Tri-State Motor Transit Co.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1042 (N.L.R.B. 1980)

1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tri-State Motor Transit Company and General
Truck Drivers, Warehousemen & Helpers
Union Local 467, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Help-
ers of America. Case 31-CA-9316
August 27, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JE.NKINS AND TRUESDALE
On May 22, 1980, Administrative Law Judge
Russell L. Stevens issued the attached Decision in
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the Re-
spondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
I 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 re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Drv
Wall Product.s Inc., 91 NLRb 544 (1950), enfd 188 F2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing his findings
2 We agree that the facts of this case do not warrant a finding, under
the small plant dctrine that the Respondent had knowledge of the union
activity. However. we do not adopt the Administrative Law Judge's
rationale concerning the small plant doctrine as set forth in his Decision
DECISION
STATEMENT OF THE CASE
RUSSELl. L. STEVENS, Administrative Law Judge: This
case was heard in San Bernardino, California, on March
25 and 26, 1980.' The complaint, issued October 26, is
based on a charge filed August 23 by General Truck
Drivers, Warehousemen & Helpers Union Local 467, In-
ternational Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America (Union). The com-
I All dates hereinafter are within 1979. unless stated to be otherwise
251 NLRB No. 144
plaint2 alleges that Tri-State Motor Transit (Respondent)
violated Section 8(a)(t) a and (3) of the National Labor
Relations Act (Act).
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and Respondent.
Upon the record of the case, and from my observation
of the witnesses and their demeanor, I make the follow-
ing:
FINDINGS O1 FACT
I. BUSINESS OF RESPONDENT
Respondent is, and at all times material herein has
been a corporation duly organized under and existing by
virtue of the laws of the State of Delaware, with an
office and principal place of business located in Rialto,
California, where it is engaged in interstate transporta-
tion of freight and commodities. In the course and con-
duct of its business operations, Respondent annually de-
rives gross revenues in excess of $50,000 from the trans-
portation of freight and commodities from the State of
California directly to points outside the State of Califor-
nia, and annually receives revenues in excess of $50,000
for performance of transportation services for the United
States Government at various military bases in and
around the Los Angeles Basin. The operations of Re-
spondent have a substantial impact on the national de-
fense of the United States.
I find that Respondent is, and at all times material
herein has been, an employer engaged in commerce and
in a business affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVLD
General Truck Drivers, Warehousemen & Helpers
Union Local 467, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America,
is, and at all times material here has been, a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE AI.I.EGEDI) UNFAIR I.ABOR PRACIICE
A. Background4
Respondent's headquarters are in Joplin, Missouri,
from which location Respondent directs the operation of
its terminals located at various places throughout the
United States. The Rialto, California, terminal is the only
one involved in this controversy.
Respondent provides freight transportation services
through the use of two separate trucking methods. First,
2 As amended at the hearing, to make certain corrections in par. 7
Counsel stipulated that all employees named in par. 7 'ere laid off on
August 13
a Par 6 of the complaint was dismissed by the Administrative La's
Judge at the hearing, with no objection by counsel for the General Coun-
sel, on the ground that no testimony or evidence was introduced by the
General Counsel in support of the allegation
4 This background summary is based on credited testimony and cei-
dence that is not in dispute
TRI-STATE MOTOR ITRANSIT COMPANY I()1043
each terminal has a cadre of local drivers who live in or
near the terminal area, who operate trucks o:ned by Re-
spondent, and who haul freight to and from the terminal
and an area within short range of the terminal. Rialto
local drivers haul to and from Rialto and an area encom-
passing parts of Arizona and Nevada. and Southern Cali-
fornia. However, local drivers on occasion take loads
over-the-road, to points throughout the United States.
Such over-the-road trips are the exception, rather than
the rule. Local drivers are supervised by a terminal man-
ager, and are paid by the terminals.. Second, Respondent
contracts on a full-time, exclusive basis with independent
operators, whose services primarily are used for over-
the-road hauls to and from the local area serviced by
local drivers. However, on occasion those independent
operators are used for local hauls, but such local hauls
by those drivers are the exception, rather than the rule.
