Transport Drivers Corp.

National Labor Relations Board - Board Decisions

Feb 7, 1974

208 N.L.R.B. 960 (N.L.R.B. 1974)

960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Transport Drivers Corporation and John Arneson,
Attorney and Truck Drivers and Helpers Local No.
693, an affiliate of the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America , Party to the Contract. Case
3-CA-5325
February 7, 1974
DECISION AND ORDER
By MEMBERS FANNING, KENNEDY, AND
PENELLO
On November 12, 1973, Administrative Law Judge
Arnold Ordman issued the attached Decision in this
proceeding . Thereafter , General Counsel filed excep-
tions and a supporting brief , and Respondent filed
an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings ,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
1 The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544, enfd 188 F 2d 362 (C.A 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
ARNOLD ORDMAN , Administrative Law Judge: The
instant case began with separate complaints against
Transport Drivers Corporation , Respondent herein (Case
3-CA-5325), and against Local No. 693, here designated
as Party to the Contract (Case 3-CB-2113 ). The two
complaints were consolidated for hearing . Prior to the
opening of the hearing , however, all the matters presented
in Case 3-CB-2113 were amicably resolved by the parties
and that case was not presented for litigation. As to Case
3-CA-5325, which is presented for litigation here, it was
1 The only charge filed by David Wingood related to Case 3-CB-2113
against Local No 693 It was dated July 25, 1973, more than a month after
agreed to delete certain allegations in the complaint. The
effect of these actions, appropriately noted at the opening
of the hearing, was to limit the issues which remained in
controversy to: (1) the allegation that Respondent, Trans-
port Drivers Corporation, through its agent, Vice President
Emerton G. Bartlett, engaged in interrogation of its
employees concerning union matters in violation of Section
8(a)(1) of the National Labor Relations Act, as amended;
and (2) allegations that Respondent further violated
Section 8(a)(3), (4), and (1) of the Act by discharging its
employee, David Wingood, because of his union or
concerted activities and because he filed unfair labor
practice charges.
Timely charges relating to the matters here in controver-
sy were filed by John Arneson, attorney, on June 13 and
July 26, 1973.1 A complaint and an amended complaint,
based on these charges, issued on July 31 and August 6,
1973, respectively. Respondent, while admitting numerous
allegations of the complaints, denies that it engaged in
unfair labor practices. Hearing was conducted before me
in Syracuse, New York, on September 4 and 5, 1973.
Following the close of the hearing, briefs were received
from General Counsel and from Respondent on October 9,
1973.
Upon the entire record in this proceeding, upon my
observation of the witnesses, and after full consideration of
the briefs, I make the following:
FINDINGS AND CONCLUSIONS
1. JURISDICTION
Respondent is a New York corporation with its principal
office and a place of business in East Syracuse, New York,
where it is engaged in furnishing over-the-road truckdrivers
to various employers, including GAF Corporation. The
value of services performed by Respondent outside the
State of New York during the past year exceeded $50,000.
On these conceded facts Respondent admits, and I find,
that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
Respondent further admits, and I find, that Truck
Drivers and Helpers Local No. 317 and Truck Drivers and
Helpers Local No. 693, each an affiliate of Teamsters,
Chauffeurs, Warehousemen and Helpers of America and
respectively identified herein as Local 317 and Local 693,
are labor organizations within the meaning of Section 2(5)
of the Act.
Jurisdiction is properly asserted in this proceeding.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The legal issues here presented arise out of a factual
situation which is essentially undisputed. As noted,
Respondent, pursuant to a contract with GAF Corpora-
tion, furnished the latter with drivers for GAF's trucking
operations which were based in Syracuse, New York. For
his discharge.
208 NLRB No. 147
TRANSPORT DRIVERS CORP. 961
operational reasons, however, GAF decided to make
Binghamton , New York, the base of its trucking opera-
tions. The operational reasons were that the bulk of GAF's
operations becr me centered in Binghamton rather than in
Syracuse. Accordingly, GAF notified Respondent by letter
dated May 8. 1973, that as of early June 1973 GAF was
transferring all its equipment from Syracuse to Bingham-
ton and requested that Respondent make all necessary
arrangements for the transfer of drivers by June 1, 1973.
