Nates Truck Line, Inc.

National Labor Relations Board - Board Decisions

Nov 12, 1959

125 N.L.R.B. 52 (N.L.R.B. 1959)

52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that
WE WILL NOT discourage membership in International Union of Operating
Engineers, Local 106, AFL-CIO, or in any other labor organization of our
employees, by discharging, refusing to reinstate, or in any other manner dis-
crimmatmg in regard to their hire or tenure of employment or any term or
condition of employment
WE WILL NOT assist, contribute support to, or in any other manner interfere
with the administration of Local 294, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or with the formation and
administration of any other labor organization
WE WILL NOT threaten employees with reprisals or make them promises of
benefit to discourage membership in or activity on behalf of any labor organi-
zation, or interrogate them as to their union affiliation or adherence in a manner
violative of Section 8 (a) (1) of the Act
WE WILL NOT in any other manner interfere with, restrain, or coerce em-
ployees in the exercise of the right of self-organization, to form labor organiza-
tions, to join or assist any labor organization, to bargain collectively through
representatives of their own choosing, and to engage in any other concerted
activities for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or 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
WE WILL offer Ernest Johnson and Ernest Germaine immediate and full re-
instatement to their former or substantially equivalent positions, without preju-
dice to their seniority and other rights and privileges, and make them whole
for any loss of earnings they may have suffered by reason of the discrimination
against them
WE WILL, upon request, bargain collectively with International Union of
Operating Engineers, Local 106, AFL-CIO, as the exclusive representative of
our employees in the appropriate unit described herein, and, if an understand-
ing is reached, embody such understanding in a signed agreement The said
appropriate unit is
All employees at our Saratoga Springs, New York, plant, exclusive of
guards, watchmen, and supervisors as defined in the Act
PALLETTE STONE CORPORATION, INC,
Employer
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material
Nebraska , Illinois, Colorado Express, Inc., d/b/a Nates Truck
Line, Inc. and Clealon Bray. Case No 30-CA-697 Novem-
ber 12, 1959
DECISION AND ORDER -
On June 30, 1959, Trial Examiner Wallace Royster issued his
Intermediate Report in the above-entitled proceeding; fi.Iiding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
125 NLRB No 17
NATES TRUCK LINE, INC. 53
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this proceeding to a three-
member panel [Chairman Leedom and Members Bean and Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and the brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Nebraska, Illi-
nois, Colorado Express, Inc., d/b/a Nates Truck Line, Inc., Denver,
Colorado, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership of any employee in Line Drivers
Local No. 961, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or in any other labor organi-
zation, by discharging any employee or in any other manner dis-
criminating against any employee in regard to his hire or tenure of
employment or any term or condition of employment except as author-
ized in Section 8(a) (3) of the Act.
(b) Questioning or otherwise seeking information from any em-
ployee in respect to his membership or interest in any labor organiza-
tion in such manner as to interfere with, restrain, or coerce him in the
exercise of rights guaranteed by the Act.
(c) Threatening any employee with reprisals because of member-
ship, or interest, in any labor organization or suggesting by means of
threats or questioning that any employee will be discharged if he
joins, participates, or evidences any interest, in any labor organization.
(d) In any other manner interfering with, restraining, or coercing
employees in the exercise of their right to self-organization, to form,
join, or assist any labor organization, or join or assist Line Drivers
Local No. 961, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, to bargain collectively
through representatives of their own choosing, to engage in concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all of 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.
535828-60-vol. 125-5
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Clealon Bray immediate and full reinstatement to
his former or substantially equivalent position without prejudice to
his seniority and other rights and privileges and make him whole in
the manner and method set forth in the section of the Intermediate
Report entitled "The Remedy."
(b) Preserve and make available to the National Labor Relations
Board or its agents upon reasonable request, for examination and
copying, all payroll records, social-security payment records, time-
cards, personnel records and reports, and all other records necessary
to or convenient for an analysis of the amount of backpay due under
the terms of this recommendation.
