Northwest Drayage Co.

National Labor Relations Board - Board Decisions

Feb 9, 1973

201 N.L.R.B. 749 (N.L.R.B. 1973)

NORTHWEST DRAYAGE COMPANY 749
Northwest Drayage Company and Philip T. Quartaro.
Case 14-CA-6501
February 9, 1973
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On July 28, 1972, Administrative Law Judge'
Alvin Lieberman issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief, and Respondent filed a
brief in support of the Administrative Law Judge's
Decision.
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
only to the extent consistent herewith.
The Administrative Law Judge found, and we
agree, that by laying off employee Johnston, the shop
steward, after he attended a grievance hearing,
Respondent violated Section 8(a)(3) and (1) of the
Act. The Administrative Law Judge also found,
however, that Respondent did not violate Section
8(a)(3) and (1) of the Act in the layoffs of an
employee (Quartaro) who had been discharged and
then ordered reinstated pursuant to a grievance, and
all employees junior in seniority to Quartaro. We
disagree and find, contrary to the Administrative
Law Judge, for the reasons set forth below, that
Respondent violated 8(a)(3) and (1) by laying off
these men.
Respondent is a St. Louis, Missouri, local and
interstate carrier of motor freight, primarily consist-
ing of steel. Its steel hauling business had declined 59
percent between August 1971 and January 1972 due
to prior stockpiling by customers in anticipation of a
possible steel strike in August 1971. Respondent also
lost the patronage of one of its customers in
September 1971 and did not receive expected large
quantities of freight from a newly acquired customer
until February 1972.
Respondent's employees are represented by High-
way and City Freight Drivers, Dockmen and
Helpers, Local Union No. 600, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (the Union).
The contract between the Union and Respondent, in
effect for the last several years, allows Respondent to`
discharge a driver who permits an unauthorized
passenger to ride in Respondent's vehicles. It also
provides that layoffs should be in inverse order of
seniority and that, where necessary, grievances
should culminate in arbitration by a joint committee
of union and trucking industry representatives. Other
relevant provisions (a) require Respondent to pay an
employee on layoff for any holiday which falls within
30 days of his layoff if the employee is recalled
within 30 days and (b) allow a senior employee
involved in a general layoff to bump a junior
employee who may be driving for a "contract"
account,2 but only after 60 days from the date of the
layoff.
Pursuant to the contract Respondent, on October
1, 1971, discharged driver Quartaro for carrying an
unauthorized passenger in his truck. Prior to this
Quartaro had been involved in two accidents which
had cost $800. Following his discharge, Quartaro
filed a grievance which could not be resolved
through negotiation with Respondent's president,
Walterscheid; it was therefore referred to the "joint
committee" which heard the case on October 21,
1971.
The hearing was attended by, among others,
Quartaro, Walterscheid, and the shop steward,
Johnston, who was employed by Respondent as a
truckdriver. When Walterscheid saw Johnston he
stated angrily that Johnston was "supposed to be
driving a truck" instead of attending the hearing.
After the hearing, but also on October 21, the joint
committee ordered that despite the contract provi-
sion Quartaro was to be reinstated as of the following
Monday, October 25, with full seniority but without
backpay.
On Friday, October 22, however, Respondent
telephoned some other truck lines with which it did
business and told them it could no longer accept
incoming interlining3 business at its terminal since it
was having labor problems. Then, at the end of the
day, Respondent laid off Johnston, Quartaro (who
was directly below Johnston on the seniority list),
and seven other drivers junior to Quartaro. Johnston
was recalled on Wednesday, October 27, while
Quartaro was not recalled until February 11 and
some of those junior to Quartaro were not recalled
until March 6. Between these dates approximately 18
of the remaining 30 drivers including Johnston were
I The title of "Trial Examiner" was changed to "Administrative Law appearing at Respondent 's terminal.
Judge" effective August 19, 1972. 3 Respondent 's incoming interlining consists of receiving long-haul
2 Respondent assigns specific trucks and drivers to these accounts and freight on its dock, sorting it. reloading it onto trucks, and delivering the
they work under the direction and control of that account , seldom freight locally.
201 NLRB No. 99
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also laid off for various periods of time for economic
reasons.4
When Johnston was recalled he asked Walter-
scheid why he had been laid off. He was told by
Walterscheid that he (Walterscheid) "was just kind
of mad at seeing Johnston at the grievance hearing
and just laid Johnston off for a couple of days." The
record discloses that in further conversation Walter-
scheid told Johnston that Respondent had planned
to cut back its work but that the "Quartaro thing
triggered it."
Prior to Walterscheid's conversation with Johnston
on October 27, but after the layoff, Walterscheid
conversed separately with two other laid-off drivers,
Oestreich and Parker. During these conversations
Walterscheid remarked that "the Union was not
going to make him [Walterscheid] put him [Quarta-
ro] back to work," that "he hated like the devil to lay
off the men but there was nothing he could do since
he had to protect the interest of the company," and
"that the Union had upheld him [Quartaro] when he
knew he was wrong."
1. As noted, the Administrative Law Judge, in
agreement with Respondent, found that Respondent
had not violated Section 8(a)(3) and (1) of the Act by
laying off Quartaro and those junior to him. His
conclusion was based primarily on Respondent's
defense of economic justification. Respondent assert-
ed that its decision to discontinue interlining, an
unprofitable portion of its business, was made in
September 1971 even though the date for implemen-
tation was not decided on until October 22, 1971, the
actual day of implementation. Respondent contend-
ed that had it waited longer and not discontinued
interlining and laid off the employees on October 22,
it would have had to pay them for Thanksgiving if
there were a recall within 30 days, in accordance with
the contract provision noted above. Respondent
further contended that though it told its customers
that the reason for discontinuance of interlining was
that it was having a "labor problem," the true reason,
which it desired to withhold from its customers for
fear of problems with the Interstate Commerce
Commission, was economics, viz, declining work due
to loss of steel hauling and other freight. Finally.
Respondent also implied that because Quartaro
could have bumped one of the contract drivers after
60 days through seniority, and since Respondent
knew this and knew therefore that it could not get rid
of Quartaro via a layoff, the motivation must have
been economic. In accepting Respondent's economic
defense the Administrative Law Judge also noted
that other drivers were laid off after Quartaro and
4 The layoffs of these 18 drivers are not alleged by the General Counsel
to have been discriminatorily motivated
that Quartaro was recalled as soon as business
conditions warranted.