A problem for Respondent in this regard sprang from
the fact that its GAF drivers in Syracuse were covered by a
collective-bargaining agreement between Respondent and
Local 317. That agreement did not terminate until July 31,
1973. During the same period , however, Respondent also
had in effect a collective -bargaining agreement with Local
693 covering Respondent 's drivers who operated out of
Binghamton . Both agreements-many of their provisions
were identical-had lawful union -security clauses and
grievance and arbitration clauses.
Accordingly, upon receiving notice from GAF of its
impending transfer to Binghamton, Bartlett , vice president
and general manager of Respondent , promptly notified
Fred Maggio, president and business agent of Local 317,
the bargaining representative at Syracuse. Maggio prof-
fered no objection to the move . "It was understandable,"
he testified , "that the work was out of Binghamton." But
he insisted that the drivers represented by Local 317 be
protected. After appropriate consultation, Local 317, Local
693, and Respondent agreed that the GAF drivers attached
to Local 317 in Syracuse be given 30 days to decide
whether to transfer to Binghamton or to seek other
employment. It was further agreed that drivers who
transferred would retain their seniority.
Pursuant to this understanding Respondent during the
latter part of May held meetings with its GAF drivers to
inform them of the impending changes. In addition,
Respondent furnished each of its GAF drivers with a form
letter dated May 16 , 1973, which stated that the complete
GAF operation would move from Syracuse to Binghamton
on June 4,1973, that Locals 317 and 693 had agreed upon a
30-day period (June 4 to July 4) in which the drivers could
elect to remain on the GAF operation in Binghamton, and
that Local 693 would accept a transfer anytime during this
30-day period . At the end of the form letter two boxes were
provided for each driver to check either that he would go
to Binghamton on June 4, 1973, and make his final
decision within 30 days or , alternatively , that he would not
go to Binghamton and would seek employment elsewhere.
All 23 GAF drivers at Syracuse checked the box indicating
that they would „o to Binghamton and make their final
decisions within 30 days.
David Wingood was one of these 23 drivers . On June 1,
however, he, like the other drivers, was furnished by
Respondent with a copy of the agreement between
Respondent and Local 693 , effective that day. Concluding
that the Local 693 agreement was less favorable with
respect to certain fringe benefits than was the preexisting
agreement between Respondent and Local 317, Wingood
instigated and procured signatures of fellow employees to a
petition dated June 8, 1973, which set forth that Respon-
dent 's agreement with Local 317 had not yet expired and
that the signatories to the petition would not recognize
Respondent's agreement with Local 693. The petition was
addressed "To whom it may concern" and indicated that
copies were to be furnished to Local 317 and Respondent,
among others . Such copies were never furnished . However,
Bartlett was soon apprised by employee informants that
Wingood was circulating a petition . As of June 13,
Attorney John Arneson, initially contacted by David
Wingood and later retained by the signatories to the June 8
petition who contributed $25 each for this purpose, filed an
unfair labor practice charge against Respondent. The
charge alleged that Respondent dominated and interfered
with Local 317, contributed other support to Local 693,
and refused to bargain with Local 317. Respondent learned
of this charge a few days after it was filed.
On June 19, 1973, Respondent discharged Wingood,
several days following Wingood 's involvement in an
accident in which he was admittedly at fault . Respondent
predicated the discharge on this accident and on a record
of prior infractions . General Counsel contends that these
asserted grounds were mere pretexts and that the real
reasons for the discharge were because Wingood had
engaged in activities protesting the transfer of employee
representation from Local 317 to Local 693 and because
Wingood had filed unfair labor practice charges against
Respondent. General Counsel also contends that Bartlett
engaged in unlawful interrogation of employee Donald
Wheeler with respect to the June 8 petition.