(c) Post in conspicuous places, including all places where notices
to employees are customarily posted, copies of the notice attached to
the Intermediate Report marked "Appendix." 1 Copies of said notice,
to be furnished by the Regional Director for the Seventeenth Region,
shall, after being signed by a duly authorized representative of the
Respondent, be posted by it immediately upon receipt thereof and
maintained by it for 60 consecutive days thereafter. Reasonable
steps shall be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Seventeenth Region in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply therewith.
"This notice is amended by substituting for the words "The Recommendations of a
Trial Examiner " the words "A Decision and Order ." In the event that this Order is
enforced by a decree of a United States Court of Appeals, there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding with the Respondent and the General Counsel represented was
held before the duly designated Trial Examiner in Denver, Colorado, on May 12
and 13, 1959, on the complaint of the General Counsel and answer of Nebraska,
Illinois, Colorado Express, Inc., d/b/a Nates Truck Line, Inc., herein called the
Respondent. The issues litigated were whether the Respondent violated Section
8(a) (1) and (3) of the National Labor Relations Act, herein called the Act. Briefs
from counsel have been received and considered.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Respondent, a Colorado corporation with its principal place of business in
Denver, Colorado, is engaged in the transportation and delivery of meat and
meat products and miscellaneous freight to and from Chicago, Illinois; Detroit,
Michigan; Omaha, Nebraska; and Denver, Colorado. During the calendar year
ending December 31, 1958, the Respondent received revenues in excess of $50,000
for transportation services from the delivery of freight to and from the cities men-
NATES TRUCK LINE, INC. 05
tioned above . I find that the Respondent is engaged in commerce and in an activity
affecting commerce within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Line Drivers Local No. 961, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein called the Union, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The evidence
In the summer of 1958, Clealon Bray, whose discharge is alleged to have been
unlawful, was in the employ of Curtis, Inc., a trucking company with a terminal in
Denver. Bray occasionally spoke to Oscar Mandel and Donald L. Foreman, Re-
spondent's president and vice president, respectively, in an effort to obtain employ-
ment with the Respondent. In December 1958, Bray quit his job with Curtis and
about December 10 began work for the Respondent as a "second driver." The evi-
dence establishes, and I find, that the Respondent's trucks are manned by two
drivers, one designated as "first" and the other as "second." The first driver is in
charge of the vehicle, handles the expense money, determines the route to be
followed, where stops are to be made, and receives $5 more per trip than the second
driver. Returning to Denver from the first trip that he made in the early morning
hours, Bray was instructed to be at hand at 5 a.m. to assist in unloading. He over-
slept and did not appear for work until about 4 hours later. His absence necessitated
the employment of another to assist in the unloading and caused Mandel to comment
to Bray that if the latter did not want to work he need only say so. Despite this
delinquency, Bray was promoted to first driver in late December and continued in
that capacity until his discharge. His run generally was from Denver to Detroit
and Chicago.
In late 1958 or early 1959, the Union was engaged in an effort to gain membership
among the drivers of Curtis, Inc. At the solicitation of a Curtis driver, Bray signed
a union card.
On January 6, 1959, with Second Driver Edward Fantaski, Bray set out on a trip
to Detroit. Arriving there January 8, Bray unloaded and telephoned Mandel for
instruction. Bray testified that the phone call to Mandel was made at about noon,
that Mandel told him to go to Chicago for a load, that he told Mandel he could not
get there in time to load out that day, and that Mandel told him to be in Chicago
by 7 a.m. on the 9th. Whereupon Bray left Fantaski with the truck and visited
with a relative. Returning to the truck that evening, Bray and Fantaski drove to
Chicago arriving there at about 2 a.m. About 24 hours later a trailer load was avail-
able for delivery to Denver and Bray prepared to start off with it. But some sort
of difficulty had developed between Bray and Fantaski. Bray testified that he had
seen Fantaski drinking beer during the evening and that he felt it unwise to let him
drive. Fantaski insisted that he be permitted to do so and in consequence Bray
telephoned Mandel for instruction. Bray told Mandel that Fantaski had been
drinking but that he was not drunk. Mandel told Bray to use his best judgment and
if he could not reach accord with Fantaski to send the latter back to Denver by bus.