We find, however, that in reaching his conclusion
the Administrative Law Judge failed to fully analyze
certain relevant facts which convince us that the
layoffs were unlawfully motivated. The record
reveals, as noted above, that between the time of the
joint committee award on October 21, 1971, and the
ordered reinstatement of Quartaro, which was to
have been effective October 25, 1971, Respondent
quite hurriedly telephoned its customers on Friday,
October 22, 1971, and explained that it could no
longer receive incoming interlining shipments be-
cause it was having a labor problem. It then
proceeded to lay off Quartaro and seven drivers
junior to Quartaro.
While Respondent seeks to explain this conduct by
setting forth certain contract requirements which
might have made it liable for upcoming holiday pay
had it delayed any longer, we note that Respondent
waited until the very last moment to implement a
decision it made I month earlier. Also, during that
period it took no other steps to implement the earlier
decision. The only factor which intervened to cause
the rapid implementation of the interlining work
cessation was the grievance award.
We are not persuaded by Respondent's explana-
tion of the remark to its customers that it was having
a labor problem. Although the grievance award had
been made prior to the statement , Respondent
asserted that it was not telling its customers the truth
when it made the statement because it did not want
them to know that the true reason was economics.
Respondent, however, was embroiled in a labor
problem. Thus, the statement made by Respondent
to its customers, the hurried nature of the calls to
customers cancelling the interlining, the timing of the
layoff, and the fact that Quartaro was the most
senior of eight laid-off employees all lead us to
conclude that but for the successful prosecution of
the grievance by Quartaro there would have been no
layoff on October 22, 1971. We therefore find that by
laying off Quartaro and those junior to him Respon-
dent violated Section 8(a)(3) and (1) of the Act.5
2. In further agreement with Respondent, the
Administrative Law Judge found that certain re-
marks by Respondent's president to Oestreich and
Parker were not violative of Section 8(a)(1). He
found that they were not told Quartaro's grievance
caused their layoff, but rather that they merely were
being told they had been laid off because Quartaro
had picked up a passenger in violation of the
company rules and the union contract, and because
Quartaro had previously been involved in two costly
' Mrs Baird's Bakeries , Inc, 189 NLRB No 89
NORTHWEST DRAYAGE COMPANY 751
accidents. We disagree. The statements quoted above
clearly conveyed to the employees the fact that the
refusal to put Quartaro back to work pursuant to his
successful grievance was the reason for the layoff of
these men . As General Counsel contended , we find
these remarks violative of Section 8(a)(1) of the Act
because they tend to inhibit employee utilization of
the grievance machinery .6 Moreover , the statements
are a further indication of Respondent 's unlawful
motivation for the layoffs.
3. While finding that Respondent violated Sec-
tion 8(a)(3) and (1) of the Act when it laid off
William Johnston, the Administrative Law Judge
also found that Respondent did not independently
violate Section 8(a)(1) of the Act when its president
stated to Johnston on Johnston's return from the
layoff that he "was just kind of mad at seeing
Johnston at the grievance hearing and just laid
Johnston off for a couple of days." We find, in
agreement with General Counsel, that this constitut-
ed more than an apology by Walterscheid and was
not, contrary to the Administrative Law Judge's
finding, part and parcel of the layoff. It was, rather, a
veiled warning to Johnston that he might be laid off
again if he attended future grievance hearings. It
was, we therefore find, violative of Section 8(a)(1) of
the Act.
THE REMEDY
Having found that Respondent engaged in unfair
labor practices in addition to those found by the
Administrative Law Judge, we shall order Respon-
dent to cease and desist therefrom and take the
additional affirmative action necessary to effectuate
the purposes of the Act.
We have found, contrary to the Administrative
Law Judge, that Respondent laid off Philip Quartaro
and those junior to him without pay in reprisal for
Quartaro's filing of and successful prosecution of a
grievance. We shall therefore order Respondent to
make whole Philip Quartaro and those junior to him
for any loss of pay they may have suffered by paying
to them a sum of money equal to the amount they
normally would have earned as wages from the date
of the start of the disciplinary layoff to the date when
they would have been laid off for valid economic
reasons , computed in accordance with the formulas
set forth in F. W. Woolworth Company, 90 NLRB
289, and Isis Plumbing & Heating Co., 138 NLRB
716.
We have found, in agreement with the Administra-
tive Law Judge, that Respondent laid off William
Johnston without pay in reprisal for Johnston's
attendance at a grievance arbitration hearing. We
shall therefore order Respondent to make whole
William Johnston for any loss of pay he may have
suffered by paying him a sum of money equal to the
amount he normally would have earned as wages
from the date of the start of the disciplinary layoff to
the date of his reinstatement , computed in accord-
ance with the formulas set forth in F. W. Woolworth
and Isis Plumbing & Heating, supra.
The Board , on the basis of the foregoing facts and
the entire record , makes the following:
AMENDED CONCLUSIONS OF LAW
Substitute the following for the Administrative
Law Judge's Conclusions of Law 4 through 7.
4. By telling employees that they and other
employees had been laid off because another
employee had filed a grievance over being discharged
and was ordered reinstated by a grievance arbitration
board, Respondent had interfered with, restrained,
and coerced employees in the exercise of rights
guaranteed in Section 7 of the Act and thereby has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
5. By telling an employee that he had been laid
off because of his attendance at a grievance
arbitration hearing , Respondent has interfered with,
restrained , and coerced employees in the exercise of
the rights guaranteed in Section 7 of the Act and
thereby has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1)
of the Act.
6. By laying off Philip Quartaro and those junior
to him on October 22, 1971, without pay in reprisal
for Quartaro's filing and successful prosecution of a
grievance , Respondent discriminated against them in
their hire and tenure of employment and has
discouraged membership in a labor organization,
thereby engaging in unfair labor practices in viola-
tion of Section 8(a)(3) and (1) of the Act.
7. The unfair labor practices engaged in by
Respondent, as set forth in Conclusions of Law 3
through 6 above, affect commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Northwest Drayage Company, St. Louis, Missouri,
its officers , agents , successors, and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Highway and City
Freight Drivers, Dockmen and Helpers , Local Union
6 Cf. Collyer Insulated Wire, 192 NLRB No 150.
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No. 600, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, or any other labor organization, by
discriminating in any manner against employees in
regard to hire or tenure of employment or any term
or condition of employment.
(b) Laying off or taking any other action against an
employee because, as a representative of the Union
or any other union, he attends, or has attended,
hearings on grievances filed by any employees.
(c) Telling any employee that he has been laid off
because, as a representative of the Union or any
other union, he attended hearings on grievances filed
by any employees.
(d) Laying off or taking any other action against an
employee because of grievances he files or has filed
or grievances any other employee files or has filed.
(e) Telling any employee that he or any other
employee has been laid off because he or another
employee has filed a grievance.