These two issues, the legitimacy of Wingood 's discharge
and the alleged interrogation of Wheeler , are the only
substantive matters in litigation. Preliminarily , however, a
procedural issue is raised by Respondent 's motion,
advanced before the hearing began and renewed at the
hearing , that the Board proceeding herein should be
deferred pending submission of the instant dispute to
arbitration. General Counsel opposes the motion.
B. The Issue as to Arbitrability
The question whether a discharge is "for just and
sufficient cause" is subject to the gnevance-arbitration
procedures spelled out in Respondent 's collective-bargain-
ing agreement with Local 317 and also in its agreement
with Local 693 whichever agreement is applicable. Accord-
ingly, Respondent argues that the Board defer considera-
tion of this proceeding pending arbitral consideration and
Respondent further indicates that it will waive any
objection as to timeliness if grievance-arbitration proce-
dures are presently instituted . Respondent does concede,
however, that the Board apparently never deferred to
arbitration where , as here , a discharge is alleged to be
violative of Section 8(a)(4) of the Act, and that deferral
might also not be appropriate insofar as an issue of
unlawful interrogation in violation of Section 8(a)(1) of the
Act is raised. However , Respondent would hurdle these
latter considerations on the ground that evidence with
respect to these matters is either extremely weak or wholly
absent.
We need not pause to consider these collateral matters.
An absolute prerequisite to deferral is that the grievant to
be subjected to grievance -arbitration proceeding receive
fair representation . Respondent's motion for deferral
TRANSPORT DRIVERS CORP.
operational reasons, however, GAF decided to make
Binghamton, -New York; the base of its trucking opera.
tions. The operational reasons were that the bulk of-GAF's
operations^became centered in Binghamton rather than in
Syracuse . Accordingly, OAF notified Respondent by letter
dated May 8, ,'1973, that as of early June 1973 GAF was
transferring all its -equipment from Syracuse to Bingham-
ton and requested that Respondent make all necessary
arrangements for the transfer of drivers by June 1, 1973.
A problem for Respondent in this regard sprang from
the fact . that its GAF`dri%ers in Syracuse were covered by a
col cctive-bargainiiig agreement, between Respondent and
Local 317. That agreement did not terminate until July 31,
1973. During' the same period , however, Respondent also
had in effect a collective-bargaining agreement with Local
693 covering Respondent 's drivers who operated out of
Binghamton. Both agreements-.many of their provisions
were identical- had lawful union -security clauses and
grievance and arbitration clauses.
Accordingly, upon receiving notice from GAF of its
impending transfer to Binghamton , Bartlett, vice president
and general manager of Respondent , promptly notified
Fred Maggio, president and business agent of Local 317,
the bargaining representative at Syracuse. Maggio prof-
fered no objection to the move. "It was understandable,"
he testified, "that the work was out of Binghamton." But
he insisted that the drivers represented by Local 317 be
protected . After appropriate consultation, Local 317, Local
693, and Respondent agreed that the OAF drivers attached
to Local 317 in Syracuse ' be given 30 days to decide
whether to ' transfer to Binghamton or to seek other
employment . It was further ' agreed. that drivers who
transferred would retain their seniority.
Pursuant to this understanding Respondent during the
latter part of May held meetings with its GAF drivers to
inform them of the impending changes . In addition,
Respondent furnished each of its GAF drivers with a form
letter dated May 16 1973, which stated that the complete
GAF- operation wouldmove from Syracuse to Binghamton
on June 4,1973, that Locals 317 and 693 had agreed upon a
30-day period (June 4 to July 4) in which the drivers could
elect to remain on the GAF operation in Binghamton, and
that Local 693 would accept a transfer anytime during this
30-day period . At the end of the form letter two boxes were
provided for each driver to check either that he would go
to Binghamton on June° 4, 1973, and make his final
decision within 30 days or, alternatively, that he would not
go to Binghamton and would seek employment elsewhere.
All 23 GAF drivers at Syracuse checked the box indicating
that they would go to Binghamton and make their final
decisions within 30 days.