Bray left Chicago alone and Fantaski returned to Denver by bus. At some time
after leaving Denver on January 6, Bray had confided to Fantaski that he had signed
a card for the Union.
Arriving in Denver in the evening of January 11, Bray was met by Foreman who
immediately dispatched him on another trip to Omaha. Presumably because
Fantaski had not yet returned, another driver was hired to accompany Bray for the
Omaha round trip. Ready to return to Denver in the evening of January 12, Bray
was instructed by Foreman to get in by 5 a.m. Bray protested that it was im-
possible for him to make the trip that rapidly and actually arrived, he testified, at
6:45 in the morning of January 13.
The facts recited up to this point are not substantially disputed. It is true that
Bray's log for January 8 shows him to have been off duty in Detroit at 8 a.m. rather
than at noon, as he testified. According to Bray, hours of work and some other
items are entered in such a fashion as to satisfy on-duty and off-duty requirements
of the Interstate Commerce Commission and frequently do not truly reflect the
actual hours worked. I believe that Bray's testimony in this particular is reliable
and I accept it. What happened between Bray and representatives of the Respondent
on January 13 and thereafter is, however, in sharpest dispute, beyond possibility, for
the most part, of reconciliation. I will set down first the version of Bray and his
supporting witness, Vollie Penrod.
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After delivering his freight on the morning of January 13, Bray went to Foreman's
office. There, in the presence of Fantaski, Foreman asked Bray to tell him about the
"trouble" in Chicago. Bray said that Fantaski had taken a few drinks and that he
did not want Fantaski to drive. Fantaski said that if he could not drive he would
not ride so, after phoning Mandel, Bray gave Fantaski his bus fare to Denver and
returned alone with the truck. Foreman asked Fantaski if Bray had made a truthful
report and Fantaski agreed that he had. Foreman said that the two of them had
best not drive as a pair any longer as there always would be friction between them
adding, "You are both good drivers. I don't want to lose either one of you." Bray
left but returned to the office at about 11 to turn in some bills and papers in con-
nection with his last trip and to get his pay. Mandel told him that Foreman wanted
to see him. Sometime soon after noon, Foreman called Bray to his office and said,
"I better give you a trip off before I get mad and fire you." Bray asked if there
was something wrong with his work. Foreman said that there was not but "didn't
you sign a damned union card?" Bray admitted that he had. Foreman said that
news of this had first come to him the day before and that it had angered him greatly.
Bray suggested that there was nothing wrong with the Union and Foreman said he
had nothing against the Union but that the Respondent could not afford "to go
union." Foreman went on to explain that Bray was being paid more for the
Detroit run now than he would get under a union mileage rate. Bray said that he
was getting $8.50 less for a Chicago trip than he would get under a mileage
arrangement. When Foreman asked Bray why he would like to have a union Bray
answered that working conditions would be better and that if he had a union behind
him Foreman would not be able to make him take a trip off as the latter said he
was about to do. The conversation ended when Foreman told Bray to take a trip
off so that both of them might "cool off," suggested that Bray might decide to forget
the Union, and said, "We can't afford to go union, we will never go union." Fore-
man told Bray to bring the card he had signed to him; that he wanted to see it.
That evening the truck which Bray had been driving left with Fantaski in Bray's
place.
Four or five days later, Bray asked Foreman when he could go to work. Foreman
asked if Bray had retrieved his card. Bray said that he had been unable to do so.
