Tidewater Express Lines, Inc.

National Labor Relations Board - Board Decisions

Jun 13, 1963

142 N.L.R.B. 1111 (N.L.R.B. 1963)

TIDEWATER EXPRESS LINES, INC.
course of their employment to use, manufacture, process, transport, or other-
wise handle or work on any goods, articles, materials, or commodities or to
perform services, or threaten, restrain, or coerce W. R. Aldrich & Company
or any other employer or person engaged in commerce or in an industry
affecting commerce, where an object in either case is to force or require any
employer or person to cease doing business with Plauche Electric, Inc.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, LocAL 861,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, T-6024
Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana, 70113,
Telephone No. 529-2411, if they have any question concerning this notice or com-
pliance with its provisions.
Tidewater Express Lines, Inc. and Freight Drivers and Helpers
Local Union No. 557, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America.
Case No. 5-CA-2132. Jwne 13, 1963
DECISION AND ORDER
On March 1, 1963, Trial Examiner Thomas F. Maher issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Intermediate Report. The
Trial Examiner also found that Respondent had not engaged in cer-
tain other unfair labor practices and recommended that the complaint
be dismissed with respect to such allegations. Thereafter, the Gen-
eral Counsel and the Union filed exceptions to the Intermediate Report
and supporting briefs, and the Respondent filed a reply brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers 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 entire
record in this case, including the Intermediate Report, the exceptions,
and the briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the following
modifications :
The Trial Examiner found Respondent did not engage in discrimi-
natory conduct in violation of Section 8(a) (1) and (3) of the Act
when it locked out its employees on March 14, 1962, in a reasonable
142 NLRB No. 122.
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
effort to protect Respondent and its customers from the undue hard-
ship of a threatened strike. We agree with the Trial Examiner that
the lockout was not motivated by union animus and was not a maneu-
ver to force acceptance of Respondent's contract proposal. That
Respondent's purpose was to prevent the undue damage that would
result from a strike is clear from Respondent's conduct. Thus, the
record shows that through its amended embargo Respondent ceased
only that part of its operations which would be adversely affected by
a "quickie" strike, namely shipments of less than 5,000 pounds, which,
according to Respondent President Wilson's uncontradicted testi-
mony, required platform handling and would be tied up if Respond-
ent's employees suddenly quit work without adequate notice to the
Respondent. When Wilson, who reasonably believed that the union
president, George Willinger, had on March 9, 1962, given him notice
that a strike would occur on March 14, 1962,1 was told on the latter
date by Union Steward Vernon Betz and Assistant Business Agent
William Burns that the employees were not on strike, Wilson on that
day and again on March 19 and April 18, 1962, expressed his willing-
ness to completely withdraw the embargo if the Union gave him a
written assurance of a 48-hour notice before striking. The Union
refused to furnish such an assurance and stated that employees would
not work for Respondent because they did not know what wage rates
they would be getting.' Subsequent to March 14, Wilson did secure
a number of shipments of 5,000 pounds and some of the employees
accepted Respondent's offer of work despite the Union's position as
stated on March 14. In view of the foregoing, we find that Respond-
ent did not use the limited embargo as a weapon to enforce its bargain-
ing position, and that Respondent's action in eliminating shipments
of less than 5,000 pounds and seeking and securing shipments above
that amount stemmed from Respondent's justified fear that a sudden
strike would result in undue hardship to Respondent and its customers.
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner.
^ As indicated in the Intermediate Report, Respondent 's employees on March 3, 1962,
voted to reject Respondent 's contract proposal and to strike when instructed to do so
by officials of the Union . The Trial Examiner finds these votes were known to Respond-
ent in view of the fact that its operations were small and its employees few in number.
We do not pass on this finding of Respondent 's knowledge but adopt it pro forma because
of the absence of any exceptions thereto
2 In this connection, Wilson testified without contradiction that Burns told him on
March 19, "The reason we're not working is that they [the employees] don't know how
much you're going to pay them." According to Burns' uncontradicted testimony, em-
ployee Ed Biddinger stated without disavowal from the union officials present, "If we
don't have no contract , then I don 't see no reason for working , because we don't know
what we're working or what we 're going to be paid or anything ." Wilson testified that
he replied , "They' ll be paid what they've been getting for the last year or so."
TIDEWATER EXPRESS LINES, INC. 1113
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed on April 2, 1962, by Freight Drivers and Helpers Local No. 557,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers,
hereinafter referred to as the Union, the Regional Director for the Fifth Region
of the National Labor Relations Board, herein called the Board, issued a complaint
on behalf of the General Counsel of the Board against Tidewater Express Lines, Inc.,
Respondent herein, on August 29, 1962, alleging violations of Section 8(a) (1), (3),
and (5) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151,
et seq.), herein called the Act. In its duly filed answer Respondent, while admitting
certain allegations of the complaint, denied and commisison of any unfair labor
practice.
Pursuant to notice a hearing was held before Trial Examiner Thomas F. Maher
at Baltimore, Maryland, on October 10 and 18, 1962, and upon General Counsel's
motion to reopen for the purpose of taking additional testimony, and over Respond-
ent's objections, further hearing was held on November 27, 1962. All parties were
represented and were afforded full opportunity to be heard, to introduce relevant
evidence, to present oral argument, and to file briefs with me. Briefs were filed by
both the Respondent and the General Counsel.
Upon consideration of the entire record in this case, including the briefs of the
parties, and upon my observation of each of the witnesses testifying before me,'
I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT
Tidewater Express Lines, Inc., Respondent herein, is a Maryland corporation with
its principal place of business in Baltimore, Maryland, where it is engaged in the
hauling of freight by motor carrier within the State of Maryland and to and from
other States of the United States as a common carrier under license from the Inter-
state Commerce Commission. Respondent, in the course of the foregoing operations,
annually derives in excess of $50,000 for its services from interstate hauling. The
parties admit the foregoing facts and, as conceded by Respondent, I find and con-
clude that it is engaged in interstate commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is conceded to be a labor organization within the meaning of the Act
and I so find and conclude.