Lease operators or drivers, as independent operators
sometimes are known, have priority in hauls that are
available at terminals, whether the hauls are local or
over-the-road. When lease operators drop off loads at the
terminal or within the terminal area, they remain at the
terminal until work is available and they are dispatched.
Usually, over-the-road hauls are available soon after
lease operators unload in the local terminal or area. but
sometimes a wait is necessary before a new job is availa-
ble. L.ease operators are given hauls on a sequential
basis-first driver into the terminal has first choice of
available work. If no over-the-road haul is available, the
lease driver has the priority option of driving a local
load, if one is "on the board" and available for dispatch.
At times, over-the-road jobs are plentiful, and lease driv-
ers do not have to spend time on local hauls or waiting
for work. At other times, over-the-road work is slow,
the number of lease drivers at the terminal builds up, and
even local hauls are not available in numbers adequate to
keep the lease drivers occupied. In such instances, both
lease drivers and local drivers are in excess supply. Lease
drivers ordinarily just await dispatch in such slack peri-
ods, but local drivers may be given, or may volunteer to
do, various jobs in the "yard" such as servicing, loading
and unloading, inspecting trucks, and doing routine
chores.
At times relevant herein, Robert Sargent6 was the
Rialto terminal manager. Sargent receives general guid-
ance from, and is supervised by, personnel in the Joplin
office, including George Carter, who is senior vice presi-
dent of operations; and Robert Perkins, who is vice
president of safety and industrial relations. The Rialto as-
sistant terminal manager was terminated in August 1979,
and to date has not been replaced, although a replace-
ment is being sought. The Rialto terminal has four dis-
patchers, including James Flaws, whose status is dis-
cussed infra. All dispatchers do the same work, and all
rotate on 12-hour shifts, 6 a.m. to 6 p.m.,7 with 4 days
I Local drivers are paid on a mileage or hourly basis. Independent op-
erators are paid lump sums. and those operators pay their o, n driver,
The operators are paid on a rileage and percentage basis, depending
upon the type of freight hat is hauleo Independent operalors own their
own trucks All trailers that are used by Respondent are owsned h Re-
spondent
, Individuals are referred to herein by their last names
Al terminals are operated 24 hour, per da. 7 days per sesek
Rialto terminal had 14 local drivers and 3 yard men,
who serviced, maintained, and inspected trucks and did
various chores in the terminal yard. Two yard men were
terminated on August 13, and have not been replaced. A
mechanic, who remained after the other two were termi-
nated, has done yard work since August 13 and some-
times is referred to as the yard man.
On July 31 Paul Fink, one of Respondent's local driv-
ers at Rialto, went into Sargent's office while other local
drivers and a mechanic waited outside the office, beyond
an open door. Fink told Sargent the employees ,,ere net:
satisfied with their wages, and asked that he call Carter
in Joplin, and inquire about the possibility of a raise. Sar-
gent called Carter, who said he could not give an
answer, but that he would turn the matter over to Per-
kins. Sargent told Fink he would get in touch with Per-
kins, later. Sargent called the drivers together a few days
later, and said "the Board of Directors had not . . . ap-
pros cd no raise and they could give us no answer"
Some of the drivers then went to the Union and obtained
blank authorization cards, five of which Fink obtained.
Fink distributed the five cards to employees, and collect-
ed them on August 8. Several of the local drivers met
with Gary Daub, the union representative, on August 12
at the home of Daniel Brandes, a local driver. The fol-
lowing day II local drivers were laid off, and one other
driver was laid off August 14. A few days later a picket
line was set up. On October 2, employees David Powell
and Herbert Powell were recalled to work. No other
driver has been recalled. The work formerly done by the
local drivers who were laid off. has been done by lease
drivers since the layoff.
B. Contentions of the Parties
The General Counsel contends that the employees
were laid off because of their union and other protected
activity.
Respondent contends that it did not know at the time
of the layoff about the employees' protected activity, and
that the employees were laid off after some period of
consideration solely because they were not needed due
to the availability of many lease drivers who did not
have over-the-road hauls and who were available for
local work.