Again on January 19, Bray asked for work and again Foreman asked to see the union
card. Bray still asserted his inability to get it back. Foreman said that Bray had
"better do something." On January 21, attempting to reach Foreman by telephone,
Bray spoke to Mandel and asked what his status was. Mandel said that Foreman
had not discussed the matter with him and that he did not know. When Bray said
that he might seek relief from the "Labor Board," Mandel retorted that Bray could
be discharged for other reasons, among them his alleged misplacing of some papers
in connection with his last run from Omaha and his failure to bring that run into
Denver at the early hour directed. A day or two later Bray and Penrod met Foreman
at the yard where Respondent kept its trucks. Still again Bray asked when he could
go to work. Still again Foreman asked for the union card and said that when Bray
brought it to Foreman, "we'll see what we can do." On January 24 Bray and Fore-
man met at Curtis' yard. In response to Bray's question Foreman said that he did
not know when there would be work for him but that he was considering putting
on another truck which would necessitate hiring another driver. Bray said that he
wanted to start drawing unemployment compensation if he could not work and
Foreman said that he might consider himself to be in a layoff status. Bray filed
for such compensation that day.
On some later date, but probably still within the month of January, Bray asked
Foreman if he would provide Bray with a good reference in connection with a new
job Bray then had in prospect. Foreman said that he would.
Now to turn to the testimony of Vollie Penrod, Jr., Bray's friend, his brother-in-
law, and a driver for Curtis, Inc., who signed a union card at about the same time
as Bray. On the morning of January 13, Penrod came to the Respondent's office
in the expectation of meeting Bray. There he became engaged in conversation with
Foreman. The talk quickly veered from the subject of trucking to the Union. Fore-
man commented that it seemed that the Curtis drivers were interested in the Union.
Penrod agreed that this was so saying that about 90 percent of them favored it.
Foreman asked if the drivers were trying to lose their jobs. Foreman went on to
predict that Curtis would never deal with a union; that their trucks would be sold if
necessary to avoid such a result. The talk continued and Foreman said that he
understood that Bray, too, had signed a union card. Penrod suggested that Foreman
put that question to Bray. The conversation ended with Foreman saying that neither
the Respondent nor Curtis could afford "to go union" and that he had been angry
enough with Bray to fire him. Later in the day, while Bray was closeted with
NATES TRUCK. LINE, INC. 57
Foreman, Penrod had a talk with Mandel. Mandel commented about the Union
signing up Curtis employees , said that Curtis did not have the revenue to meet union
pay demands , and predicted that the Curtis drivers would lose their jobs because
Curtis would sell its equipment . Penrod then waited outside Foreman 's office for
Bray to appear . As Bray opened the door to come out, Penrod heard Bray ask if he
was fired. Foreman said that he was not but that he should take a trip off and "you
get that card back and everything will be all right."
About January 22 , Penrod and Bray were in a yard where Curtis equipment was
kept when they saw Foreman . Bray asked Foreman when he could go to work.
Foreman asked if Bray had taken care of "that little matter ." When Bray said that
he had not , Foreman said that when the card was brought to him "we'll get things
straightened out."
The testimony of Foreman and Mandel in respect to the conduct and words
attributed to them by Bray and Penrod follows:
Foreman testified that Bray , on the occasion of his hire, said that he had some
sort of a union card and that Foreman 's comment was that the Respondent did not
pay the union scale. On January 12, Foreman learned from Fantaski that Bray had
left his truck in Detroit for 11 or 12 hours on January 8 and that in Chicago on the
night of January 9 had missed some freight loads at a terminal because he was un-
willing to leave a television program he was watching in the lobby of a motel. As a
result Bray and Fantaski were delayed for several hours until another load developed.
Foreman met Bray when he arrived in Denver from Omaha in the morning of
January 13 , asked him why he was late, and directed him to go to Respondent's
office. There Foreman asked for Bray's account of the difficulty with Fantaski.
Bray said that Fantaski had been drinking , but not to the point of intoxication, and
had been sent to Denver by bus. Foreman asked if Bray had left the truck "un-
attended"' all day in Detroit. Bray admitted that he had . Foreman commented
that Bray 's attitude in general was bad and that he was not at all satisfied with him.