II. THE ISSUES
1. Whether a work stoppage, as described herein, constituted a strike or a lockout.
2. Whether, if a lockout, it constituted a reasonable effort on the employer's part
to protect himself and his customers from the undue hardships of a threatened strike.
3. Whether an employer's bypassing of its employees' bargaining representative
constituted an unlawful refusal to bargain.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The nature of Respondent's operations
The Respondent's motor freight operations differed substantially from the usual
variety and it was this difference which created the problems resulting in this pro-
ceeding. Unlike most competing motor lines in the Baltimore area Respondent's
operations took several forms. It provided intrastate service entirely within the
State of Maryland, and some small amount of service entirely within the Common-
wealth of Virginia. In addition it performed a service of transporting connecting
i Unless specifically indicated to the contrary, any credibility evaluation I make of the
testimony of any witness appearing before me is based, at least in part, upon his de-
meanor as I observed it at the time the testimony was given. Cf Retail Clerks Interna-
tional Association, AFL-CIO, Local 219 (National Food Stores, Inc.), 134 NLRB 1680,
1682, and footnote 3; Bryan Brothers Packing Company, 129 NLRB 285. To the extent
that I Indicate that I do not rely upon or reject in part or entirely the testimony of any
given witness, it is my intent thereby to indicate that such part or whole of the testi-
mony , as the case may be, is discredited by me. Jackson Maintenance Corporation, 126
NLRB 115, 117, footnote 1. enfd. 283 F. 2d 569 (C A. 2).
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
line freight-that is, locally transported freight received from or destined to an out-
of-State carrier and requiring handling or transshipping at a Baltimore terminal,
either Respondent 's or the terminal of one of the connecting lines.
It was the intrastate service, of which there was a considerable amount, that created
the problems involved here. Respondent's local services were, for the most part,
directed into areas where no other motor lines operated. In such areas and under
such circumstances, and as an obvious protection of the shipping public in those areas,
Maryland law required that the services provided be regular and scheduled, and that
the schedule be filed with and enforced by the Public Service Commission. Thus
regular deliveries and pickups were insured in these areas regardless of the day-to-day
demands of the shipper and in the face of the possibility that vehicles might return
empty from a scheduled run.
A freight shipment originating in this manner would fall into one of two cate-
gories. It could be purely local, originating at and destined to a point within the
bounds of Respondent 's local routes . This is known as local freight and would
be handled wholly over Respondent's line. Or it could be "joint-line freight" which,
as previously described, would require transfer to or from other carriers at the
Baltimore or some other terminal.
Because of the peculiar character of Respondent 's local freight operations, re-
quiring as it did a scheduled service, the costs of maintaining it were necessarily
higher than unscheduled pickup and delivery. This, of course, is readily explainable
because Respondent's trucks were required to make the scheduled runs regardless
of the availability of shipments along the route. To maintain this service, there-
fore , and to avoid the loss of business because of excessive charges for it, it was
Respondent's position that its labor costs would have to be correspondingly lower
than those of carriers not held to such rigid schedule requirements. Moreover,
this differential had been recognized in Respondent 's longstanding relationship with
the Union, the contracts having provided for substantially lower rates of pay than
those given to over-the-road and local nonscheduled drivers.
B. Respondent 's relationship with the Union
Bargaining between Respondent and the Union began in 1947 and has continued
without incident or interruption throughout the period until the end of the term of
the 1958 agreement to which Respondent and the Union were signatory 2 and in
which, by addenda to an otherwise standard area agreement, provision had been
made to accommodate the agreed-upon wage rate structure to the peculiar nature
of Respondent's operations, as described above.
On its face the 1958 agreement stated its expiration as August 31, 1961. The
Respondent, however, contends that the agreement continues in force and effect until
formally renewed or replaced. It is the Union's position, on the other hand, that
the contract had expired and that the ensuing negotiations were properly directed to
the negotiations of a new contract.
Section V of the 1958 agreement states as follows with respect to termination:
This Agreement shall become effective as of 6 p.m., August 31, 1958, and
shall continue in full force and effect until 6 p.m., August 31, 1961. If changes
to any of the provisions herein are desired by either party hereto after August 31,
1961, then said party shall notify the other that such changes are desired by
giving not less than sixty days' written notice prior to August 31, 1961. Fail-
ing such notice, this Agreement shall automatically renew itself and continue
in full force and effect until 6 p.m., August 31, 1962.
In stated accordance with this provision the Union gave Respondent written notice
of its desire "to change, amend and revise the terms of said Agreement." This notice
was given on June 14, 1961, a date "not less than sixty days prior to August 31,
1961," being the period of time before which notice must be given in order to
forestall the agreement's automatic renewal and its continuance "in full force and
effect until 6 p m., August 31, 1962." [Emphasis supplied.] As neither the
agreement nor the conduct of the parties suggest allowable deviation from the
agreement's express terms in this respect, and as the terms of the agreement which
establish the means of achieving expiration are as clear as the Union's intent to
comply with them by its letter, I find and conclude that the Union's letter of
2 Respondent 's President Wilson testified without contradiction, however , that sometime
prior to 1947 a strike was called by the Union and, by virtue of its sudden Impact on
Respondent 's operations , resulted in the tying up of much freight at its terminal and the
consequent loss of many customers' accounts
TIDEWATER EXPRESS LINES, INC. 1115
notice dated June 14, 1961, had the precise effect of causing the agreement to
expire and that the agreement did in fact, and in accordance with its own terms,
expire on August 31, 1961. Upon the foregoing and upon the conceded testimony
that further negotiations had been fruitless, I find and conclude that no contact be-
tween the parties herein existed between August 31, 1961, the date of expiration of
the 1958 agreement, and November 27, 1962, the date on which this hearing closed,
which period of time constitutes that within which Respondent's alleged misconduct
occurred.3
C. The alleged discriminatory work stoppage
1. Negotiations and stalemate
During the period immediately following the Union's June 14, 1961, notification
of its desire to negotiate a new contract bargaining sessions were held directed to
an areawide agreement . Local 557 was represented, as was the Eastern Conference
of Teamsters and various employers and employer groups. No one appears to
have represented Respondent at these meetings although it is clear that James
Doherty, Respondent' s counsel in the instant proceedings, represented the Labor
Relations Council of Baltimore, Inc. Respondent, however, was never a member
of this nor any other multiemployer association, nor did it retain Attorney Doherty
until after the aforementioned bargaining meetings had been held and negotia-
tions concluded.