(f) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights to self-organization, to form, join, or assist
labor organizations, to bargain collectively through
representatives of their own choosing, or to engage in
other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, as
guaranteed in Section 7 of the National Labor
Relations Act, as amended, or to refrain from any or
all such activities, except to the extent such right
might be affected by an agreement requiring mem-
bership in a labor organization as a condition of
employment in conformity with Section 8(a)(3) of the
Act.
2. Take the following affirmative action which, it
is found, will effectuate the policies of the National
Labor Relations Act, as amended:
(a) Make William Johnston, Philip Quartaro,
Robert Huddleston, Alfred L. Parker, William H.
Oestreich, Eugene L. Carroll, LeRoy Davis, Richard
E. Clayton, and James F. Mass whole, in the manner
set forth in the section of this decision entitled "The
Remedy," for any loss of earnings they may have
suffered by reason of the discriminations practiced
against them.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its premises in St. Louis, Missouri,
copies of the attached notice marked "Appendix." 7
Copies of said notice, on forms provided by the
Regional Director for Region 14, after being duly
signed by Respondent's representative, shall be
posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
7 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by Order
of the National Labor Relations Board " shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had the opportunity
to present their evidence, the National Labor
Relations Board has found that we violated the law
and has ordered us to post this notice, and we intend
to carry out the order of the Board and abide by the
following:
WE WILL NOT lay you off or take any other
action against you because, as a representative of
Local Union No. 600, International Brotherhood
of Teamsters, or any other union, you attend, or
have attended, hearings on grievances filed by
any employees.
WE WILL NOT tell any of you that you have
been laid off because, as a representative of Local
Union No. 600, International Brotherhood of
Teamsters, or any other union, you attended
hearings on grievances filed by any employees.
WE WILL NOT lay you off or take any other
action against you because of grievances you file
or have filed or grievances any other employee
files or has filed.
WE WILL NOT tell any of you that you or any
other employee has been laid off because you or
another employee has filed a grievance.
Because it has been decided that we laid off
William Johnston on October 22, 1971, because,
as a representative of Local Union No. 600,
International Brotherhood of Teamsters, he was
present at the hearing on the grievance filed by
Philip Quartaro, WE WILL pay William Johnston
for any wages he lost because we laid him off.
Because it has been decided that we laid off
Philip Quartaro, Robert Huddleston, Alfred L.
NORTHWEST DRAYAGE COMPANY 753
Parker, William H. Oestreich, Eugene L. Carroll,
LeRoy Davis, Richard E. Clayton, and James F.
Mass on October 22, 1971, because Philip
Quartaro filed and successfully prosecuted a
grievance, WE WILL pay the above-named individ-
uals for any wages they lost because we laid them
off.
WE WILL respect your right to help Local
Union No. 600, International Brotherhood of
Teamsters, or any other union , in any lawful way,
including matters related to grievances filed by
any employees. WE WILL also respect your right
not to help any union , except as required by law.
NORTHWEST DRAYAGE
COMPANY
(Employer)
Dated By
(Representative) (Title)
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, Room 448 , 210 North 12th Boule-
vard, St. Louis, Missouri 63101, Telephone
314-622-4167.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALVIN LIEBERMAN , Trial Examiner : The trial in this
proceeding , with all parties except the Charging Party
represented, was held before me in St. Louis , Missouri, on
March 6 and 7 , 1972, upon the General Counsel's
complaint dated December 23, 1971,1 and Respondent's
answer .2 In general , the issues litigated were whether
Respondent violated Section 8 (a)(1) and (3) of the
National Labor Relations Act, as amended (the Act).
Particularly , the principal questions for decision are as
follows:
1. Did Respondent , in violation of Section 8(a)(3) of
the Act, lay off Philip Quartaro and several employees
junior to him in seniority?
i The complaint was issued pursuant to a charge and an amended charge
filed, respectively , on October 29, and November 30, 1971, by Philip T.
Quartaro
2 During the trial the answer was amended to admit the layoffs alleged in
par. 6A, 7A. and 8A of the complaint . Also during the trial paragraph 5E of
the complaint was dismissed for failure of proof.
3 Issued simultaneously is a separate order correcting obvious errors in
the stenographic transcript of this proceeding. Included in this order are the
corrections sought by the General Counsel in a motion attached to his brief,
to which no opposition was filed
4 Although all the arguments of the parties and the authorities cited by
them , whether appearing in their briefs or made orally at the trial , may not
2. Did Respondent, in violation of Section 8(a)(3) of
the Act, lay off William Johnston?
3. Did Respondent violate Section 8(a)(1) of the Act by
telling employees that they had been laid off because
Quartaro had filed a grievance ; by telling employees that
because of the grievance Quartaro had filed he would
never be reinstated and that should he be the successful
bidder for a particular job that job would be abolished;
and by telling Johnston that he had been laid off because
he attended the hearing held to determine Quartaro's
grievance.
Upon the entire record,3 upon my observation of the
witnesses and their demeanor while testifying, and upon
careful consideration of the arguments made and the briefs
submitted ,4 I make the following:
FINDINGS OF FACT 5
1. JURISDICTION
Respondent , a Missouri corporation located in St . Louis,
Missouri, is a local and interstate motor carrier of freight.
During 1971, a representative period , Respondent 's revenue
derived from the interstate portion of its business exceeded
$50,000. Accordingly, I find that Respondent is engaged in
commerce within the meaning of the Act and that the
assertion of jurisdiction over this matter by the National
Labor Relations Board (the Board) is warranted. HPO
Service, Inc., 122 NLRB 394, 395.
II. THE LABOR ORGANIZATION INVOLVED
Local Union No. 600, International Brotherhood of
Teamsters (the Union)6 is a labor organization within the
meaning of Section 2(5) of the Act.
III. INTRODUCTION
Briefly, this case concerns itself with Respondent's layoff
of William Johnston, Philip Quartaro, and several employ-
ees junior to Quartaro in seniority after Quartaro filed, and
successfully prosecuted, a grievance. Also involved are
certain statements made by Respondent's president con-
cerning, principally, the reason for the layoffs.
The complaint alleges, and the General Counsel con-
tends, that the latter were independently violative of
Section 8(a)(1) of the Act.7 The complaint further alleges,
and the General Counsel contends, that Quartaro and the
employees junior to him were laid off by Respondent to
retaliate against Quartaro for having filed the grievance
be discussed in this Decision, each has been carefully weighed and
considered.
5 Respondent's motions made at the conclusion of the trial , upon which I
reserved decision , are disposed of in accordance with the findings and
conclusions set forth in this Decision
6 The Union's full designation is Highway and City Freight Drivers,
Dockmen and Helpers. Local Union No. 600. affiliated with International
Brotherhood of Teamsters . Chauffeurs, Warehousemen and Helpers of
America.
r The nature of these claimed violations appears above in my statement
of the principal questions for decision.