Foreman told Bray to come back later in the morning to talk further . Bray re-
turned at about 11 and met with Foreman and Fantaski . Foreman said that he had
received conflicting versions of incidents on the trip from the two of them. Fantaski
said that he had only one bottle of beer in Chicago. Foreman asked Bray if he had
left the truck in Detroit all day as Fantaski had reported . Bray again said that he
had but asserted that he had the permission of Mandel to do so. At this point
Mandel was called in from his adjoining office and asked if Bray's assertion was true.
"No," said Mandel . Bray protested that Mandel had told him he need not be in
Chicago until the morning of the 9th . According to Foreman , Mandel answered,
"I told you to get right into Chicago and get loaded out because we needed you back
here." Bray did not speak further on the point . Foreman asked Bray if he had
passed up two or three opportunities to leave Chicago earlier while he watched TV
in the motel . Bray conceded that he had and defended his conduct by saying that
he had left Chicago in "plenty of time ." Foreman asked Fantaski if it was true that
Bray wanted to spend a disproportionate amount of time in the sleeper berth.
Fantaski said that it was and Bray denied it. Fantaski confirmed his earlier report
to Foreman that Bray wanted to make "a lot of coffee stops along the way." Bray
said he made no more than the normal number of stops for that purpose . Through-
out the questioning Bray evidenced an "I don't care" attitude . Foreman concluded
that Fantaski was in the right and Bray in the wrong. He then told Bray that be-
cause he had left the truck unattended in Detroit , had failed to take the early
opportunities to load out of Chicago , and because of his attitude in general, the
Respondent had no further use for him . Bray left. There was no conversation at
an open door and Penrod was not in sight. Foreman denied that he had any con-
versation with Bray at any later time in the presence of Penrod . On some later
occasion , on meeting Bray away from Respondent 's premises , Bray said that he was
going to apply for unemployment compensation , that he thought he might try to
get into a used furniture business , and asked if Foreman could use him from time to
time as an extra driver . Foreman made no commitment to him. On a still later
date Bray called at the office , said that he had another job in prospect , and asked
for a recommendation as to his honesty . Foreman said that he would be happy to
supply it. Shortly after the discharge , Bray telephoned Foreman and asked if he
could go back to work. Foreman said he could not; that his discharge was not being
reconsidered . Sometime in February , after the charge in this proceeding had been
filed, Bray telephoned Foreman and in abusive and profane terms accused Foreman
of telling untruths about the case to an agent of the Board. Prior to the discharge
1 Actually it is not contended that Bray left the truck "unattended ." Fantaski stayed
with it during Bray's absence.
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Foreman found occasion to be critical of Bray because of his "griping," because of
his failure to keep the wheels and exhaust pipes on his truck cleaned and painted,
and because he overslept on a morning when he should have been helping to unload.
Foreman denied that the subject of the Union came up at any time in the con-
versations with Bray on January 13 or thereafter, denied that he saw or spoke to
Penrod on January 13, and denied that he spoke to Bray at any time after his
discharge in the presence of Penrod.
Now to the testimony of Mandel. Sometime subsequent to July 1, 1958, but
before the date of Bray's hire, Oscar Mandel testified, Bray said that he had signed a
union card at the Curtis operation and asked Mandel if that circumstance would hurt
his chance of employment with the Respondent. Mandel said that it would not. In
the small hours of January 10, Mandel received a telephone call from Bray speak-
ing from Chicago. Bray told him that he was having trouble with Fantaski; that
the two of them had been arguing and that Fantaski had been drinking. Mandel
suggested that, as Fantaski was not drunk, Bray should permit him to ride in the
truck. Bray answered that the two had been arguing so violently that he feared for
the safety of the truck. Mandel then spoke to Fantaski who admitted that he had
drunk a couple of beers, that he was having quite a bit of trouble with Bray, and
that he would give Mandel full information on his return to Denver. Speaking again
to Bray and hearing Bray say that he was afraid to have Fantaski ride with him,
Mandel told Bray to give Fantaski bus fare to Denver and to bring in the truck.