As a result of these meetings, held between August 21 and September 29, 1961,
a Master Agreement was negotiated on the latter date, entitled "Maryland-District
of Columbia Freight Council of the Eastern Conference of Teamsters City Pick-up
and Delivery Agreement," and covering the period from August 31, 1961, through
August 31, 1964. The Master Agreement was executed by representatives of the
Union and of various employers and employer associations but has never been
executed by Respondent, and there is no claim that Respondent is presently a party
to such an agreement.
Beginning on December 1, 1961, at the instance of Attorney Doherty, a number
of meetings were held between the Union and representatives of several employers
who had not yet accepted the Master Agreement,4 including Respondent. These
meetings, as appears from the stipulated correspondence, were devoted to a negotia-
tion of a workable arrangement between the Union and the employers, including
Respondent, who felt that peculiar circumstances justified deviations in their behalf
from the previously executed Master Agreement. In this respect it appears from
the correspondence that while the Union was willing to make some concessions
it was adamant as to the health, welfare, and pension payments and as to the wage
structure set forth in the Master Agreement. On this note a meeting followed on
February 26, 1962, between representatives of the complaining employers, includ-
ing Attorney Doherty and Respondent's President H. R. Wilson, and President
Hoffa, international president of the Teamsters, together with representatives of
Local 557. At this meeting, held in Hoffa's Washington office, the employers
presented their joint statement in which their inability to operate under the financial
burdens imposed by the Master Agreement was fully set forth. Considerable
discussion was had on this matter in which President Hoffa appears to have taken
a major part. At a concluding point in the discussion Company President Wilson,
after setting forth the particular nature of Respondent's operations, pointed out to
Hoffa that the Union's insistence upon the monetary terms of the Master Agreement
would have the effect of putting the Company out of business. Whereupon, ac-
cording to Wilson, Hoffa replied, "If you want to continue to operate, you are
going to have to sign this area agreement ; and if, as a result of signing that agree-
ment, you go out of business, I'm sorry." Whereupon Hoffa, after further discus-
3 The legal status of the 1958 agreement following the stated August 31 , 1961, expira-
tion date was the subject of litigation in the courts of the State of Maryland , 52 LRRM
2372. In this posture it is Respondent 's stated position that "until the appellate court
gives its decision, no findings can be made by the Trial Examiner on the existence or
non-existence of the contract " I am aware of no such restraint upon me in the per-
formance of my functions under the National Labor Relations Act, and with due respect
to such determinations as are made by the courts of the State of Maryland, I reiterate
my conclusion that the agreement in question expired at the time and in the manner
described in the text.
4 The identity of these other employers and references to them in subsequent corre-
spondence and meetings bear no relevance to any issue present here.
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sion, turned to Union President Willinger and told him that unless the operators
signed the agreement he was to "strike them." Following this statement several
private conversations were had between Willinger and the employers present in
which their unwillingness to make an immediate decision was noted. When
Willinger conveyed these sentiments to Hoffa he replied to the group, "Well it
probably means the thing has run along this long, you should at least give them
48 hours notice," meaning, it was explained at the hearing, 48 hours' notice of
intent to strike. On this note Hoffa concluded the meeting.
The foregoing account of Respondent's and the other employers' meeting with
President Hoffa is a synthesis of a stipulation respecting the meeting, of the state-
ment of employers' position which, it is stipulated, their representatives presented
to Hoffa, and of Respondent's President Wilson's undenied account of the meet-
ing, which testimony I credit although not relying generally herein upon Wilson's
testimony except when specifically noted. Moreover, it is to be noted that as
Union President Willinger, who it is stipulated attended the Hoffa meeting, was
present in the hearing room on the day Wilson gave his account of the meeting and
as the transcript of the Wilson testimony was available to Willinger prior to the
close of the hearing, I deem this failure to deny, explain, or elaborate upon Wilson's
account of the meeting to constitute acquiescence in its accuracy.
In further explanation of my partial reliance upon the testimony of Wilson as to
this and other incidents and upon the testimony of other witnesses to whom I may
refer hereafter it is to be noted that much of Wilson's testimony, for example,
dealt with his own impressions and understandings, that other of his testimony
was impossible of direct contradiction, that much of it was in a certain sense self-
serving, after the fact, and interested, and therefore subject to possible discount.
It does not, however, lose completely its probative force merely because of these
considerations. The witness is certainly the primary authority as to what is his state
of mind; and his affirmation in this respect is not to be ignored simply because it is
favorable to him and adverse to his opponent. Indeed in thus partially crediting
witnesses as I have herein, the observation of Judge Learned Hand seems most ap-
propriate: "It is no reason for refusing to accept everything a witness says, because
you do not believe all of it. Nothing is more common in all kinds of judicial deci-
sions than to believe some and not all." 5 Allowance too must, of course, be made
for the possibility of honest self-deception when a witness' interest may be affected
by his version as to what occurred. In such a situation, therefore, the most satis-
factory evidence becomes that which is not subject to the stigma of bias-namely,
circumstantial.