1. Knowledge
It is noted at the outset that the record is devoid of
any testimony or evidence, even by inference, that Re-
spondent harbors any union animus. The General Coun-
sel appears to rely on the theory that the employees
were laid off because they asked for a raise, at least as
much as on the theory that Respondent opposed union
activity of its employees. However, there is nothing
upon which to base even a suspicion, much less an infer-
ence, that Respondent opposed union activity on the part
of its employees.
There is no direct evidence that Respondent knew of
the employees' protected activity. Fink testified that,
when he was distributing cards to employees in the yard,
Sargent was approximately 30 feet away "at times,' but
that he did not see Sargent looking in his direction at
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any time. Fink testified that he did not know whether or
not Sargent saw him passing out union authorization
cards and that Sargent was not asked about nor did he
testify concerning this incident.
Fink testified that he had a truck haul to Nevada the
evening of August 12, after the union meeting held that
evening,8 and that, when he returned on August 13, he
talked with Flaws and told him about the union meeting
at Brandes' house. Fink stated: "Mr. Flaws didn't say
anything; he just went back in the office." Fink said he
also told Flaws that the employees were unhappy about
their wages, and that they "had gotten no results . . .
from Joplin.
So far as the conversation with Flaws is concerned, it
is clear beyond reasonable question that Flaws was nei-
ther a supervisor nor an agent of Respondent when he
talked with Fink. He was no more than a fellow employ-
ee, thus Fink's testimony on this point is of no probative
value for the following reasons:
(I) Fink testified that he saw Flaws suspend drivers on
four occasions because of the employees refusing to obey
their dispatch, but Fink stated that, on each occasion,
Flaws first called the Joplin office about the matters.
Further, the suspensions never were for more than 24
hours, and Flaws told the suspended drivers that they
would have to make their peace with Ray Pence in
Joplin, concerning the length of suspensions. Fink also
testified that he has seen Flaws put suspended drivers
back to work without calling Joplin, but it is apparent
that Flaws was acting under the instructions of Joplin
personnel. Fink said Flaws "took over" when Sargent
was not in the office, but he gave no details that would
indicate supervisory status. Fink testified that, when Sar-
gent is present, Sargent supervises Flaws. Fink testified
that no manager or supervisor ever said anything to him
about union activity, and that Sargent said nothing about
such union activity when he laid Fink off. Fink testified
that Flaws' work was limited to clerical tasks, mostly in-
volved with dispatching, although he did some truck
fueling, truck inspection, and yard work, and, on occa-
sion, assigned temporary yard work assignments to Fink.
Heavy load work "was always done through Bob Sar-
gent," according to Fink. Finally, Fink testified that he is
a personal friend of Flaws and that they frequently so-
cialize on fishing trips and on the bowling team.
(2) Donald Lindsey, a local employee since July 6,
1978, testified that, when he became a yard worker
rather than a local driver at his own request for personal
reasons, he asked Sargent for the transfer, and felt that
Sargent was the only one necessary to ask. Lindsey said
the only other person authorized to make such a change
was Pence in Joplin. Lindsey testified that he never
talked with anyone, other than fellow employees, prior
to August 13 about the union or any union activity, nor
did he know of any employee who said anything to Sar-
gent about such matters. After he was laid off, Lindsey
talked with Pence and sent a letter of resignation to
Pence.
I Respondent's attempt to discredit Fink's testimony concerning the
times of this haul. was not successful.
(3) Harold Nickels, Respondent's president since May
19 and formerly in Respondent's finance department,
with offices in Joplin, credibly testified that all work as-
signments at the Rialto office are made by Sargent, and
that Flaws has no authority to discipline employees or
grant them time off.
(4) Brandes testified that, for the last several weeks of
his employment, he worked in the yard, rather than driv-
ing, because of personal reasons. Brandes said he made
that arrangement with Sargent, and discussed it with the
then assistant terminal manager, named Mel, and that if
he had not made the arrangement through Sargent he
would have had to make it with someone in Joplin.
Brandes testified that he is a personal friend of Flaws
and that Flaws formerly was a member of the employee
bowling team.