David Wingood was one of these 23 drivers. On June 1,
however, he, like the other drivers, was furnished by
Respondent with a copy of the agreement between
Respondent and Local 693, effective that day. Concluding
that the Local 693 agreement was less favorable with
respect to certain fringe benefits than was the preexisting
agreement between Respondent and Local 317, Wingood
instigated and procured signatures of fellow employees to a
petition dated June 8, 1973, which set forth that Respon-
dent's agreement with Local 317 had not yet expired and
961
that the signatories to the petition would not recognize
Respondent's agreement with Local 693. The petition was
addressed "To whom it may concern" and indicated that
copies were to be furnished to Local 317 and Respondent,
among others . Such copies were never furnished : However,
Bartlett was soon apprised by employee informants that
Wingood' was circulating a petition. As of June 13,
Attorney John Aqeson, initially contacted by David
Wingood and later retained by the signatories to the June 8
petition who contributed $25 each for this purpose, filed an
unfair labor practice charge against Respondent. The
charge alleged that Respondent dominated and interfered
with Local 317, contributed other support ; to Local 693,
and refused to bargain with Local 317. Respondent learned
of this charge a few days after it was filed.
On : June 19, 1973, Respondent discharged Wingood,
several days following Wingood's involvement in an
accident in which he was admittedly at fault . Respondent
predicated the discharge on this accident and on a record
of prior infractions. General Counsel : contends that. these
asserted grounds were mere pretexts and that the real
reasons for the discharge were because Wingood had
engaged in• activities protesting the transfer of employee
representation from Local 317 to Local 693 and because
Wingood had filed unfair labor practice charges against
Respondent. General Counsel also contends that Bartlett
engaged in unlawful interrogation.- of employee Donald
Wheeler with respect to the June 8 petition.
These two issues , the legitimacy of Wingood 's discharge
and the alleged interrogation of Wheeler, are the only
substantive matters in litigation. Preliminarily , however, a
procedural issue is raised by' Respondent 's motion,
advanced before the hearing began and renewed at the
hearing, that the Board proceeding herein should be
deferred pending submission of the instant dispute to
arbitration . General Counsel opposes the motion.
B. The Issue as to Arbitrability
The question whether a discharge is "for just and
sufficient cause" is subject to the grievance-arbitration
procedures spelled out in Respondent's collective -bargain-
ing agreement with Local '317 and also in its agreement
with Local 693 whichever agreement is applicable . Accord-
ingly, Respondent argues that the Board defer considera-
tion of this proceeding pending arbitral consideration and
Respondent further indicates that it will waive any
objection as to timeliness if grievance-arbitration proce-
dures are presently instituted . Respondent does concede,
however, that the Board apparently never deferred to
arbitration where, as here, a discharge is alleged to be
violative of Section 8(aX4) of the Act, and that -deferral
might also not be appropriate insofar as an issue of
unlawful interrogation in violation of Section 8(aXI) of the
-Act is raised . However, Respondent would hurdle these
latter considerations on the ground that evidence with
respect to these matters is either extremely weak or wholly
absent.
We need not pause to consider these collateral matters.
An absolute prerequisite to deferral is that the grievant to
be subjected to. grievance-arbitration proceeding receive
fair representation. Respondent's motion for deferral
TRANSPORT DRIVERS CORP.
Wingood's activities were plainly entitled to statutory
protection. As noted, Wingood after indicating his assent
to the proposed move to Binghamton, was furnished, as
were his fellow employees, with a copy of the new
agreement between Respondent and Local 693. Conclud-
ing that the Loca'' 693 agreement was less favorable with
respect to certain terns and conditions of employment-
-specifically, certain fringe benefits-than was the previ-
ously subsisting agreement with Local 317, Wingood
drafted the petition of June 8 and circulated it among his
fellow employees. In addition, Wingood contacted an
attorney, and after he solicited contributions from his
fellow-employees for that purpose, retained that attorney.