2. The cessation of work
Two days following the meeting with Hoffa and as a consequence of it Respondent,
on February 28, 1962, issued its Embargo Notice No. 40, placing an embargo upon
all traffic moving over its lines, excepting only freight moving to and from Virginia,
the stated reason being "a labor dispute." This embargo notice, sent to all connect-
ing truck lines, would have the effect, as of March 1, of suspending all shipping
over Respondent's lines except as noted.6 Later on the date of issuance, however,
and before the embargo went into effect, Union President Willinger called Wilson
and assured him, in line with International President Hoffa's suggestion of 2 days
earlier, "that he would give Tidewater 48 hours' notice, exclusive of Saturdays and
Sundays, before starting a strike. Relying on this promise, Tidewater resumed full
operations on March 1, 1962." At this time, it is to be noted, the International
had, as indicated by Hoffa's disposition of the problem, sanctioned a strike against
Respondent.?
Following the assurances given Respondent that adequate notice of a strike would
be given it, President Wilson, on March 1, lifted the embargo and full-scale opera-
tions continued.
Negotiations between Respondent and the Union resumed at a meeting on the
following day, March 2, during the course of which Tidewater submitted a contract
proposal to Local 557. On the day following, March 3, the Tidewater employees
rejected Respondent's proposal by a vote of 39 to 3 and by the same margin "voted
to strike when instructed to do so by Local 557," votes which I find and conclude
5 N.L R B. v. Universal Camera Corporation. 179 F. 2d 749, 754 (C A 2).
G President Wilson testified without contradiction that the notice of the embargo was
not sent to its customers, it being the Company's intention to notify them by telephone
or mail thereafter.
7 The foregoing are stipulated facts admitted in evidence as Joint Exhibit No. 1.
TIDEWATER EXPRESS LINES, INC. 1117
were known to Respondent's officials in view of the fact that its operations were
small and its employees few in number.8
The next meeting between the parties occurred on Friday, March 9. Wilson
represented Respondent and the Union was represented by Willinger, Secretary-
Treasurer Kohne, Union Steward Betz, and Assistant Business Agent Burns. These
union officials, called as witnesses for the General Counsel, were singularly inarti-
culate in describing what occurred at this meeting-a meeting which I find to be
crucial to the issues herein. Consequently I rely upon the account supplied by
Respondent's President Wilson viewed in the light of all the attendant circumstances.
Specifically I credit his account of the March 9 meeting, the telephone call which
followed it, and his stated understanding of what transpired. In so doing I include
the following factors: (1) His was the only reasonably coherent account given
without hedging; (2) it suggests the temper of the meeting-a suggestion borne out
by the reticence of the other participants when they testified; and (3) the other
participants were present to deny Wilson's account and were not called upon to do so.
At this March 9 meeting a discussion was had on the contract proposals sub-
mitted by Respondent which were rejected, the union representative insisting that
the only contract they would accept was the one originally suggested by International
President Hoffa. When it was apparent that no kind of agreement could be reached,
Willinger or Kohne told Wilson that they would have to know something right away
as to whether he was going to sign the agreement or not. And it was on this note of
finality, and with Hoffa's earlier strike ultimatum in mind (supra), that Wilson left
the meeting, agreeing to advise the union people of his decision later in the day.
Late in the afternoon of the same day, March 9, Wilson called Willinger, as
promised, and told him that it would be economically impossible for Respondent
to sign the agreement. This fact is the only one whose accuracy is unquestioned
among the welter of contradictions which infect the remaining account of this tele-
phone conversation. Suffice it to say the conversation took place-with Willinger
testifying that Wilson insisted on receiving his 48-hour strike notice despite Willinger's
efforts to continue negotiations, and that Wilson ended the conversation by saying,
"Well, I'll see you Wednesday." The reference to Wednesday was to March 14, the
day that would follow a 48-hour notice if it were to be given at that time .9 Wilson,
on the other hand, testified that he said nothing about the 48-hour notice, that
Willinger said nothing about continuing negotiations, and that it was Willinger who
concluded the conversation stating, "Well, we'll see you Wednesday," thus intending,
as Wilson understood him, to be giving Wilson the 48-hour notice originally dictated
by Hoffa and thereby informing Respondent of the Union's intent to strike on
Wednesday, March 14.
Upon consideration of all the circumstances surrounding this conversation, in-
cluding the meeting earlier in the day, as well as Hoffa's conceded direction to Will-
inger to give the Respondent a 48-hour strike notice if it refused to sign the area
agreement, I am disposed to reject Willinger's testimony that he proposed to keep
the men working, that he urged further negotiations, and that it was Wilson and not
he who said, "We'll see you Wednesday." And in thus rejecting Willinger's testi-
mony I accept as the more accurate Wilson's understanding that a strike notice was
given him. In summary, therefore, I conclude and find that late on Friday after-
noon, March 9, Willinger countered Wilson's refusal to sign the area agreement
by saying, "We'll see you Wednesday," and that Wilson understood this to constitute
the 48-hour strike notice which he had been anticipating since his earlier meeting
with Hoffa.1° And it is this understanding, I find, and the circumstances surround-
ing the meeting earlier in the day as well as the Hoffa meeting 2 weeks previously
that directly prompted the action which followed.
6 Wiese Plow Welding Co, Inc., 123 NLRB 616; Tru-Line Metal Products Company,
138 NLRB 964
fl I do not credit Kohne's attempted corroboration of what transpired in this telephone
conversation In the first place he could only hear half the conversation, Willinger's;
and secondly, he testified that during the conversation he was engaged at other duties.
10 Testimony of Union Steward Betz in answer to a question put to him by me lends
further substance to the sequence of events on Friday, March 9, as I have found them.
Thus Betz, when asked to explain his reference to an "order to close," stated:
Joseph Bianco, the Operations Manager for Tidewater, instructed me on Friday,
the 9th, that I was to prepare to close down the operation by Tuesday night, and
not to receive any freight on the following Monday, in preparation for that closing
as ordered by Mr. Wilson, the Manager
Mr. DOHERTY : When did this happen"
The WITNESS : 4:30-5:00.