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that in this manner Respondent violated Section
8(a)(3) and (1).8 Finally , the complaint alleges, and the
General Counsel contends , that Respondent violated the
same sections of the Act by laying off Johnston because he
attended the hearing on Quartaro 's grievance as a
representative of the Union.
Respondent denies that its president made the state-
ments attributed to him in the complaint . Respondent's
position concerning the layoffs , as stated in its brief , is that
"none . . . were related to the Quartaro grievance and [all ]
resulted solely from economic factors."
IV. PRELIMINARY FINDINGS9
A. Respondent's Operations
1. The nature of Respondent's business and its
economic condition during the period covered by
the complaint
As already noted, Respondent is a local and interstate
freight trucker . Respondent 's interstate business is carried
on pursuant to a certificate issued by the Interstate
Commerce Commission authorizing it to operate as a short
line carrier between St . Louis and St. Louis County,
Missouri , and two counties in Illinois.
Steel is the principal product hauled by Respondent,
accounting for about 50 percent of its business. The
consignors of the steel hauled by Respondent are two steel
producers and a steel warehouser . The consignees are the
users of the steel manufactured by the producers or stored
in the warehouse.
As a hedge against an anticipated strike in the steel
industry in August 1971, steel users began to stockpile steel
early in the year. Although the strike did not occur, steel
users had large supplies of steel on hand at the time it was
believed that the strike would begin . For this reason
Respondent expected that its steel hauling business would
decrease after August 1971.
Unlike the anticipated strike , Respondent's expectations
concerning the diminution of its steel hauling business did
materialize. It became severe in November 1971 and
dropped even more during the next 2 months. Thus,
between August and November Respondent's steel hauling
was reduced by 34 percent , between August and December
the decrease was 53 percent , and between August 1971 and
January 1972 the decline was 59 percent.
Respondent 's steel hauling business began to improve in
mid-February 1972 and has continued to improve since
then . In this connection , as William Kennedy , Respon-
dent 's general manager , testified on March 7 , 1972, during
N in pertinent part this section provides
Sec 8(a) It shall be an unfair labor practice for an employer-
(1) to interfere with, restrain , or coerce employees in the exercise of
the rights guaranteed in section 7,
(3) by discrimination in regard to hire or tenure of employment
to encourage or discourage membership in any labor organization
Sec 7, insofar as relevant , states
Sec 7. Employees shall have the right to self-organization, to
form, loin, or assist labor organizations , to bargain collectively through
representatives of their own choosing, and to engage in other concerted
the 6 preceding days Respondent "hauled more steel that
[it] did in the entire month of December."
In addition to the sharp diminution in its steel hauling, as
described above, Respondent suffered a business setback
in another area . Before September 1971 Respondent
delivered furniture from a railway freight terminal to
warehouses and retail stores . On September 1, 1971, the
customer for whom Respondent did this work transferred
its patronage to another trucking concern.
A part of Respondent 's business consists of interlining
general freight with long line interstate carriers.iO In the
performance of this operation , a major portion of the
incoming interline freight was received by Respondent at
its terminal in St . Louis, placed on its dock, sorted,
reloaded on its trucks, and then delivered by Respondent
to the freight 's consignees . A small quantity of Respon-
dent's incoming interline freight consists of full trailer
loads consigned to a single location . Although in such
cases the trailers are received at Respondent's terminal,
they are not unloaded there , but hauled intact by
Respondent to their destination.
Respondent also interlines outgoing freight. This is
picked up by Respondent at the shipper' s premises and
brought directly to the terminal of the interlining carrier
without being handled at all at Respondent's dock.
Respondent 's costs in handling incoming interline freight
on its dock and then sorting and reloading it on its trucks
made this business unprofitable . Accordingly, in Septem-
ber 1971 Respondent decided to discontinue receiving
interline freight which had to be handled in this manner.
Implementing this decision , toward the end of October
1971 Respondent notified the carriers with which it
interlined freight that it would no longer accept such
incoming freight.
At or about the time Respondent stopped handling
incoming interline freight of the type just described it
acquired a new customer , Western Electric Company
(Western Electric). Although Respondent contemplated
moving large quantities of freight for Western Electric
right from the start, this did not eventuate until February
1972. In that month its revenue from Western Electric
exceeded $ 18,000, whereas in October 1971, when Respon-
dent began to handle Western Electric freight, its revenue
from this source was only $2,150. Respondent's business
with Western Electric is on the upswing and, as Kennedy,
Respondent 's general manager, testified, Respondent
"estimate[s] it will hit $20,000 a month."
Suggesting that it was not unprofitable for Respondent
to handle incoming interline freight on its dock, the
General Counsel argues that Respondent purposely gave
up doing it in order to justify laying off Philip Quartaro, a
activities for the purpose of collective bargaining or other mutual aid or
protection ..
e The purpose of these findings is to furnish a frame of reference within
which to consider the facts relating to respondent 's alleged unfair labor
practices and the conclusions to which they may give rise To the extent that
the contentions of the parties relate specifically to the findings made here
they will be treated here , although they , as well as the findings. may again
be considered in other contexts.
10 Interlining freight has been defined by the Board as "receiving freight
from interstate motor carriers for delivery to its destination, or delivering
freight to such carriers for further transportation " McAllister Transfer, Inc,
110 NLRB 1769, 1770.
NORTHWEST DRAYAGE COMPANY 755
driver, and drivers junior to him in seniority because
Quartaro filed, and successfully prosecuted, a grievance.ii
In the circumstances of this case I am not persuaded that
this argument has merit.12 It presupposes that an employer
who is in business to make a profit would discontinue a
profitable portion of its enterprise at a time when it was
suffering business reverses, as was Respondent here, solely
to retaliate against an employee for having filed a
grievance. It seems to me that the mere statement of such a
proposition carries with it its own refutation.
2. Respondent's contract accounts
Respondent has contracts with several of its customers
pursuant to which Respondent assigns specific trucks and
drivers to them. These customers are known as contract
accounts and pay Respondent a stated sum each day or
week, as the case may be, for the use of Respondent's
trucks and drivers.
Although a driver assigned to a contract account is paid
by Respondent and is listed on Respondent's seniority
roster, he seldom appears at Respondent's terminal. He
works "under the direction and control" of the contract
account and "acts like the delivery man for that compa-
ny "13
B. Respondent's Contract With the Union
For, several years Respondent and he Union have been
parties to a collective agreement. Pertinently, their contract
allows Respondent to discharge a driver who permits an
unauthorized passenger to ride on a truck operated by
Respondent. It provides for layoffs, but only in inverse
order of seniority. It establishes a grievance procedure
culminating in a form of arbitration by a joint committee
composed of representatives of the Union and of the
trucking industry.