On June 13, 1973, the attorney filed the initial unfair labor
practice charge in this proceeding. Clearly, Wingood's
activities were directed to mutual aid and protection and
dust as clearly fell within the statutory guarantee accorded
to protected concerted activities.
It is also manifest that Respondent was aware of
Wingood's efforts. Concededly, Respondent's knowledge
was to some extent indirect inasmuch as it was never
shown a copy of the petition which Wingood had prepared
and was circulating. On the other hand, Bartlett learned in
advance of the discharge that Wingood was circulating a
petition. Bartlett testified that several of the drivers called
him and volunteered that information. Moreover, Bartlett
acknowledged, albeit reluctantly, that he was also in-
formed that the petition was directed against Respondent
and protested the change of representation from Local 317
to Local 693.
I am also satisfied and find that Bartlett knew before the
discharge that an unfair labor practice charge had been
filed against Respondent. As already noted, that charge
was filed with the Board on June 13 and Bartlett
acknowledged after some equivocation that the charge
came to his atten-ion a couple of days thereafter. Of
course, as noted, the charge in question was filed by John
Arneson the attorney retained by the signatories to the
petition of June 8, and alleged merely that Respondent had
violated the Act by contributing support to Local 693 and
by refusing to bargain with Local 317. No reference of any
kind to Wingood appeared on the face of the charge.4
It may be fairly assumed that Respondent, even though
devoid of union animus. would be less than happy with
Wingood's activities which threatened to upset the resolu-
tion of a representation problem which it had had reason
to believe was amicably resolved. And certainly there
would be ground for suspicion that Respondent might take
reprisals against Wingood for that reason. But mere
suspicion, as General Counsel implicitly recognizes, is an
inadequate substitute for proof. Accordingly, General
Counsel argues, as it must, that the reasons assigned by
Respondent for the discharge of Wingood were spurious
4 The first reference to Wingood appeared on an amended charge, also
filed by John Arneson. This charge was not filed, however, until July 26.
more than a month after Wingood's discharge Under these circumstances
there would appear to be little predicate for General Counsel's alternative
allegation that Wingood was terminated for filing unfair labor practice
charges against the Company. Nevertheless, General Counsel would hurdle
this difficulty by asking that two necessary inferences be drawn- (1)
Wingood by circulating the June 8 petition and instigating the retention of
an attorney was really responsible for filing, and for all practical purposes
963
and/or contrived to conceal the illegal motivation for its
action, were mere pretexts.
On this phase of the case I find and conclude that
General Counsel's argument, while not totally without
support in the record, is somewhat strained. Certainly, the
accident of July 12, as to which Wingood candidly
admitted his fault, was not spurious or contrived. Likewise
neither spurious or contrived was the letter from GAF,
which had no knowledge of Wingood's activities, that
GAF no longer wanted Wingood on its roster of drivers
because of two chargeable accidents within a 12-month
period. Respondent cited both these accidents as grounds
for its action. As stated, Wingood acknowledged that the
July 12 accident occurred because he was preoccupied with
other matters. The second accident which occurred less
than a year earlier involved considerable damage to a
tractor-trailer which Wingood was driving. No other
vehicle was involved. Wingood's defense was that because
Respondent had not initiated timely disciplinary action in
that regard, that matter could no longer be relied upon by
Respondent as affecting his continued employment.
Wingood's work performance was also far from exem-
plary in the other respects denominated in Respondent's
letter of discharge. Thus, Wingood admitted, as charged
that he had knowingly violated Department of Transporta-
tion regulations by driving more than 70 hours in an 8-day
period and that he had received a warning letter for this
offense. Wingood also admitted, as charged, speeding at 70
miles an hour in a 55-mile-an-hour zone. The latter two
violations also occurred within the year preceding the
discharge. Finally, the letter of discharge listed several
other violations by Wingood having to do with such
matters as late loads, purchasing fuel for cash , and failing
to count freight. Wingood did not wholly admit fault in
these latter respects but urged principally that these were in
essence violations occurring more than a year earlier, that
they had been discussed with management and condoned.