Mandel testified that he had no recollection of speaking with Penrod on January 13
and that "as to the best of [his] knowledge" he did not tell Penrod that the Curtis
employees would lose their jobs if they "went union." He also denied that he told
Bray on any occasion that he could find a pretext to justify Bray's discharge.
There is no mention in Mandel's testimony of any participation in the investigation
conducted by Foreman concerning the day that Bray spent away from the truck in
Detroit. According to Foreman, Mandel on January 13, denied in Bray's presence
that Bray had permission to spend some time in Detroit.
A consideration of the testimony of Bray offered in rebuttal tends to bring in
sharper contrast the conflict, particularly between Bray and Foreman, as to what
actually happened. Bray testified in considerable detail about what Fantaski and he
did in Detroit and Chicago but it is by no means clear that Bray reported everything
he testified to on the stand to Foreman in Denver. Bray denied that Foreman ac-
cused him of missing any opportunities to get loaded out of Chicago earlier than
the hour at which he left and explained that it was not until about 12:30 a.m. on
January 10 that his trailer finally was loaded. During the preceding evening, accord-
ing to Bray, he and Fantaski made several trips from the motel to the loading dock
to discover when they would be fully loaded as there was no arrangement whereby
this information would reach them at the motel. Bray denied that Mandel came
into Foreman's office at any time while he, Foreman, and Fantaski were there and
further denied that he was told by Foreman on January 13 that the Respondent no
longer could use him.
B. Conclusions
Too obviously this case must be decided by resolutions of credibility. The con-
flicts in the various versions offered for consideration are beyond reconciliation, can-
not find accommodation behind an understandable lapse of memory or permissible
misinterpretation, and can be explained only by a finding that one or more of the
witnesses has testified falsely.
I listened to Bray and Penrod testify, observing them the while, became aware
that cross-examination did not detract from the force of their testimony, and when
they were excused found that 1 believed them. Foreman and Mandel denied utter-
ing any words or engaging in any conduct that would tend to indicate that the
Respondent had committed an unfair labor practice. I thought at the close of the
hearing that their testimony did not merit belief and after a review of the record and
a consideration of the briefs, I adhere to that conviction. Because my resolution in
this matter rests in large measure upon a subjective reaction to the witnesses as they
testified it is difficult satisfactorily to detail reasons for belief or disbelief. It may be
expected that a party witness, and Bray, Foreman, and Mandel fall into that cate-
gory, will be influenced consciously or not in his testimony by his interest in the
outcome of the controversy. It is clear that Penrod and Bray are friends but I
doubt that Penrod for that reason would be willing to concoct a story in Bray's aid,
at least not in a forum where he would be, as he was, subjected to the cross-
examination of experienced counsel. Penrod's self-interest is not involved. I fully
believe that Penrod had the conversations with Foreman and Mandel in the morning
of January 13 as set forth in his testimony and upon the basis of his testimony find
that on that date Foreman said he had learned that Bray had signed a union card
NATES TRUCK LINE, INC. 59
and had been angry enough to fire him. I also find that on that date Penrod heard
Foreman tell Bray to get the card back.
It will be recalled that Bray filed his claim for unemployment compensation on
January 24 and testified that not until that date did he become certain that he had
little or no prospect of further work with the Respondent. There is no suggestion in
this record that Bray had no need to earn a living and I think it reasonable to assume
that he was dependent upon employment for income. Certainly, his repeated at-
tempts to come back to work for the Respondent tend to indicate this. This being
so one searches for a reason to explain the delay in registering as an unemployed
person and filing for unemployment benefits. If Bray had been discharged on Janu-
ary 13, as Foreman testified, it seems probable that Bray would promptly have
registered and made his claim for compensation. The fact that he did not do so
until January 24 supports his testimony that not until that date did he learn that he
was discharged or at least laid off for an indefinite period. I find that Bray was not
told until about January 24 that his employment was at an end.