Finally the contract contains the following additional
relevant provisions:
1. If any holiday falls within the 30-day period
following an employee's layoff due to lack of work and
such employee is also recalled to work during the same
30-day period but did not receive any holiday pay, then
in such cases he shall receive an extra day's pay for
each holiday in the week in which he returns to work.
... An employee who 'was' laid off because of lack of
work and is not recalled to work within the aforemen-
tioned 30-day period is not entitled to the extra pay
upon his return.
ri As I noted in the introductory portion of this Decision , the layoffs in
question are alleged to have been violative of Sec. 8(a)(3) of the Act.
12 To be sure, employers have been known to eliminate business
deliberately to make a discharge or a layoff for union activity "look good."
See, for example , Missouri Transit Company, et a!, 116 NLRB 587, 590,
enfd . 250 F.2d 261 (C.A. 8), and Zimnox Coal Co., 140 NLRB 1229, 1230,
1232, enfd. in this regard 336 F 2d 516 (C.A. 6). However, in both these
cases, upon which the General Counsel heavily relies in support of his
argument here under consideration , a strong clement of union animus was
present which is absent here . Thus, in Missouri Transit the employer stated
before discontinuing a shuttle -bus operation that he would discharge every
man who joined a union , that he would sell or lease the shuttle-bus
operation before he "would take the union in"; that, with reference to a
reduction in the number of runs on the shuttle-bus route , "as many as we
can get rid of down there will be less union fellows '; and that he had
2. All regular runs and positions are subject to
seniority and shall be posted for bids except "house" or
"contract" [runs]. Posting shall be at a conspicuous
place so that all eligible employees will receive notice of
the vacancy, run or position open for bid, and such
posting of bids shall be made not more than once each
calendar year unless mutually agreed upon, excepting
bids for new runs , new positions or vacancies. In the
event of dispute on the time, manner, and type of
situation for bidding, the matter shall be submitted to
the grievance procedure.
There shall be no requirement upon the Employer to
post "house" or "contract" accounts for bidding except
new positions and vacancies. However, with respect to
such accounts, drivers on those jobs shall remain on the
jobs they came to the company with or have gained by
vacancies or the increasing of trucks on such jobs after
having been duly posted for bids and the only time
company seniority shall apply is when an older
employee must be laid off because of lack of work in
any company job. The driver laid off can then bump a
"house" or "contract" account job provided the length
of time before regular seniority shall apply on such
accounts as the result of general layoff shall be 60
calendar days.
When working conditions improve permitting the
senior driver or drivers to return to their former job, the
account driver shall claim and return to his former job
and the bumped driver will return, also, to his former
job or to a position on the extra board according to his
seniority.
C. Quarlaro's Discharge
Philip Quartaro, whose layoff on October 25, 1971,14 is
alleged in the complaint as having been violative of Section
8(a)(3) of the Act,15 began to work for Respondent as a
truckdriver in 1966. Before October 1, Quartaro was
involved in two accidents while driving for Respondent
which required Respondent to pay $800 in damages. On
October 1 Quartaro was discharged for carrying an
unauthorized passenger in his truck.ie
D. Quartaro's Grievance
Quartaro filed a grievance protesting his discharge.
Upon the filing of the grievance, representatives of the
Union sought to persuade J. E. Walterscheid, Respon-
dent's president, to reinstate Quartaro. Refusing to do so,
transferred this shuttle-bus operation because the drivers were "for the
union." Similarly in Zimnox, the employer, a coal mine operator who had
subcontracted the trucking of his coal , told employees that he "could not
and would not go along with (a union]": and that , while he would rather
haul his coal with his own trucks , "if the Union went in" he would sell them.
i3 The findings appearing in this section are based on, and the
quotations appearing in the text are taken from , testimony given by J. E.
Walterscheid . Walterscheid was Respondent's president at almost all
material times . For this reason he will be referred to in that manner,
although he no longer held that office at the time of the trial.
i4 All dates hereinafter mentioned without stating a year fall within 1971.
is The complaint alleges that Quartaro was laid off on October 22.
However, the evidence establishes that the layoff occurred on October 25.
16 The complaint does not allege, nor does the General Counsel contend,
that Quartaro's discharge was violative of the Act.
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Walterscheid told the Union 's representatives that not only
had Quartaro committed an offense for which discharge
was allowed under Respondent 's contract with the Union,
but also reminded them of Quartaro 's two previous
accidents which had cost Respondent $800.
Having been unable to obtain Quartaro's reemployment
in this manner , the Union referred his grievance to the
joint committee for resolution . The matter was heard on
October 21 , 1971. The Union was represented at the
hearing by its business agent and by William Johnston, its
steward , who was also employed by Respondent as a
truckdriver . Walterscheid appeared for Respondent.
Walterscheid became angry when he saw Johnston.
Expressing his irritation , Walterscheid told Johnston that
he was "supposed to be driving a truck " instead of
attending the hearing.17
Notwithstanding the clear terms of the contract between
Respondent and the Union allowing the discharge of a
driver for permitting an unauthorized person to ride on a
truck , the joint committee , on October 21, directed
Respondent to reinstate Quartaro on the following Mon-
day, October 25, with full seniority, but without backpay.
V. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts Concerning Respondent 's Alleged
Violations of Section 8(a)(3) of the Act
1. The layoff of Quartaro and drivers junior to
him in seniority
On Friday, October 22, 1971, Respondent laid off seven
drivers junior to Quartaro in seniority . 18 When informed of
their layoffs , these drivers were told , as two testified, that
they were "on call" because of "lack of work" and that
"things ... looked bad right now." is
When Quartaro reported for work on Monday , October
25, in accordance with the directive of the joint committee
in upholding his grievance , he, too , was laid off. Like the
drivers junior to him who were placed "on call" the
previous Friday, Quartaro was informed , as he testified,
that "there was no work ." Quartaro was also informed, as
he further testified , that "there wasn't going to be any more
... dock receiving from other freight lines." 20
Quartaro complained to the Union about his layoff.
However, the Union refused to do anything about it. As
Quartaro stated in this connection , the Union 's business
agent told him, "Phil, we got the job back and that's it."
17 My findings here are based on a synthesis of the evidence given by
Johnston and Walterscheid The quotations appearing in the text are taken
from Johnston 's testimony
is The employees laid off on October 22 were , in inverse order of
seniority, Robert Huddleston , Alfred Parker , William Destreich , Eugene
Carroll , LeRoy Davis, James Maas, and Richard Clayton
19 The term "on call ," when used in the trucking industry, appears to be
a euphemism for the expression "laid off " As Parker , one of the drivers laid
off on October 22 , testified " it means that you didn ' t work unless
business developed that you were needed and they would call you."