(5) Carter credibly testified that he is Sargent's imme-
diate supervisor and that Flaws' work is clerical. He said
Flaws prepares paper work for drivers, occasionally calls
drivers on the telephone to tell them he has a dispatch
for them, and has no authority to hire or fire employees.
(6) Flaws credibly described his work as 80 percent
clerical paper work, 15-percent customer contacts, and 5
percent idle chatter with drivers. Flaws credibly testified
that he takes no part in recommending or determining
wages, holidays, leave, hiring, firing, fringe benefits, lay-
offs, raises, discipline, work evaluation, time off, correc-
tion of time reports, or work assignments other than rou-
tine dispatches. Flaws said he sometimes has a sandwich
with drivers at noon, but that he usually eats "on the
run." He said he has no special parking place, locker, or
special privileges. He said he sometimes asks drivers to
do chores in the yard but that he has no authority to
order them to do so. Flaws testified that all four dis-
patchers do the same work.
It is apparent from all the testimony that Flaws associ-
ated with employees as a fellow employee that he some-
times did rank-and-file yard work, and that his only as-
signment of work to employees was of a sporadic and
routine nature, in connection with his duties as a dis-
patcher. Any direct action, so far as employees were
concerned, could be taken only after clearance either
with Sargent or personnel in Joplin. All four dispatchers
worked in the same manner, and worked equivalent
hours.9 There is no indication, or contention, that all
four are supervisors; if they were, it would result in a
disproportionate ratio of supervisors to employees-ap-
proximately -to-3 or -4.'° Flaws credibly testified that
he knew nothing about union activity until after the
layoff, and after picketing began. The General Counsel
argues that Flaws took Sargent's place when Sargent
was not there, but Flaws credibly testified that his ac-
tions were only to fill in, and to keep the office running
during those brief intervals. Further, the other three dis-
patchers did the same thing, yet there is no contention
that the other three dispatchers were supervisors, and
Sargent's hours do not coincide with those of Flaws; there are over-
lapping hours Sargent works from 7 am. until 5:30 or 6 p.m.
IO Monarch Federal Savings and Loan Association. 237 NLRB 844
(1978). Sol IHInkind d/h/ua Greenpark (ar Center, 231 NLRB 753 (1977);
.4irkaman, Incorporated, 230 NLRB 924 (1977).
TRI-STATE MOTOR TRANSIT C()MPANY 1(045
there is no showing that Flaws was a special case among
the four. '
The General Counsel argues that the small plant doc-
trine' 2 supports the conclusion of knowledge, but (a)
there is no direct evidence of knowledge, which is re-
quired,'t and (b) there is no showing of a close relation-
ship between employees and supervisors that would justi-
fy reliance on that doctrine. So far as the card distribu-
tion is concerned, Fink's testimony that Sargent was in
the yard when he was passing the cards out is too specu-
lative for reliance-there is no evidence that Sargent
knew what Fink was doing, if in fact he saw Fink doing
anything.
Finally, the timing involved is noteworthy. Fink testi-
fied that he talked with Flaws at approximately 1:30 p.m.
on Monday, August 13, and:
I had told Mr. Flaws that we had had a union
meeting the day before on Sunday at Dan Brandes'
house, and Mr. Flaws didn't say anything; he just
went back in the office.
Q. Well, did you tell him this out of the blue or
did you say something else as preliminary?
A. No. We told him that we were unhappy with
the wages that we were getting and that we had
gotten no results from the-Joplin.
Q. Now, after your conversation with Mr. Flaws,
wh'at did you do?
A. I went up in the tool or supply room.
Q. And how long were you there?
A. Oh, probably two hours or so; I don't know.
Q. Did you have a conversation with Mr. Sar-
gent at about that time?
A. Yes. A while later, Mr. Sargent came out and
told me that I was laid off due to the lack of busi-
ness. And I told him that-I said, "You've got to be
kidding." And he said, "No, Paul, I'm not. "And
there were two loads of radioactive that I had been
hauling for years that is considered my run to
Nevada and they were sitting on the yard to be
moved.