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Consistent with his understanding that he had been given a strike notice effective
March 14 Wilson instructed General Manager Bianco to accept no freight ship-
ments that could not be cleared of Respondent's loading docks before Wednesday,
March 14. At the same time Respondent's operating personnel were instructed
to inform the connecting lines that the embargo had been reinstituted and to notify
shippers that a strike was imminent. The Company continued to handle any
shipment that could be delivered before March 14. Meanwhile the driving and
handling personnel were reduced to a total of 10 to 12 by order of Operating
Manager Bianco, who noted at one stage of this critical period that "It looks like
we're all about cleared up." 11
On Wednesday morning, March 14, when Wilson arrived at the terminal he noted
that no strike action was taking place nor were pickets in evidence. He did note
that Steward Betz and Business Agent Burns were seated in a car on the opposite
side of the street, and approaching the two he asked them why there were no
pickets. Burns replied that they were not on strike and never had been but that
they had been locked out.i2
Respondent's business has been carried on in limited fashion since March 14,
1962, steps having been taken by amended embargo to haul a limited type of freight,
by utilizing leased equipment for limited deliveries, and finally by disposing of a
considerable amount of its equipment to a newly incorporated truck line being
operated under Public Service Commission license by several of Respondent's former
managerial employees. Respondent, however, has consistently refused to sign the
area agreement insisted upon by the Union. For its part the Union appears to
have remained equally adamant at the time, and did not, until its letter of April 10,
1962, to Attorney Doherty, display any willingness to resume negotiations. The
negotiations which thereafter resumed terminated on the same note of mutual
adamance previously displayed, and the Union thereupon instituted a formal strike
with pickets stationed at Tidewater's Baltimore terminal.
3. Conclusions
It is General Counsel's contention, vigorously opposed by Respondent, that
Tidewater locked out its employees. Upon the facts as I have found them I am
persuaded to the General Counsel's position. The basic ingredient of any strike
by employees is their quitting of work; 13 and these employees did not quit. On
the contrary, by curtailing its shipping services and reducing its work force to a
bare minimum Respondent thereby effected not a quitting, but a lockout of its
employees.
Having thus concluded that the March 14 work stoppage at Respondent's opera-
tions was a lockout and not a strike, it next becomes necessary to review the cir-
cumstances under which it occurred if we are to properly assess its legal status.
In thus probing the underlying purpose of Respondent's action we have a choice of
three possibilities, namely that it could be (a) a display of union animus, (b) a
ploy in the bargaining then in progress, or (c) a defensive action in the face of
a real threat of strike.
Apart from my findings set forth above it is clear from a review of all the testi-
mony in the record, credited and otherwise, and I so find, that no action on Re-
spondent's part, then or for 2 months thereafter, disclosed any opposition to the
Union nor any attempt to undermine it as the chosen representative of its em-
ployees.14 Nor is any such animus claimed to have existed at this time.
"The foregoing account is a composite of the testimony of Wilson and Betz on the
subject. While I credit neither witness generally I do credit their accounts of these
particular incidents in view of their substantially mutual corroboration, and the absence
of any denial elsewhere in the record. I do not, however, credit Betz' testimony that he
was instructed by Bianco not to work after 5 p.m., May 13. Cf. footnote 10, supra.
12 This version of what transpired on March 14 is Wilson's testimony which I accept
over Burns' contrary testimony that the conversation took place 2 days later. In so
doing I reject Burns' insistence that he was out of town on the 14th. Betz, on the other
hand, concedes he was present at the terminal at the time in question but was not queried
as to the conversation that took place.
13 The Point Reyes, 110 F. 2d 608, 609-610 (C.A. 5) ; N.L.R.B. v. J. I. Case Company,
Bettendorf Works, 198 F. 2d 919 (C.A. 8).
14 This finding is not to be confused with Respondent's opposition to the Union's con-
tract demands. Certainly this cannot be equated with the stereotype variety of animus
toward a union which traditionally forms the basis for findings of discriminatory moti-
vation or bad faith. Cf. N.L.R.B. v. lnsaoronce Agents' International Union, 361 U.S. 477.
TIDEWATER EXPRESS LINES, INC. 1119
Similarly, it is evident that Respondent was not impelled to curtail its opera-
tions as a means of forcing acceptance of its contract in preference to the Hoffa
agreement. On the contrary, facts stipulated by the parties on this point make
it abundantly clear that if any work stoppage were to be used to enforce a bar-
gaining demand it would be at the instance of the Union, not Respondent. Thus,
"Mr. Hoffa asked George Willinger, president of Local 557, and the representatives
of the employers whether the employers had decided to sign [the agreement].
Willinger and the employers stated that the employers needed time to decide. Mr.
Hoffa told Mr. Willinger to give the employers 48 hours and then strike." Con-
sequently, it cannot be said that the lockout was in any manner intended to con-
stitute bargaining pressure so as to bring the work stoppage within the proscription
set forth in Anchorage Businessmen's Association, Drugstore Unit, 124 NLRB 662,
668-669, a case wherein an economic lockout designed to improve the bargain
is rejected and distinguished from economic lockouts designed to preserve the
economic integrity of the bargaining participant.is
By the process of elimination, therefore, having determined that the lockout
was grounded in neither antiunion animus nor bargaining maneuver, its actual
purpose emerges from a compound of all the circumstances considered above. This
lockout by Respondent was motivated, I find, by a reasonable fear on its part
that a strike would occur and that as a consequence of such a strike undue damage
would occur to it and to its customers. The elements of impending fear of
strike and of possible damage should, however, be considered separately.