20 This referred to Respondent 's decision to discontinue receiving
incoming interline freight at its dock because of excessive costs involved in
handling such freight
21 The General Counsel does not contend that the layoffs of these drivers
were violative of the Act William Johnston , although senior to Quartaro, is
not included in this group . Johnston 's several layoffs during the period in
question , which are alleged as u. fair labor practices, will be separately
In November Respondent invited its employees , includ-
ing Quartaro and the other drivers who had been laid off in
October , to bid for a vacant contract account job.
Quartaro and Parker did so, but the job was awarded to a
bidder with greater seniority.
As will appear, no driver laid off on October 22, nor
Quartaro , who was laid off on October 25, was recalled to
work within 60 days after his layoff . In accordance with
the collective agreement in effect between Respondent and
the Union , each, after the expiration of this period, could
have "bumped" a driver holding a contract account job.
None, however , exercised this right.
As I have found , Respondent's steel hauling picked up in
February 1972. Also in that month Respondent began to
move large quantities of freight for Western Electric.
Because of the foregoing increase in business Quartaro
and the drivers laid off on October 22, except one, were
recalled between February 11 , and March 6, 1972 . Between
their layoff and recall about 18 other drivers in Respon-
dent's employ, senior to Quartaro , were also on layoff
status, some for substantial periods of time.21
2. Johnston's layoffs
William Johnston , employed by Respondent as a
truckdriver , is the Union 's shop steward. He stands one
position above Quartaro on Respondent 's seniority roster.
As will be remembered, Johnston attended the hearing
on Quartaro 's grievance on October 21, 1971, as a
representative of the Union and was upbraided by J. E.
Walterscheid , Respondent's president, for doing so. At the
end of his shift the next day, October 22, Johnston was laid
off.
Johnston was recalled the following Wednesday, Octo-
ber 27. Upon his return to work on that day , Johnston
asked Walterscheid why he had been laid off. In response,
and by way of an apology , Walterscheid told Johnston that
he "was kind of mad" at seeing Johnston "at the grievance
hearing and . . . just laid [Johnston] off for a couple of
days." 22
Following his recall on October 27, Johnston worked
until October 29. He was on vacation from that day until
November 5 . Thereafter, like other drivers senior to
Quartaro , he was placed on layoff status for various
periods of time. Johnston 's layoffs since November 5
paralleled in sustantial measure the layoffs experienced by
other drivers senior to Quartaro.
considered below.
22 My findings concerning the conversation between Johnston and
Walteracheid regarding Johnston 's layoff are based upon , and the
quotations appearing in the text are taken from , testimony given by
Johnston , whose demeanor as a witness impressed me favorably A different
version of this conversation was given by Walterscheid . Acknowledging an
inability to remember "the exact words" which were uttered , Walterscheid
admitted apologizing to Johnston He testified , however, that the apology
was not for laying Johnston off, but "for getting on him for being at the
grievance hearing" instead of on his truck In my opinion, Walterscheid's
testimony as to this lacks the ring of truth . Had Walterscheid desired to
apologize to Johnston merely for "getting on him" because of his
attendance , on October 21. at the hearing on Quartaro's grievance , it seems
to me he would not have waited almost a week to do so Furthermore, in
crediting Johnston rather than Walterscheid I have also taken into account
Walterscheid 's conceded lack of memory concerning the content of his
apology
NORTHWEST DRAYAGE COMPANY 757
B. Contentions and Concluding Findings Concerning
Respondent's Alleged Violation of Section 8(a)(3) of
the Act
1. The layoff of Quartaro and drivers junior to
him in seniority
The General Counsel argues, on brief, that Respondent
laid off Philip Quartaro "in reprisal for his successful
prosecution of his discharge grievance . . . and that the
layoff of drivers junior to Quartaro was merely a cloak to
cover an unlawful manipulation of the seniority roster to
enable Respondent to lay off Quartaro for [his] protected
activity." Concluding the statement of his position, the
General Counsel asserts that in the foregoing manner
"Quartaro . . . and those junior to [him] in seniority were
all victims of unlawful 8(a)(3) conduct by Respondent."
Respondent contends that the layoffs of Quartaro and
the drivers junior to him were not related to Quartaro's
grievance, but were made necessary in order to minimize
losses caused by its business decline during the fall of 1971.
Respondent further contends that it chose the dates for the
layoffs in order to avoid having to pay the laid-off
employees for intervening holidays in the event of their
recall within 30 days.
Although guiding principles are not in doubt, "Section
8(a)(3) cases are difficult cases,"23 and the branch of the
instant case here under consideration is no exception.
Almost always present in such cases, and present here also,
are vexatious problems of motive and pretext.
Absent an unlawful motive an employer's judgment in
laying off an employee cannot be questioned. "Manage-
ment can discharge [or layoff an employee] for good cause,
or bad cause, or no cause at all. It has, as the master of its
own business affairs, complete freedom with but one
specific, definite qualification: it may not discharge [or lay
off an employee ] when the real motivating purpose is to do
that which Section 8(a)(3) forbids." N.L.R.B. v. McGahey,
et al., etc., 233 F.2d 406, 413 (C.A. 5).
Clearly, there was sufficient economic cause for the
October layoffs of Quartaro and the employees junior to
him. In September 1971 Respondent lost the customer for
whom it delivered furniture. In October Respondent
stopped receiving incoming freight. Steel hauling, which
constitutes the bulk of Respondent's business , began to
diminish, as Respondent contemplated it would, in
November.24
Regarding the date selected by Respondent for the
layoffs, Respondent's contract with the Union, as has been
pointed out, provides that laid-off employees who are
recalled within 30 days of their layoff are entitled to be
23 N L R B v. Atlanta Coca-Cola Bottling Company, Inc, 293 F 2d 300,
308 (C.A. 5)
21 As I have found in this respect, between August and November
Respondent's steel hauling business decreased by 34 percent, between
August and December the decrease was 53 percent, and between August
1971 and January 1972 the decline was 59 percent.
25 It will be remembered , in this connection , that the employees junior to
Quartaro were laid off on October 22 and that Quartaro was laid off on
October 25
26 N L R.B. v. Dant, et a!, etc, 207 F.2d 165, 167 (C.A 9).
27 Pointing to a layoff of Robert Miller and several employees junior to
him on May 26 and 27, 1971, the reason for which, the General Counsel
contends, was the filing of a grievance by Miller , he argues, on brief, that
paid for holidays falling within that period. Accordingly,
had Respondent waited until October 27 to effectuate the
layoffs25 and had recalled the laid-off employees on
November 26 it would have had to pay them for
Thanksgiving Day, which in 1971 fell on November 25.
