within a few days thereafter. Accordingly, I
recommend that Respondent make each of said employees
whole for any loss of pay each may have suffered by
reason of said discharges or suspension. Said loss of pay
shall be based on the earnings each would have earned
from the date of discharge or suspension, November 30,
until the date each was reinstated, less net earnings, of
each, during said period. Interest on backpay shall be
computed in the manner set forth in Isis Plumbing and
Heating Co., 138 NLRB 716.
It is also recommended that Respondent be ordered to
make available to the Board, upon request, payroll and
other records to facilitate checking the amount of earnings
due.
As stated by the Board, the policy of the Act to insure
industrial peace through collective bargaining can only be
effectuated when speedy access to uncrowded Board and
court dockets is available. To discourage future frivolous
litigation, to effectuate the policies of the Act, and to serve
the public interest, the Board found it to be just and proper
to order Respondents to reimburse the Board and the
Union for their expenses incurred in the investigation,
presentation, and conduct of these cases. Tiidee Products,
Inc., 194 NLRB No. 198.52
In Tiidee 11,53 the Board found:
Respondent violated Section 8(a)(1), (3), and (4) of the
Act by conduct which, as did its like conduct in Tiidee
I, clearly manifested its hostility toward the concept of
collective bargaining and animus toward employees
who it believed espoused unionization . Additionally,
while pursuing in Tiidee I its frivolous objections to
recognizing and bargaining with the Union, Respon-
dent violated Section 8(a)(5) and (1) of the Act, in the
instant case, by ignoring its employees' statutory
representative and unilaterally effecting changes in the
employment relationship. In such circumstances, Res-
pondent's refusal to bargain with the Union over
mandatory subjects of collective bargaining in the
instant case cannot be viewed in isolation. Rather, it
must be examined in the total context of Respondent's
entire course of unfair labor practices. So considered,
the conclusion is inescapable that the latter conduct
was a continuation of the conduct begun in Tiidee I
and was similarly in furtherance of Respondent's
ultimate objectives; i.e., to deny to its employees the
exercise of those rights guaranteed to them by Section 7
11 See also NLRB v Ramada Inns, Inc, 457 F 2d 512 , (C A 1), Local
Union 676, Intl Union of North America , AFL-CIO v N L R B , 463 F.2d
953 (CADC)
53 Tiidee Products, Inc, 196 NLRB No 27
of the Act . It is in this light that we must determine
whether or not the remedy herein should be revised.
[ Ibid. ]
Finding that Respondent 's purported defenses constitute
frivolous litigation , and having found that Respondent has
engaged in a flagrant violation of the collective-bargaining
principle and clearly manifested its hostility toward the
concept of collective bargaining and animus toward the
employees who it believed espoused unionization, by
conduct violative of Section 8(axl), (3), and (5) of the Act,
as stated by the Board , to discourage frivolous litigation
for an unlawful object and to undo some of the effects of
Respondent 's unlawful conduct , I will recommend that
Respondents be ordered to pay the following costs and
expenses incurred by the Board and the Union : Reasona-
ble counsel fees , salaries , witness fees , transcript and
record costs , printing costs , travel expenses and per diem,
and other reasonable costs and expenses.54
In view of the nature of the unfair labor practices
committed , the commission of similar and other unfair
labor practices reasonably may be anticipated. I shall
therefore recommend that Respondent be ordered to cease
and desist from in any manner infringing upon rights
guaranteed to its employees by Section 7 of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
and in activities affecting commerce, within the meaning of
Section 2(2), (6), and (7) of the Act.
2. International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Local No. 174, is
a labor organization within the meaning of Section 2(5) of
the Act.
3. All driver employees of Respondent employed at
Seattle , Washington , excluding all office clerical employ-
ees, dispatchers , lot attendant employees , mechanics,
professional employees , guards , and supervisors as defined
in the Act, constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Section 9(b) of
the Act.
4. At all times , since November 28, 1971 , the Union has
been the exclusive representative of all the employees, for
the purpose of collective bargaining, in the aforesaid
appropriate unit, with respect to rates of pay, wages, hours
of employment , and other terms and conditions of
employment , within the meaning of Section 9(a) of the Act.
5. By failing and refusing, at all times , since November
29, 1971, to recognize and bargain in good faith with the
Union , as the exclusive bargaining representative of its
employees, in the aforesaid appropriate unit , by bargaining
directly with said employees, and by unilaterally modifying
the terms and conditions of their employment , without
consultation with the Union, Respondent has, in each
instance , engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
6. By discriminating in regard to the hire and tenure of
5+ See also Rule 38, Federal Rules of Appellate Procedure Cf. Sprague v.