That Respondent's belief that a strike was imminent is obvious. International
President Hoffa made strike action the alternative to accepting the Union's terms,
and Respondent's counterproposal of these terms was rejected not only by the Union
but by its own employees who voted to strike, facts of which I find Respondent's
officials were aware.16 Again on Friday, March 9, at a meeting with union officials
Respondent's President Wilson was again presented with the demand to accept the
Hoffa contract. While the record is singularly silent as to a strike alternative be-
ing given Respondent at this meeting, the prospects of a 48-hour strike notice had
been a subject of general discussion between Union and management ever since
the Hoffa meeting 2 weeks earlier. In this context, therefore, the finality that
everyone appears to have attached to Wilson's acceptance or rejection of the Hoffa
contract, and on his rejection of it, Union President Willinger's remark that he
would "see them Wednesday," and the Company's immediate action in preparing to
curtail operations, all make the imminence of a strike just as evident at that time
as it had been for the past 2 weeks. This, coupled with Wilson's understanding
that the "see you Wednesday" remark was the notice he had been expecting,
persuades me that Wilson had reasonable grounds for fear that a strike would be
called. To conclude otherwise would, I find, be a complete distortion and mis-
interpretation of everything that was done or said by representatives of both parties
since, and including, the meeting with Hoff a.
Nor is it significant to the conclusion I have reached with respect to the fear
of imminent strike that Union President Willinger did not intend a strike notice
when he said what he did. The criterion for assessing Respondent's fear of a
strike is obviously not what Willinger intended when he spoke, but rather what
President Wilson reasonably understood Willinger to mean when he spoke. I find
that Wilson's belief that a strike notice had been given was a reasonable under-
standing of Willinger's words regardless of their actual intended meaning.
Having thus concluded that Respondent entertained a reasonable fear of impend-
ing strike during the period in which it was curtailing its operations, it remains to
be determined whether the strike which it feared would, in fact, create an undue
hardship upon Respondent and its customers, as was claimed. At the outset it is
significant to note from a statement of President Wilson which I credit that on
an earlier occasion a strike had caused the Company and its customers undue hard-
ship. Thus Wilson testified that-
we had a strike once before by this same Local before we ever had a collective
bargaining agreement with them, and that strike was unexpected, there was
no advance warning, and as a result a lot of our customers' freight at that
15 See also Quaker State Oil Refining Corporation, 121 NLRB 334, enfd 270 F 2d 40
(CA. 3), cert. denied 361 U.S. 917; Building Contractors Association of Rockford, Inc,
138 NLRB 1405. But see r L.R.B v. Dalton Brick & Tile Corp., 301 F 2d 886 (CA. 5).
11 See Packard Bell Electronics Corporation , 130 NLRB 1122, 1123, wherein an employee
strike vote was found by the Board to have been a motivating factor for a legitimate
shutdown
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,time was tied up. And after the strike was over we had a very difficult time
getting a lot of customers back, because the customers were unreasonable to
the extent that they thought we should have had some forewarning about the
strike and let them know, and not let their freight get tied up.
This, Wilson testified, was in his mind in giving instructions not to get any freight
on the lines that could not be delivered before the strike deadline.
In the posture thus described we have before us, therefore, a curtailment of
work by an employer who had every reason to believe that 2 working days hence
a strike would be called which, if not properly anticipated, could have the effect
of clogging its terminal with undelivered freight and of creating a quantum of
customer dissatisfaction and defection, as it had on a previous occasion, that would
be ruinous to its operations.
Betts Cadillac Olds, Inc., 96 NLRB 268, is authority for the principle that an
employer may legitimately lock out employees where it is motivated by such serious
operating considerations. There it was stated by the Trial Examiner, with Board
adoption (at p. 286) :
An employer is not prohibited from taking reasonable measures, including
closing down his plant, where such measures are, under the circumstances,
necessary for the avoidance of economic loss or business disruption attendant
upon a strike. This right may, under some circumstances, embrace the curtail-
ment of operations before the precise moment the strike has occurred. The
pedestrian need not wait to be struck before leaping for the curb. The nature
of the measures taken, the objective, the timing, the reality of the strike threat,
the nature and extent of the anticipated disruption, and the degree of resultant
restriction on the effectiveness of the concerted activity, are all matters to be
weighed in determining the reasonableness under the circumstances, and the
ultimate legality, of the employer's action. Manifestly, where there is no real
strike threat, or when the Union has given reasonable assurances against a strike,
or assurances of notice sufficient to avoid disruption, there is no objective need
for protective measures.17
Superimposing the facts found in the instant case upon the framework of a per-
missive lockout described in Betts Cadillac, we have a number of common points of
reference. Thus, as in Betts, there is the effort to avoid the wrath of customers-
with unfinished cars there-with undelivered freight here. Similarly, there was the
suggestion there, as had occurred previously with this Respondent, that loss of cus-
tomers would result from a precipitate strike. And also, as there was uncertain
timing of the strike call in Betts, here too the union representatives, by their equiv-
ocation respecting the 48-hour strike notice in their dealings with Respondent and at
the hearing, created an atmosphere of uncertainty that served only to heighten the
tension of an impending strike. For these reasons, plus those which emerge from
a comparison of all the facts of the two cases, I would find that the holding in
Betts Cadillac is fully applicable here.18 Accordingly, I would find and conclude
that under the circumstances presented here the General Counsel has not sustained
the burden of proving that the work stoppage effected by Respondent was either
discriminatorily motivated or such as to deprive the action of its prudent and reason-
able character in the face of an imminent strike threat that carried with it the
probability of serious loss and inconvenience to it and its customers as well. I would
therefore recommend that so much of the complaint as alleges a violation of Section
8(a) (1) and ( 3) in this respect be dismissed.19
17 The Board has most recently reaffirmed this holding in Publishers' Association of
New York City, 139 NLRB 1092, footnote 15
Is See also Building Contractors Association of Rockford, Inc, 138 NLRB 1405, wherein
the Board, relying upon Betts Cadillac, found that contractors' lockout of their operating
engineers in the face of an imminent strike with resulting inconvenience, damage, and
loss was a reasonable action ; and Packard Bell Electronics Corporation, 130 NLRB 1122,
wherein the Board considered the reasonableness of an employer's curtailment of televi-
sion repair work in the face of imminent strike action, reaffirmed Betts Cadillac, stating
in terms applicable to Respondent's freight deliveries here, that "the Respondent had a
legitimate interest in taking the steps it did in order to make sure its customers' television
sets would not be tied up during the strike "
11 There is credible evidence in the record that between August and October 1982, even
while the hearing in this matter was in progress, steps were taken to transfer substantial
portions of Respondent 's assets, including rolling stock , to a corporation formed by indi-
viduals formerly part of Respondent's management This organization-Central Mary-
land Lines, Inc.-was licensed by the Maryland Public Service Commission to provide
TIDEWATER EXPRESS LINES, INC. 1121
D. The refusal to bargain
1. The unit appropriate for bargaining
It is agreed by the parties to this proceeding that all times relevant herein the
Union was the exclusive bargaining representative of all of Respondent's teamsters,
chauffeurs, warehousemen, helpers,20 and platform employees, excluding office
clericals, guards, watchmen, and supervisors as defined by statute.