Similarly, if Respondent had delayed longer in making the
layoffs it might have had to pay the laid-off employees for
Christmas Day and New Year's Day. Understandably,
being faced with a diminution of business Respondent was
desirous of avoiding this additional expense.
I find, therefore, that the reasons advanced by Respon-
dent for laying off Quartaro and the employees junior to
him, unlike the explanation for an alleged discriminatory
discharge asserted by an employer in another case,26 do
not "[fail] to stand under scrutiny." However, the existence
of these economic bases for the layoffs do not end the
inquiry. What must further be determined is whether they
were seized upon by Respondent as a pretext to penalize
Quartaro for having exercised the protected right of
bringing a grievance against Respondent, as the General
Counsel contends. If this is so, it follows that the layoffs
were violative of the Act.
Suspicious, in this regard, is the fact that the layoffs of
the drivers junior to Quartaro were ordered by Respondent
on the day following the issuance of the award determining
Quartaro's grievance and the further fact that Quartaro
was laid off on the day on which he was to have been put
back to work in accordance with the award 27 This
suspicion, however, is outweighed not only by the evidence
lending support to Respondent's claim of economic
justification for the layoffs but also by two additional
factors, likewise established by the evidence.
The first is that while Quartaro and the drivers junior to
him were on layoff status employees senior to Quartaro
were also laid off for substantial periods of time.28 The
second is that as soon as warranted by respondent's
business conditions Quartaro and other employees who
were laid off in October were recalled.
In view of the foregoing, a finding that Respondent
relied on its poor economic situation as a pretext to lay off
Quartaro and employees junior to him in reprisal for
Quartaro's having filed a grievance would have to be based
only on the suspicious circumstances arising from the
coincidence in time between the grievance and the layoffs.
"However, evidence that creates only a suspicion [of a
violative layoff ] is not sufficient evidence upon which to
base a finding of a violation of Section 8(a)(3)." Bogart
Industries, Inc., 196 NLRB No. 1.
Accordingly, upon consideration of the entire record, I
conclude that the General Counsel has not established that
Respondent "was willing and able to use the seniority roster as its vehicle
for reprisals against those who filed grievances ...:. However, this
argument is not supported by the evidence . Although the layoffs in question
occurred in May , all witnesses who testified on this subject stated that
Miller filed his grievance in June . While it is possible that they were
mistaken as to the date of the grievance, there is nothing but conjecture to
establish that it was filed before the layoffs . Further , in this regard, the
record shows that Miller filed a grievance on July 13, 1971, and that neither
he. nor any employee junior to him, was laid off on any subsequent
proximate date
28 As I have already noted, the General Counsel does not contend that
these layoffs were violative of the Act.
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the layoffs of Quartaro and the employees junior to him
were violative of the Act. I shall, therefore, recommend
that paragraphs 7, 8, and the relating portions of
paragraphs 9, 10, and 11 of the complaint be dismissed.
2. Johnston's layoffs
The General Counsel's position, as stated in his brief, is
that "Johnston's . . . layoffs from ... October to .. .
February 1972, were caused or occasioned by .. .
Johnston's protected Union activity in assisting and
representing Quartaro" in connection with his grievance.
As appears below, I agree with the General Counsel only
with respect to Johnston's layoff on October 22, 1971.
For the reasons set forth in the previous section of this
Decision , it is my conclusion that Johnston 's several
layoffs following his vacation in November were based
solely on economic considerations. They were, therefore,
not violative of the Act.
However, I reach a different result with regard to the 2-
day layoff Johnston suffered in October. Although
economic considerations might have been a factor in this
layoff,29 it is my opinion that another factor, violative of
the Act, also played a part.
Thus, as I have found, Johnston, the Union's steward,
was present as a representative of the Union at its
presentation of Quartaro's grievance to the joint commit-
tee. On the following day, Friday, October 22, he was laid
off. Upon Johnston's return to work on October 27, J. E.
Walterscheid , Respondent 's president , told him , in essence,
that he had been laid off because he attended the grievance
hearing.
Discharging an employee, the Board has held, "because
he participated in the presentation of [a] grievance [relating
to another employee], clearly a protected activity, [is]
violative of Section 8(a)(3) of the Act." Thor Power Tool
Company, 148 NLRB 1379, 1381, enfd. 351 F.2d 584 (C.A.
7). That Respondent 's adverse business conditions might
also have figured in Johnston's layoff on October 22 is
irrelevant. "[T]he rule is well established that although
ample valid grounds may exist for the discharge of an
employee, that discharge will violate Section 8(a)(3) if it
was in fact motivated, even partially, by the employee's
[protected] activity." N.L.R.B. v. Pembeck Oil Corporation,
404 F.2d 105, 109 (C.A. 2), remanded on other grounds 395
U.S. 828.30
Accordingly, I conclude that Respondent violated
Section 8(a)(3) and (1) of the Act by laying Johnston off on
October 22 because he was present as a representative of
the Union at its formal presentation of Quartaro's
grievance to the joint committee.
One further issue remains concerning Johnston 's layoff
on October 22. That is whether, as the complaint alleges
zs Respondent contends that it was the only factor
30 Thor and Pembeck talk in terms of discharge However , I perceive no
analytical difference , insofar as Sec. 8(a)(3) of the Act is concerned, between
a discharge and a layoff
3i City Yellow Cab Company, 144 NLRB 994, 1000, enfd 344 F 2d 575
(C A. 6)
32 Had the employees, in fact , been told by Respondent's president that
the grievance filed by Quartaro was the cause of their layoff , Respondent
would, of course, have violated Sec 8(axl) of the Act
33 If this, instead of Respondent's economic condition, was the reason
and the General Counsel contends, Respondent independ-
ently violated Section 8(a)(1) of the Act when Walter-
scheid , its president , stated to Johnston that his layoff
resulted from his presence at the hearing on Quartaro's
grievance.
I have found that Walterscheid did make the statement
complained of to Johnston . It seems to me, however , that it
was not distinct from, but was part and parcel of, 'the
layoff.
By laying off Johnston because of his protected activity
in attending the Quartaro grievance proceeding , Respon-
dent restrained and coerced him "in the exercise of [a
right] guaranteed in section 7" of the Act. Thereby,
Respondent violated Section 8(axl) as well as Section
8(a)(3),31 and I have already so concluded . But, as
Walterscheid 's statement to Johnston concerning the
reason for the layoff was inseparable , in my opinion, from
the layoff, I cannot find that it constituted independent
conduct violative of Section 8(a)(I). Cf. Furniture Designs,
Inc., 160 NLRB 1576, 1580. I shall, therefore, recommend
that paragraph 5(c) and the relating portions of paragraphs
9 and I I of the complaint be dismissed.