As of the time Fink said he talked with Flaws, the
only possibility of any knowledge of Respondent that
union activity was afoot was the speculative testimony of
Fink concerning distribution of the cards. No action was
taken by Respondent relative to its employees after Fink
distributed cards to employees on August 8. It is clear
that Flaws was one of Fink's fellow employees and was
not a supervisor but, assuming, arguendo, that Flaws was
a supervisor, to conclude that Sargent arranged with
Joplin executives for a mass layoff, within approximately
2 hours of a conversation wherein Fink told Flaws that
" The General Counsel argues that Flaws testified to signing payroll
sheets after denying that he initialed or signed timecards. That testimony
was ambiguous and inconclusive, and is given no weight. It seems that
two separate subiects were involved
12 Coral Gabels Convalescent Ilome. Inc., 234 NLRB 1198 (1978); Niag-
ara Gear Corporation. 225 NLRB 122 (1976); Bill's Coal Company. Inc.
203 NLRB 274 (1973).
' Kimball Tire Co.. Inc., 240 Nl.RB 343 (1979); Ultra-Sonic De-Bur-
ring, Inc., 233 NLRB 1060 (1977)
4 Kimball Tire Co.. upra; Ultra-Sonic De-Burring, Inc.. supra.
there had been a union meeting, would be to pin a viola-
tion on Respondent based upon extremely tenuous and
uncertain grounds. That is not the kind of proof that jus-
tice, or the Act, requires. '
It is found that, although Respondent knew as of
August 13 that the employees wanted a raise, the Gener-
al Counsel did not show that Respondent knew, at that
time, of union activity at its Rialto terminal.
2. Respondent's terminal operations
According to Carter's credited and undisputed testimo-
ny, Respondent has approximately 300 company drivers
and 1,000 leased tractors and owns approximately 2()0
tractors. More than one-half, and possibly two-thirds, of
all loads are hauled by lease operators. Approximately 90
percent of local hauls are completed by local drivers.
Each morning, each terminal calls the Joplin office and
gives the availability of power units (tractors) and trail-
ers. That information is given to sales personnel, who at-
tempt to obtain business for available equipment.
According to the credited and undisputed testimony of
Sargent and Carter, Respondent's terminals at Tracy,
California, and Maytown, Washington, are approximate-
ly the same size, and do approximately the same volume
and type of business, as the Rialto terminal. During
1979, and at the present time, the terminals at Tracy and
Maytown each employed and do employ two local driv-
ers. Maytown has, and had in 1979, one mechanic plus
another mechanic who was on sick leave, and had no in-
spectors. Inspections were, and are, done by the dis-
patcher and the mechanic, and, when available, by local
drivers. Neither Tracy nor Rialto had in 1979, or now
has, any inspector; inspections are done by any employ-
ees who are available. In August 1979 Maytown had a
terminal manager, an assistant terminal manager, four
dispatchers, two local drivers, one mechanic, and one
janitor. Tracy had a terminal manager, an assistant termi-
nal manager who also was in charge of the shop, four
dispatchers, two local drivers, and three mechanics.
Those same tables of organization exist today. All dis-
patchers at Tracy, Maytown, and Rialto do the same
type of work. Carter credibly corroborated Flaws' testi-
mony concerning the work done by dispatchers.
Fink and Brandes testified relative to their observa-
tions at Tracy and Maytown during brief stops at those
locations but their testimony was vague and inconclusive
and did not detract from that of Carter, who testified
from records subpenaed by the General Counsel.
It is quite clear, and found, that the number of local
drivers at Rialto in August 1979 was far in excess ot
those at Tracy and Maytown, while the nature and
extent of the work load at all three locations essentially
was the same, or nearly the same."7 The General Coun-
sel introduced no testimony or evidence to show that
there was any reason for the greater number of local
drivers at Rialto.
'5 This conclusion is buttressed hb the total absence of ts idcncc thiet
Respondent was antiunion
5 This testimony is supported h Resp Fshs 5, 6. and 7
? Resp Esh 4, 6. and 7
1040 I)ECISIONS ()F NAII()NAL. LABOR RLATIONS BOARDI)
3. Decision to effect a layoff
Carter testified at length, using documents partially
prepared in response to the General Counsel's subpena.