The whole of Respondent's defense rests upon testimony that Bray was discharged
on January 13 and for cause. Prominent among the reasons advanced for this action
was that he left his truck for several hours in Detroit on January 8. Bray said that
he had Mandel's permission to do so. Foreman says that he had not. Yet one will
not find in this record any testimony by Mandel on that point. It is asserted that by
the delay in Detroit the Respondent was unable to keep the truck busy and thus lost
revenue. But there is no evidence that Bray could have been loaded in Chicago in
the evening of January 8. Bray said that there was no load ready for him there and
it is the fact that the truck remained in Chicago for about 24 hours before it was
loaded out. Fantaski, who perhaps could have shed some light on whether Bray
left Chicago as promptly as he should have, is no longer in Respondent's employ
and was not called as a witness. Whether he has left the Denver area is not shown.
I credit Bray in his testimony that he had permission to delay in Detroit and that
he left Chicago without unreasonable delay when a load was available to him 2
Foreman testified that in regard to the happenings in Chicago during the 24 hours
that Bray and Fantaski were there he believed the account of Fantaski and that
Bray did not deny Fantaski's assertions in any important particular. Bray, of course,
denied that Fantaski made the accusations that Foreman testified to. This much is
certain, that Bray thought it unwise to permit Fantaski to drive because he had the
odor of alcohol about him. I think that Bray's good faith in the matter is demon-
strated by the telephone call to Mandel in the early morning to describe the situa-
tion. I think that it can hardly be doubted that Bray acted prudently in the matter
and it would seem that Fantaski rather than Bray would be called upon to explain
his conduct to Foreman. Nonetheless Bray was discharged and Fantaski took his
place.
I am convinced and find that Foreman learned of the fact that Bray had signed a
union card, perhaps from Fantaski, and that this was the factor that moved him to
lay Bray off and finally to discharge him. I credit Bray's testimony that until
January 24 at least, Foreman held before him the bait of further employment if he
would retrieve the union card and bring it to Foreman.
Foreman's testimony that Bray had an "I don't care" attitude toward his work
and was lax in keeping wheels and exhaust pipes cleaned and painted derives, I find,
from an attempt to dredge up inconsequential irritations to justify an unlawful act.
I do not credit Foreman's testimony that these factors played a part in reaching the
decision to discharge Bray.
Mandel denied that he told Bray that his discharge could be justified onrounds
amounting to a pretext. Again I credit Bray. This evidences an awareness on the
part of Mandel that the Respondent was keeping Bray off work for reasons that
could not withstand examination.
I find that the Respondent on January 13, 1959, laid off Bray and later discharged
him because he had signed a card for the Union. By the layoff and discharge the
Respondent discouraged membership and activity in behalf of the Union and thereby
violated Section 8(a) (3) of the Act.
By the discharge, by questioning Bray about signing a union card, by telling both
Bray and Penrod that Curtis drivers would lose their employment because they
2 Bray readily conceded that he made entries on his drivers' log which were not in
accord with fact. He sometimes showed himself to be driving when off duty and vice
versa. He did not always make the stops indicated on the log or follow the route shown.
According to Bray, he was following a usual and accepted practice. Whether this is so
I do not decide . The circumstance does not weaken my conviction that Bray was a
truthful witness.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
favored the Union, and by telling Bray he could not work until he delivered the
card he had signed to Foreman, the Respondent interfered with, restrained, and
coerced employees in the exercise of rights guaranteed in Section 7 of the Act and
thereby violated Section 8(a)(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 con-
nection with its operations described in section I, 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 the Respondent has engaged in unfair labor practices violative
of Section 8(a)(1) and (3) of the Act, it will be recommended that it cease and
desist therefrom and take certain affirmative action designed to effectuate the policies
of the Act.