2. Respondent's solicitation of employees
Following the March 14 work stoppage Respondent sought in the Circuit Court
of Baltimore to enjoin the Union from engaging in what it contended was a strike
in violation of no-strike provisions in the 1958 Agreement which Respondent claims
had renewed itself.21 A demurrer filed by the Union was sustained by the court
on May 4 and the complaint dismissed. The Respondent thereafter appealed the
court's dismissal but the Maryland Court of Appeals sustained the lower court
and its dismissal of the complaint.22 Thereafter on May 16 the Union commenced
picketing Respondent's premises and the picketing has continued to date. On the
following day, May 17, Respondent filed with the Regional Director a petition
for an election in Case No. 5-RM-453. The sequence of events relating to this
petition was not introduced into the record, but was alluded to without contradic-
tion by President Wilson and by employees Mullen and Clarence Wilson, whose
testimony I credit. During this same period, as has been previously noted, negotia-
tions between the Company and the Union continued but ultimately broke down
on the question of acceptance or rejection of the areawide or Hoffa agreement.
In the meantime Respondent appears to have shown more than a passing interest
in the success of the pending election petition and it coupled this interest with an
attempt to enlist employee acceptance of a pension plan that would satisfy their
personal requirements 23 As quite frankly explained by Respondent's President
Wilson, the Company during the period in May immediately following the institu-
tion of the picket lines and while fruitless negotiations were still in progress, was
conscious of the employees' desire to return to work. He concedes having spoken
to a number of employees, including Theodore VanLeeuwen, Louis Mullen, and
Clarence Wilson, telling them of his doubt that under its present leadership an
acceptable contract could not be reached with the Union.24 He then explained
to them that the election would be the only legal solution and he accordingly urged
their support in that direction.
During the course of Wilson's talk with his employees it was suggested to him
that if the Union were voted out as a result of the employee action these employees'
membership in the Union would be affected and they stood to lose their pension
rights until such time as they had rejoined the Union or selected a new union to
represent them and arrange satisfactory pension plans in their behalf. Wilson's
service on the scheduled routes previously served by Respondent, Respondent having
advised the Commission that it was relinquishing this portion of its business.
Coming as it does 6 months following the lockout complained of herein, and 4 months
after the Union posted strike pickets at Respondent's premises, I see no relation between
the formation of the new corporation and Respondent's dealings with respect to it on the
one hand, and the causes, purposes, and motivation of the aforementioned March 14
curtailment of operations, and I thereby reject the evidence at this time as irrelevant to
the issue of discriminatory lockout.
20 The category "garagemen" was removed from the unit description by stipulation of
the parties at the hearing.
21 See my findings to the contrary, supra and footnote 3.
22 Tidewater Express Lines, Inc. v. Freight Drivers and Helpers Local Union No. 557,
52 LRRM 2372.
=O It is to be noted that there is no allegation in the complaint respecting the solicita-
tion of employee votes against the Union. For this reason and as the matter was not
fully litigated at the hearing I make no finding with respect to the conduct.
At one point in his brief General Counsel does, nonetheless, appear to question Respond-
ent's overall motive as it is revealed by the filing of the RM petition. I am aware of no
legal holding, however, that would establish as either an unfair labor practice or evidence
of bad faith an employer's reliance, per so, upon the statutory privileges of Section
9(c) (1) (B) of the Act. Indeed to conclude otherwise would be tantamount to holding
that an employer filing an RM under the foregoing section of the Act did so at his peril.
24 This comports with the facts already established supra.
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
solution to this was to submit to the employees a substitute pension plan, drawn up
at his request by a local insurance underwriter, one that would satisfy the employee
requirements after they had rejected the Union as their bargaining agent. Van-
Leeuwen, Mullen, and Clarence Wilson each credibly testified that when President
Wilson visited them individually in their homes in mid-May he sought their support
in the adoption of such a pension plan to go into effect after the Union had been
voted out 25
3. Conclusions
It is well established that any attempt on the part of an employer, during the
course of bargaining with his employees' representative, to bypass that representa-
tive and deal directly with his employees does not meet with the good-faith bar-
gaining requirements of the Act.26 That is precisely what Respondent sought to
do by Wilson's visit to the homes of its employees urging them to accept its own
substitute pension arrangements.
The Union represented a majority; its recognition by the Respondent is conceded.
Respondent's future was precarious and the employees were restive. But for it
all, negotiations were in progress up to the very time of Respondent's solicitation
of the individual employees. Thus, however urgent either Respondent or its em-
ployees viewed the resumption of operations, urgency cannot be made to substitute
for a statutory obligation to bargain.
As we have already seen, 2 months previously Respondent had been forced to
curtail its operations to avoid the consequences to itself and its customers of an im-
pending strike, thus effecting a lockout of its employees. Respondent nonethe-
less admittedly continued to bargain with respect to the acceptance or rejection
of the Hoffa agreement up to the time when it solicited acceptance of its own
substitute pension plan. Whereas this continuing bargaining establishes a con-
tinuing good-faith effort to maintain the bargaining relationship despite Respond-
ent's own earlier curtailment of operations and the Union's consistent adamance, it
cannot, however, excuse the subsequent illegality that was inherent in Wilson's
visits of persuasion For by thus going behind the back of his employees' bar-
gaining agent and seeking to make what amounted to his own bargain, Wilson at
that time injected for the first time a note incompatible with the existing bargain-
ing relationship between his Company and the Union. Such conduct, unilateral
in nature and thus contrary to the statutory bargaining concept,27 constituted a
refusal to bargain in violation of Section 8(a)(5) of the Act and interferes with,
restrains, and coerces its employees in violation of Section 8(a)(1) and I find and
conclude accordingly.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section IV(D), above, occurring in con-
nection with its operations as described in section I and IV(A), 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 com-
merce and the free flow thereof.