C. Facts, Contentions, and Conclusions Concerning
Respondent's Other Alleged Independent Violations of
Section 8(a)(1) of the Act
As stated at the outset of this Decision , the complaint
sets forth , and the General Counsel asserts , that Respon-
dent independently violated Section 8(a)(1) of the Act by
statements attributed to J. E. Walterscheid , its president. In
this regard, Walterscheid is alleged to have told employees
that they had been laid off because Quartaro had filed a
grievance; that because he filed a grievance Quartaro
would never be reinstated; and that because of his
grievance, should Quartaro be the successful bidder for a
contract account job, the job would be abolished . As will
be seen , these allegations are not supported by the proof.
The evidence shows that in conversations with two
employees junior to Quartaro in seniority concerning their
layoff on October 22, 1971, Walterscheid did not tell them
that they had been laid off because of the grievance filed
by Quartaro.32 Rather , he told them that they had been
laid off because Quartaro picked up a passenger and had
previously been involved in two costly accidents.33 Thus,
on October 26 Walterscheid stated to William Oestreich
that he had been laid off on October 22 "because
[Quartaro] had somebody in the truck with him and . . . if
he had a wreck it would cost everybody's job including
[Walterscheid's ]."
Similarly , in a conversation with Alfred Parker, who had
also been laid off on October 22, Walterscheid said that
because Quartaro had picked up a passenger "and [his]
for Quartaro's having been laid off after the point committee sustained his
grievance protesting his discharge. it would still not have been an unfair
labor practice because it would have had no relationship to a "motivating
purpose [forbidden ] by Section 8(a)(3) " N L R B v McGahey, et al, etc,
233 F 2d 406, 413 (C A. 5) By the same token, if Respondent had laid off
the employees junior to Quartaro in order to avoid a dispute with the Union
concerning a layoff out of senionty. as might have been the case had it laid
off only Quartaro for this reason , the layoffs of thejunior employees would
likewise not have been violative of the Act
NORTHWEST DRAYAGE COMPANY 759
two previous [accidents had cost ] the company $800, they
had no alternative but to get rid of [the ] men."
Walterscheid also told Parker at that time that "he hated
... to see [the ] men get laid off , but . . . he had to protect
the interest of the company." 34
As set forth above , it is also alleged in the complaint that
Walterscheid , Respondent's president, informed an em-
ployee that Quartaro would never be reinstated because he
had filed a grievance and that, for the same reason , should
he bid successfully for a contract account job the position
would be abolished 35 These , too, have no evidentiary
foundation.
Concerning the former , William Johnston , the Union's
steward , testified that on a few occasions after the joint
committee ordered Quartaro's reinstatement following his
discharge Walterscheid "said he wasn ' t going to put
[Quartaro ] back to work ." Johnston specifically stated,
however, that Walterscheid did not say "why he wouldn't
reinstate . . . Quartaro."
Regarding the abolition of the contract account job
should Quartaro be the successful bidder , Johnston
testified that Walterscheid told him that if Respondent
became obliged to award the position to Quartaro
Respondent , would "just have to ' give this job up." Here,
again , Walterscheid gave no reason for Respondent's
having to "give [the] job up," had Quartaro become
entitled to it.
Walterscheid , having given no reason for saying that
Quartaro would be disadvantaged in the respects just
described , an inference could be drawn that his undis-
closed reason was one falling within the proscriptions of
Section 8(a)(1) of the Act . However, it is also inferable, in
view of Walterscheid 's earlier statements to Oestreich and
Parker , that Walterscheid had in mind Quartaro's acci-
dents and his having picked up a passenger.
Given two equally valid inferences , one innocent and the
other unlawful , the former should be given preference over
the latter . Cf. N.L.R.B. v. McGahey, et al., etc., 233 F.2d
406, 413 (C.A. 5). Drawing the inference of innocence, I
find that Walterscheid 's statements to Johnston, here
under consideration , did not trench upon employees' rights
guaranteed by Section 7 of the Act and, hence , were not
violative of Section 8(a)(1).
Accordingly , upon consideration of the entire record, I
conclude that the General Counsel has not established that
Respondent independently violated Section 8(a)(1) of the
Act in the manner alleged . I shall, therefore , recommend
that paragraph 5 and the relating portions of paragraphs 9
and 11 of the complaint be dismissed.
VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Respondent's unfair labor practices, as found above,
occurring in connection with its operations set forth in
section I, above, have a close, intimate, and substantial
34 The quotations appearing in this, and the previous, paragraph are
taken from testimony given by Oestreich and Parker.
31 It will be recalled regarding this that in November 1971 Respondent
invited all employees, including Quartaro who was then on layoff status., to
relationship 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.
VII. THE REMEDY
Having found that Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act, my recommended Order will require Respondent
to cease and desist therefrom and to take such affirmative
action as will effectuate the policies of the Act. In this
connection , as William Johnston was recalled to work on
October 27, 1971, after his violative layoff on October 22,
Respondent will be required only to make him whole for
loss of earnings he may have suffered by reason of the
discrimination practiced against him . Any backpay found
to be due to Johnston shall include interest in the amount
and manner provided for in Isis Plumbing & Heating Co.,
138 NLRB 716.
Because unfair labor practices resulting in the depriva-
tion of employment , as is the situation here, go "to the very
heart of the Act," 36 broad cease-and-desist provisions will
be included in my recommended Order.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By laying off William Johnston on October 22, 1971,
because he was present as a representative of the Union at
its formal presentation of the grievance filed by Philip
Quartaro to the joint committee and by informing him that
this was the reason for his layoff, thereby discouraging
membership in the Union, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
4. Respondent did not engage in any unfair labor
practices independently falling within the meaning of
Section 8(a)(1) of the Act.
5. Respondent did not engage in unfair labor practices
within the meaning of Section 8(a)(3) or (1) of the Act by
laying off employees junior to Philip Quartaro on October
22, 1971.
6. Respondent did not engage in unfair labor practices
within the meaning of Section 8(a)(3) or (1) of the Act by
laying off Philip Quartaro on October 25, 1971.
7. The unfair labor practices engaged in by respondent
as set forth in Conclusion of Law 3, above, affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
[Recommended Order omitted from publication.]
bid for a vacant contract accountjob . Although Quartaro submitted a bid,
thejob was awarded to a bidder with greater seniority.
16 N.L R B v. Entwistle Manufacturing Company, 120 F.2d 532, 536 (C.A.
4)