Having found that the Respondent discharged Clealon Bray on January 13, 1959,
in violation of the Act, it will be recommended that the Respondent offer him
immediate and full reinstatement to his former or substantially equivalent position
without prejudice to his seniority and other rights and privileges and make him
whole for any loss of pay he may have suffered by reason of the discrimination
against him by payment to him of a sum of money equal to the amount of wages
he would have earned on and subsequent to January 13 until the date of a proper
offer of reinstatement, less his net earnings from other employment in that period.
Loss of pay shall be computed in accordance with the formula and method prescribed
by the Board in F. W. Woolworth Company, 90 NLRB 289. As the character of
the unfair labor practices found herein is such as to strike at the heart of rights
guaranteed to employees in Section 7 of the Act, and because there is in my opinion
reasonable ground to anticipate that the Respondent will further infringe upon such
rights unless appropriately restrained, it will be recommended that the Respondent
refrain in the future from abridging any of the rights guaranteed employees in
the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this proceeding, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is and at all times material to this proceeding has been an
employer within the meaning of Section 2(2) of the Act.
2. The Union is and at all times material to this proceeding has been a labor
organization within the meaning of Section 2(5) of the Act.
3. By discriminatorily discharging Clealon Bray as found above, the Respondent
has engaged and is engaging in unfair labor practices within the meaning of Sec-
tion 8(a)(3) of the Act.
4. By the discriminatory discharge and by unlawful interrogation and threats the
Respondent has interfered with, restrained, and coerced employees in the exercise of
rights guaranteed in Section 7 of the Act and has thereby engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merceoryithin the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in Line Drivers Local No. 961, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, by discharging any employee or by
discriminating in any other manner against any employee in regard to his hire
or tenure of employment, or any term or condition of employment, except as
authorized in Section 8 (a) (3) of the National Labor Relations Act.
LOCAL 19, INT'L BROTHERHOOD OF LONGSHOREMEN 61
WE WILL NOT question or otherwise seek information from any employee in
respect to his membership or interest in any labor organiaztion in such manner
as to interfere with, restrain, or coerce him in the exercise of rights guaranteed
by the Act.
WE WILL offer to Clealon Bray immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority and other
rights and privileges and make him whole for any loss of pay he may have
suffered as a result of the discrimination against him.
WE WILL NOT by means of questioning or threats directed to employment
tenure or in any other manner interfere with, restrain, or coerce employees in
the exercise of their right to self-organization, to form, join, or assist any labor
organization, to join or assist Line Drivers Local No. 961, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
to bargain collectively through representatives of their own choosing, to engage
in concerted activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or 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.
All of our employees are free to become, remain, or refrain from becoming or
remaining members of any labor organization except to the extent that this right
may be affected. by an agreement in conformity with Section 8 (a) (3) of the Act.
NEBRASKA, ILLINOIS, COLORADO EXPRESS, INC.,
D/B/A NATES TRUCK LINE, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Local 19, International Brotherhood of Longshoremen, AFL-
CIO and Chicago Stevedoring Co., Inc. Cases Nos. 13-CB-541
and 13-CB-641. November 12, 1959
DECISION AND ORDER
On December 10, 1958, Trial Examiner Gerard Ryan issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in unfair labor practices as alleged in the
amended complaint, and recommending that the complaint be dis-
missed in its entirety. Thereafter, the General Counsel, the Respond-
ent, and the Charging Party 1 filed exceptions to the Intermediate
Report and supporting briefs.
The amended complaint alleges, inter alia, that Respondent did
and continues to refuse to bargain collectively with a voluntary asso-
ciation (herein called the Association) by demanding as a condition
precedent to signing the agreement with Chicago Stevedoring, a mem-
ber of the Association, that it agree to grant to the Respondent juris-
diction over work which that Company does not perform and that
such request has been repeatedly rejected.
1 Herein sometimes called Chicago Stevedoring.
-125 NLRB No. 1.