In the face of this record of infractions, several of them
serious and several of them admitted, the argument that
these infractions were spurious or pretexts has little
justification on this record.5 General Counsel, to be sure,
seeks to minimize the significance of the charged offenses.
Thus General Counsel argues that the work rules under
which the GAF drivers operated provided for progressive
discipline for specific offenses and that the discharge of
Wingood did not comport with these work rules. But
General Counsel overlooks the fact that the work rules in
question specifically contemplated the legitimacy of
disciplinary action including dismissal where, as here,
"combinations" of rule infractions were involved. General
Counsel argues further that under the practice prevailing
pursuant to Respondent's collective -bargaining agreement
offenses more than a year old could not be utilized as a
did file, the June 13 charges , and (2) Respondent would, and did,
necessarily draw that conclusion . I find the soundness of these inferences on
the record here presented quite tenuous and find further that questions
could properly be raised as to their legal sufficiency to establish a violation
of Section 8(a)(4) of the Act . However, for reasons hereinafter set forth. I
deem it unnecessary to explore these matters.
5 This record, unlike records in comparable cases, is devoid of any
suggestion that employees with similar patterns of infractions were not
discharged
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
basis for disciplinary action and that the inclusion of such
offenses in the letter of discharge was attributable to
Bartlett's belief that Wingood was responsible for the
unfair labor practices filed against Respondent. The
answer here is two-fold. First, several of the offenses listed
including the more serious among them occurred within
the preceding 12 months, were in large part admitted and
themselves warranted the penalty of discharge. Second, the
mere listing of older offenses affords no basis for an
adverse inference. Bartlett testified, and that testimony was
fully corroborated by Maggio, president of Local 317, that
it was standard practice for Respondent in discharge cases
to list all offenses without regard to time of occurrence and
that the Union was free to delete or disregard offenses
which for timeliness or other reason were not eligible for
consideration.
In sum, I conclude and find on the basis of the whole
record that there is a lack of probative evidence to
establish that the reasons assigned by Respondent for the
discharge of Wingood were mere pretexts and contrived to
mask the real reason for the discharge; namely, Respon-
dent's resentment to his protected concerted activity
and/or his filing of unfair labor practice charges. Accord-
ingly, I find that a violation of Section 8(a)(l), (3), and (4)
of the Act in this regard, as alleged in the complaint, has
not been established.
D. Interrogation
General Counsel alleges, and Respondent denies, that
Respondent engaged in unlawful interrogation of employ-
ees in violation of Section 8(a)(1) of the Act. The evidence
relating to this allegation derives from a single telephone
conversation between Bartlett, Respondent's vice president
and general manager, and Donald Wheeler, an employee.
The critical factual issue is whether, as Wheeler testified,
Bartlett in the course of the telephone conversation
initiated an inquiry of Wheeler as to whether Wheeler had
signed the Wingood petition-Wheeler replied affirmative-
ly-or whether, as Bartlett testified, Wheeler volunteered
that information. The question is one of credibility.
Certain background matters are undisputed. Donald
Wheeler had been employed by Respondent since July
1972. For a period of time Wheeler was assigned to the
roster of drivers for GAF. On May 7, 1973, he tendered his
written resignation to Respondent, effective that day.6
However, as of the following week, Wheeler returned to
Respondent's payroll and was assigned by Respondent on
a casual basis for Dymac Food, another company for
which Respondent furnished drivers. Wheeler did no more
driving for GAF. Nevertheless Wheeler was one of the
employees solicited by Wingood to sign the June 8 petition
and Wheeler did so.