VI. THE REMEDY
Having found that the Respondent engaged in a refusal to bargain in violation of
Section 8(a)(5) and (1) of the Act by bypassing its employees' chosen bargaining
representative and dealing directly with individual employees it will be recom-
mended that it cease and desist therefrom and in any like or related manner interfer-
ing with, restraining, or coercing its employees in the exercise of their statutory rights.
As I have specifically found, however, that Respondent and the Union herein have
continuously, albeit fruitlessly, engaged in negotiations directed to a renewal of the
expired 1961 agreement, I do not deem it appropriate to affirmatively order Respond-
ent to do what my findings herein disclose it is already doing. Instead, and to insure
uninterrupted bargaining, I shall recommend that Respondent be ordered to continue
bargaining with the Union and to post the appropriate notices of compliance with
the order herein.
25 Because of the pendency of charges of refusal to bargain In the Instant case the
Regional Director, in accordance with established Board precedent, dismissed the election
petition In Case No 5-RM-453 on August 22, 1962.
-`6 A E Nettleton Co, 108 NLRB 1670.
27 N L.R.B v. Benne Katz, 369 U.S. 736.
TIDEWATER EXPRESS LINES, INC. 1123
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law and upon
the entire record in the case it is recommended that Tidewater Express Lines, Inc.,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Freight Drivers and Helpers Local
Union No. 557, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America as the exclusive representative of all of Tidewater Express
Lines' teamsters, chauffeurs, warehousemen, helpers, and platform employees, ex-
cluding office clericals, guards, watchmen, and supervisors as defined in the Act, by
dealing directly and individually with its employees in matters related to wages,
hours, and conditions of employment.
(b) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of their right to self-organization, to form or to join or to
assist the aforesaid labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from any and
all such activities.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Upon request, continue to bargain collectively with the above-named labor
organization as the exclusive representative of all Respondent's employees in the
unit found appropriate and, if an understanding is reached, embody such understand-
ing in a signed agreement.
(b) Post at its Baltimore, Maryland, terminal copies of the attached notice
marked "Appendix." 28 Copies of said notice, to be furnished by the Regional Di-
rector for the Fifth Region, shall, after being duly signed by the Respondent, be
posted immediately upon receipt thereof, in conspicuous places, and be maintained
for a period of 60 consecutive days. Reasonable steps shall be taken to insure that
said notices are not altered, defaced, or covered by any other material.
(c) Notify said Regional Director, in writing, within 20 days from the receipt of
the Trial Examiner's Intermediate Report, what steps the Respondent has taken to
comply therewith.29
It is further recommended that so much of the complaint as alleges a violation of
Section 8 (a) (3) of the Act be dismissed.
28 In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice In the further event that the Board 's Order be enforced
by a decree of a United States Court of Appeals , the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
2" In the event thmt this Recommended Order be adopted by the Board, this provision
shall be modified to read : "Notify said Regional Director, in writing , within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT deal directly or individually with our employees in matters
relating to wages, hours, and conditions of employment.
WE WILL, upon request, continue to bargain with Freight Drivers and Help-
ers Local Union No. 557, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the exclusive representative of all
our teamsters, chauffeurs, warehousemen, helpers, and platform employees,
excluding office clericals, guards, watchmen , and supervisors as defined in the
Act, in the appropriate unit with respect to rates of pay, wages, hours of
employment , and all other conditions of employment , and if an understanding
is reached , embody such understanding in a signed agreement.
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
our employees in the exercise of the right to self-organization, to form labor
712-548-64-vol. 142-72
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organizations , to join or assist the above-named labor organization , to bargain
collectively through representatives of their own choosing , or to engage in con-
certed activities for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities.
All our employees are free to become , remain, or refrain from becoming or re-
maining members of any labor organization.
TIDEWATER EXPRESS LINES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Sixth
Floor, 707 North Calvert Street , Baltimore , Maryland , 21202 , Telephone No. 752-
8460 , Extension 2100, if they have any questions concerning this notice or compliance
with its provisions.
W. Ralston & Co., Inc., and Technical Tape Corporation and
Local 145, International Display and Miscellaneous Workers
Union, AFL-CIO. Case No. 22-CA-1408. June 13, 1963
DECISION AND ORDER
On April 16, 1963, Trial Examiner William J. Brown issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermedi-
ate Report. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report and the entire record in this case, including the exceptions
and brief, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner.
1 We agree with the Trial Examiner that the record supports the conclusion that the
Employer had knowledge of Zdep's union activities ; indeed, the record gives stronger sup-
port to this conclusion than was indicated by the Intermediate Report. Thus , in finding
that the Employer was aware of Zdep's support of the Union , we find the following facts
to be especially significant : ( 1) The small number of employees (47) at the plant;
(2) the fact that Zdep was active in the Union's drive to organize the plant ; ( 3) the
timing of the discharge, which took place the day after Slater, the plant manager , received
the Union 's representation petition ; ( 4) Zdep's strong defense of the Union's right to file
the petition when Slater criticized the action in Zdep's presence ; ( 5) Slater's statement
to Zdep when he discharged Zdep : "Let's see what the Union can do for you now" ; and
(6) the pretextual nature of the discharge . As to this last factor , although the Employer
claims that Zdep was fired because he failed to complete production reports, it is clear
from the record that the operators were primarily responsible for recording this informa-
142 NLRB No. 120.