Carter credibly testified, and the documentary evidence
lends support to that testimony, that Respondent had an
excessive accumulation of leased trucks and lease drivers
at Rialto during the summer of 1979. That testimony is
supported by the testimony of Sargent, and it is shown
by the testimony of Fink, Lindsey, and Brandes, that the
work for local drivers had decreased to the point at
which Lindsey, and Brandes, could be taken off hauls
and permitted to do work inl the yard, as opposed to
driving, for several weeks at a time. Carter testified that
the drop in shipments at Rialto, which in turn resulted in
an accumulation of lease drivers who were available for,
and used on, local hauls, began in May or June, and that
he reported the situation to Perkins in June or July, with
a recommendation that Rialto had too many local driv-
ers. Carter testified that, at the time he reported to Per-
kins, no union activity at Rialto had been reported to
him, and although he was aware at some time that the
employees wanted a raise and had referred that matter to
Perkins, that awareness was after he talked with Perkins
about a possible layoff. Carter said he did not give seri-
ous thought to Sargent's inquiry about a raise, since
raises were not within Sargent's area of responsibility.
Nickels generally corroborated Carter.
Sargent testified that he noticed a buildup of lease
drivers in June, July, and August, 1979, which resulted
in local drivers hanging around the yard, loafing. Sar-
gent said he reported that fact to management during a
sales meeting in Monterey, California, in July, and pre-
sented documents relative to work volume, which he
prepared in advance of the meeting. Sargent said he also
discussed the problem in July with the Tracy manager,
Buzz Kidwell.
Fink testified that he was aware of the increase of un-
occupied lease drivers in July and August, but that he
had seen the work orders, and business was not any less.
Lindsey testified that, so far as he knew, there was no
decline in business in July and August.
C. Discussion
The fact that Rialto had a much larger local driver
force than Tracy and Maytown, where business was ap-
proximately the same, is not in dispute. Nor is the fact
that Rialto had a sharp accumulation of lease drivers in
July and August in dispute. Respondent's Exhibit I
shows that those drivers almost doubled in July and
August, over May and June. Respondent's Exhibit 2
shows that the trend increased even more between Sep-
tember 1979 and March 1980.18 Those two facts compel
the conclusion that Respondent had more local drivers
than it needed, at the time of the layoff. Sargent's testi-
mony that the local drivers had more time than work,
was partially supported by Fink, Lindsey and Brandes.
" Ihre G(eneral Counsel rgues that Respondent's documentar ei-
de-,ce is flawed in that is does not show figures prior to Ma' 1979 tilo'-
ever. an adequate showing is made relative to the period involved herein,
and, further Resp. Exh 2 carries the figures forward to March 1980. for
almost a total overlap olf months
Sargent was a convincing witness, and he is credited. In
view of such facts, a layoff was dictated b business pru-
dence. Respondent would have been an unusual organi-
zation if it decided to retain a sizeable, and dispropor-
tionate, local driver staff that was not required. Carter's
testimony that the decision to lay off local drivers was
dictated by business requirements, and not by employee
protected activities, is credited.
The General Counsel argues that all employees who
attended the union meeting were laid off, and that Re-
spondent did not lay off, or rehire, all who did not
attend. However, (a) Fink's testimony, wherein he
named those in attendance at the meeting, was self-serv-
ing and not supported by any other testimony or evi-
dence, and Fink was not a totally convincing witness; (b)
only Flaws was told by Fink about the meeting, and
Flaws was a fellow employee; (c) Fink said nothing to
Flaws concerning who attended the meeting-he only
said there was a meeting; (d) there is no testimony or
evidence that Flaws or any supervisor knew, or had any
reason to know, who attended the meeting; (e) there is
no testimony or evidence that any supervisor, or Flaws,
knew who signed union cards (the fact that Sargent was
in the yard when Fink distributed cards, if such if a fact,
is of no weight, so far as this point is concerned); and (f)
so far as the meeting with Sargent about the raise is con-
cerned, Fink testified that "all the drivers or most all the
drivers and . . . one mechanic" attended. Thus, this
meeting is inapplicable to the argument. In view of the
foregoing, this argument is not persuasive.