Bartlett and Wheeler were the only participants in the
June 17 telephone conversation and the only witnesses in
that regard. Bartlett's testimony on this phase of the case
was forthright and straightforward. He testified that he had
received a call from Dymac Food indicating that the latter
enterprise wanted to hire Wheeler directly rather than on
6 On direct examination Wheeler stated that he had been discharged by
Respondent. On cross-examination , however, confronted with his written
referral from Respondent. Bartlett then initiated the
telephone call to Wheeler to determine Wheeler's desires
and to inform Wheeler that Respondent would have no
objection if Wheeler wanted to work for Dymac Food
directly. When this phase of the conversation was
completed, Wheeler, according to Bartlett, volunteered the
comment that he understood Respondent was having some
trouble with Wingood and further volunteered that he,
Wheeler, had signed the Wingood petition. Bartlett replied
"That's your prerogative," and the conversation ended.
Wheeler's testimony was less straightforward. On direct
examination Wheeler testified that Bartlett called him on
the telephone early Sunday morning at his home and asked
him whether he had signed the Wingood petition. Wheeler
replied that he had signed the petition but had not read it.
According to Wheeler, Bartlett then made inquiries
concerning Wheeler's work with Dymac Food. Wheeler's
version of the telephone conversation on cross-examina-
tion was different from that he gave on direct. This time he
testified, as did Bartlett, that the telephone conversation
opened with a query by Bartlett as to whether Wheeler
wanted to work for Dymac Food directly or on referral
from Respondent. The conversation as to the Wingood
petition , Wheeler stated on cross-examination , ensued
thereafter. Wheeler reiterated, however, that Bartlett
initiated the talk about the Wingood petition.
The difference between Bartlett's version of the conver-
sation and Wheeler's version, particularly the version
Wheeler gave on cross-examination, is insubstantial except
on the single issue whether Bartlett asked Wheeler if the
latter had signed the Wingood petition or whether Wheeler
had volunteered that information. At the outset it is clear
that the principal purpose of the call was to determine
Wheeler's future employment status and that the discus-
sion about the Wingood petition followed only incidental-
ly. Moreover, as both Bartlett and Wheeler knew, Wheel-
er's status at the time was that of a casual employee driving
for Dymac Food and Wheeler was not involved in any way
in the controversy affecting Respondent's GAF drivers.
Under the circumstances it would be highly unlikely that
Bartlett would elect to press inquiries to Bartlett concern-
ing the Wingood petition. Particularly is this true inasmuch
as other drivers directly involved had volunteered informa-
tion concerning the Wingood petition to Bartlett. Paren-
thetically, it may be noted that Bartlett denied interrogat-
ing any of these informants and none of these informants
were called to dispute Bartlett's denial even though Bartlett
identified several of them by name.
In any event, even if Wheeler's version of the conversa-
tion were credited it is doubtful that Bartlett's asserted
inquiry of Wheeler, a casual employee not attached to the
GAF roster, would constitute unlawful interrogation.
Bartlett did not, on Wheeler's version, press his inquiry as
to the contents of the petition, or ask the identity of other
signers, or probe the nature and extent of Wingood's
efforts. In such a context Bartlett's asserted query could, at
most, be regarded as a highly technical violation, not
warranting a remedial order.
The short of the matter, however, is that Bartlett's
resignation , Wheeler conceded that he had resigned.
TRANSPORT DRIVERS CORP. 965
account of his conversation with Wheeler is more straight-
forward and credible than the somewhat differing versions
given by Wheeler. Accordingly, I find that Bartlett did not
inquire of Wheeler as to whether the latter had signed the
Wingood petition. Instead, I believe that Wheeler volun-
teered that information.
I conclude that on the basis of all the evidence a case of
unlawful interrogation in violation of Section 8(a)(1) of the
Act has not been established.
of the evidence that Respondent has committed any unfair
labor practice alleged in the complaint.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record , and pursuant to Section 10(c)
of the Act, I recommend the following:
ORDER?
The complaint in this proceeding is dismissed in its
entirety.
CONCLUSION Ol? LAW
The General Counsel has not shown by a preponderance
r In the event no exceptions are filed as provided by Sec 102 46 of the 102.48 of the Rules and Regulations , be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board , the findings , its findings , conclusions , and order, and all objections thereto shall be
conclusions , and recommended Order herein shall, as provided in Sec. deemed waived for all purposes.