Ticonic National Bank , 307 U S 161, 166 ; Schauffler v United Association of
Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the
U S and Canada, Local 420, AFL, 246 F 2d 867 (C.A. 3).
LANG TOWING, INC. 645
employment, and terms and conditions of employment, of
Gerald F. Hokenson, by suspending Hokenson for 5 days,
on November 30, 1971, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
7. By interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed in Section 7
of the Act, to the extent found under the section III, E,
titled "Interference, Restraint, and Coercion," and by
discharging Paul J. Ferguson and Rick Peery, because they
engaged in protected concerted activity, Respondent has,
in each instance, engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER55
On the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
and pursuant to Section 10(c) of the Act, as amended, I
recommend that Lang Towing, Inc. and Lang Towing No.
2, Inc., their officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to recognize and bargain
collectively in good faith with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local No. 174, as the exclusive representative of
all employees in the unit herein found to be appropriate,
for the purpose of collective bargaining, with respect to
rates of pay, wages, hours of employment, and other terms
and conditions of employment.
(b) Unilaterally granting benefits to its employees to
induce them to refrain from becoming or remaining
members of, or to withdraw their support or activities on
behalf of, the above-named Union, or unilaterally chang-
ing the wages, hours, or the terms and conditions of
employment of unit employees, without prior consultation
and bargaining with the above-named Union concerning
the effects of such a decision, or bargaining individually
with employees; provided, however, that nothing in this
recommended Order shall be construed as requiring the
Respondent to vary or abandon any economic benefit, or
any term or condition of employment, which it has
heretofore established.
(c) Discouraging membership in International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local No. 174, or any other union, or
discouraging the free exercise of rights guaranteed by
Section 7 of the Act, by discriminating against any
employee in regard to his hire or tenure of employment, or
any term or condition of employment, including discharg-
ing employees for engaging in protected concerted activi-
ties, or suspending employees for engaging in union
activities.
55 In the event no exceptions are filed as provided in Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , recommendations, 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.
(d) Soliciting employees to revoke union authorization
cards, or threatening employees that Respondent will not
recognize the Union, in a manner violative of the
provisions of Section 8(a)(1) of the Act.
(e) In any other manner, interfering with, restraining, or
coercing its employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist
the above-named Union, or any other labor organization,
to bargain collectively through representatives of their own
choosing, and to engage in any other concerted activity for
the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities,
except to the extent that such right may be affected by an
agreement requiring membership in a labor organization ^as
a condition of employment, as authorized in Section
8(a)(3) of the Act, as modified by the Labor Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Upon request, bargain collectively with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local No. 174, as the exclusive
representative of all the employees in the aforesaid
appropriate unit and, if an understanding is reached, upon
request, embody such understanding in a signed agree-
ment.
(b) Make whole Gerald F. Hokenson, Paul J. Ferguson,
and Rick Peery for any loss of pay each has suffered by
reason of Respondent's discrimination against each, with
interest, in accordance with the recommendations set forth
in "The Remedy" herein.
(c) Preserve and, upon request, make available to the
Board, or its agents, for inspection and reproduction, all
payroll records, social security reports, timecards, person-
nel files , and all other records necessary to analyze,
compute, and determine the amount of backpay to which
each of the named employees may be entitled under the
terms of this Trial Examiner's Decision.
(d) Pay to the Board and the Union the costs and
expenses incurred by each in the investigation, preparation,
presentation, and conduct of this case, before the National
Labor Relations Board, as provided in "The Remedy"
herein. Such costs to be determined at the compliance
stage of these proceedings.
(e) Post at its plant in Seattle, Washington, copies of the
attached notice marked "Appendix." 56 Copies of said
notice, on forms to be provided by the Regional Director
for Region 19, after being duly signed by Respondent's
authorized representative, shall be posted by the Respon-
dent and 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 Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director for Region 19, in
56 In the event that 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."
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
writing, within 20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to comply
with the foregoing Recommended Order.
IT IS FURTHER RECOMMENDED that unless Respondent
shall, within 20 days from the date of the receipt of this
Trial Examiner 's Decision , notify said Regional Director,
in writing, it will comply with the foregoing Recommended
Order,57 the National Labor Relations Board issue an
Order requiring that Respondent take the action aforesaid.
IT IS FURTHER RECOMMENDED that the allegations of
paragraph 15 of the complaint be dismissed.
51 In the event that this Recommended Order is adopted by the Board , 20 days from the date of this Order, what steps Respondent has taken to
after exceptions have been filed , this provision shall be modified to read comply herewith
"Notify the Regional Director for the Nineteenth Region , in writing , within