The General Counsel argues that Respondent recalled
some employees after the layoff, on discriminatory
grounds, but (a) no seniority system was shown to have
been in effect: (b) this point was not fully litigated; and
(c) the record as it exists does not support the conclusion
sought by the General Counsel.
The General Counsel argues that the suddenness of the
layoff is basis for an inference that it was because of the
union meeting. However, (a) as discussed above, it is un-
likely that a layoff of the magnitude and seriousness of
the one here involved, could have been effected in 2
hours; (b) Carter and Sargent credibly testified that a
layoff was under consideration for some time; and (c)
Sargent, who announced the layoff, did not make the de-
cision to effect a layoff. That decision was made in
Joplin.
In summary, the record shows ample economic reason
for the layoff, and Sargent, Carter, and Nickels credibly
testified that economic considerations alone caused the
layoff. There is no dispute about the fact that all employ-
ees who were laid off were told that they were laid off
solely because of economic considerations. Evidence that
the layoff was because of union activity is too meager
and uncertain to support the complaint. Evidence that
the layoff was because the employees asked for a raise,
almost is nonexistent, and is inadequate to support the
complaint.
D. Post layoff Activity
Fink testified that a couple of days after the layoff he
was at the yard and saw new employees hauling local
TRlI-SIAt: M()I()R IRANSII COMPANY 1047
freight, one employee of whon was a Phoenix local
driver whom he knew. Fink further testified that he saw
local drivers Smith, Herbert Powell, Wayne Powell,
Dave Powell, Deal, and Gannett, who had not been laid
off and who were working, and that he saw Wes Stc-
vens, the mechanic, working. Fink said he talked with
Joe Daub, who did the West Coast hiring, and Daub said
Respondent was looking for employees for the Pocatello,
Idaho, office and they would be glad to have him there.
Fink said he called Perkins, in Joplin, and asked for a
transfer to Pocatello, and that Perkins replied "absolutely
not."
Brandes testified that he was in the yard after the
layoff, and saw an outside mechanic (nonemployee of
Respondent) working on an unfinished brake job that
Russ Thomas, who was laid off August 14, had been
working on. However, Brandes testified on cross-exami-
nation that the outside mechanic did overflow work and
other work that Respondent's mechanic could not do.
Sargent testified that Respondent had no local drivers
in September, and that two Powells, Wayne and David,
were recalled in October as local drivers but were pri-
marily for yard work. Sargent said local drivers, two in
number, have remained the same at all times to the pres-
ent; that the number of lease drivers has continued to
rise;'9 that business has not increased since 1979; and
that lease drivers are being used on local hauls. Sargent
testified that the number of local runs has not increased
since last year, and that the two local drivers are all that
is needed. Sargent testified that no driver has been
brought in from Phoenix, or any place else, to replace
any driver who was laid off.
19 Resp Exh. 2.
Sargent was a credible witness. It is found that the
local drivers who were laid off were not replaced, and
that two of those drivers were recalled in October.
Upon the basis of the foregoing findings of fact and
the entire record, I make the following:
CONCI t SIONS 01 I. W
1. Respondent Tri-State Motor Transit Company is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Genera! Truck Drivers, Warehousemen & Helpers
Union Local 467, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America,
is a labor organization within the meaning of Section
2(5) of the Act.
3. Respondent did not, through alleged acts, violate
Section 8(a)(1) and (3) of the Act, and Respondent did
not in any manner interfere with, restrain, or coerce its
employees in the exercise of the rights guaranteed in
Section 7 of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 20
It having been found and concluded that the Respond-
ent, Tri-State Motor Transit Company, has not engaged
in unfair labor practices, the complaint herein is dis-
missed in its entirety.
20 In he e ent no exceptions are filed as pros ided by Sec 10)2 46 of
the Rules and Regulations of the National Labor Relations Board. the
findings, conclusions, and recommended Order herein shall, as prosided
in Sec 102 48 of the Rules and Regulations, be adopted b) the Board and
become its findings. conclusions. and Order. and all obiection, thereto
shall be deemed waived fir all purposes