Wolverine Express, Inc.

National Labor Relations Board - Board Decisions

Apr 20, 1970

182 N.L.R.B. 30 (N.L.R.B. 1970)

30 DECISIONS OF NATIONAL I ABOR RELATIONS BOARD
Wolverine Express , Incorporated and Chicago Truck Driv
ers, Chauffeurs & Helpers Union of Chicago and Vicini-
ty (Independent ) Case 13-CA-9067
April 20 1970
DECISION AND ORDER
BY MEMBERS FANNING BROWN AND JENKINS
On October 15 1969, Trial Examiner David S David-
son issued his Decision in the above entitled proceeding
finding that Respondent had engaged in and was engaging
in unfair labor practices and recommending that it cease
and desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision
The Trial Examiner also found that Respondent had
not engaged in certain other unfair labor practices alleged
in the complaint, and recommended that such allegations
be dismissed Thereafter, Respondent and the General
Counsel filed exceptions to the Trial Examiner's Decision
together with supporting briefs, and Respondent also
filed a reply to the General Counsel's exceptions
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con
nection with this case to a three member panel
The Board has reviewed the rulings of the Trial Exam-
iner made at the hearing and finds that no prejudicial
error was committed The rulings are hereby affirmed
The Board has considered the Trial Examiner's Decision,
the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner
ORDER
Pursuant to Section 10(c) of the National Labor Rela
tions Act, as amended, the National Labor Relations
Board hereby adopts as its Order the Recommended
Order of the Trial Examiner, and orders that Respondent,
Wolverine Express, Incorporated, Oak Lawn, Illinois,
its officers, agents, successors and,assigns, shall take
the action set forth in the Trial Examiner's Recommend-
ed Order
MEMBER JENKINS, concurring in part and dissenting
in part
While I agree that Respondent violated Section 8(a)(1)
of the Act by engaging in coercive interrogation, I
do not agree with the Trial Examiner's conclusion, which
my colleagues have adopted, that the evidence does
not establish that Koval's discharge violated Section
8(a)(3) of the Act
The record shows that for at least several months
prior to Koval's discharge, Respondent had been dissat-
isfied with the sales operation at its Chicago terminal
and that the matter had been discussed on several occa
sions, with possible courses of action ranging from
cutting costs by reducing its three-man sales force by
one to terminating and replacing all three salesmen
However, no decision in this regard had been reached
by the early part of the week of April 14, 1969, when
union representative Cullatta requested Koval to sign
a union authorization card thus kicking off the Union's
efforts to organize Respondent's salesmen A few days
later Cullatta approached salesman Newell, informed
him that the Union was trying to organize Respondent's
salesmen, and knowing that Newell formerly had been
with Respondent in a management capacity, wondered
if Newell reported both the Union's approach to him
and the organizational intent to Terminal Manager
O'Connor who, in turn, relayed the information to Sales
Manager Johns and Vice President Nykamp On Friday,
April 18 after Cullatta again had solicited Koval's signa
ture, Koval met with the other two salesmen informed
them that Cullatta had left union application cards with
him, and, after an inconclusive discussion of the matter,
also told them that he `had the applications should
they be interested " On the following Monday, April
21 Respondent decided to reduce its sales force by
one but made no firm decision as to which salesman
would be released
The next day, the three salesmen met with Cullatta
and one of the Union's business agents After discussing
union benefits, the agent requested the salesmen to
sign the application cards which he had handed to them
At this point Newell left the meeting in order to keep
a previous engagement Koval and salesman Berndt,
however, remained and signed the cards Later this
same afternoon, Newell, who evidently felt an obligation
to keep Respondent informed of the Union's activities,
again sought out O'Connor to whom he related this
latest incident Newell also told O'Connor that he was
now quite sure that the salesmen were being organized,
and that, while he had not signed a card, he was of
the definite opinion that Koval and Berndt had Newell
then repeated the foregoing, first to Johns, whom O'Con-
nor had called into his office for this purpose, and
later to Nycamp According to Nykamp, the decision
to terminate Koval was also made on this same after-
noon Koval was discharged on the following morning,
which was in the middle of both a workweek and a
pay period, assertedly because Respondent's review of
the salesmen's records showed that he was the least
productive salesman
Berndt learned of the discharge from Koval while
the latter was cleaning out his desk Shortly thereafter,
Berndt was summoned to Johns' office where Johns
stated that he "supposed" Berndt knew "what had
happened " Upon receiving an affirmative reply, Johns
said he had to ask Berndt a question, specifically asked
Berndt "If I had signed it [a union card] also," and
upon receiving another affirmative reply, stated that
it was kind of sudden, wasn't it "
The Trial Examiner found, in effect, that despite
the weakness of the evidence to support Respondent's
contentions that it was economically motivated in reduc
ing its sales force at that time by one, and that Koval
was selected for discharge because he was the least
productive salesman, the evidence adduced by the Gener-
al Counsel nevertheless failed to establish the violation
I do not agree
182 NLRB No 9
WOLVERINE EXPRESS, INC
While Respondent may have been dissatisfied with
its sales operation , that dissatisfaction was accompanied
by months of indecision and was not resolved until
after Respondent had learned from Newell that the
Union was attempting to organize its salesmen It was
not until then that Respondent firmly determined to
reduce its sales force by one This reduction , moreover,
was effectuated only after Newell had told Respondent
that while he had not joined the Union, he believed
that Koval and Berndt had Koval was then immediately
discharged without notice and in the middle of both
a workweek and a pay period , contrary to normal buss
ness practice The record discloses that the average
daily revenues earned at Respondent ' s Chicago terminal
had steadily increased during Koval ' s employment and
continued to do so after his discharge , and additionally
there was no substantive evidence establishing the need
for Respondent ' s precipitous action '
I would find , therefore, that Respondent ' s assigned
reason for discharging Koval is pretextual , and that
it was motivated by antiunion and not economic consider-
ations I would further find that by discharging Koval,
Respondent not only interfered with his Section 7 rights,
but also engaged in a deliberate effort to undermine
the Union ' s organizing campaign, and, since it knew
at the time of Koval' s discharge that Newell had not
joined the Union, thereby effectively dissipated the
Union ' s majority status I would also find that Respond-
ent's unlawful interrogation of Berndt was conducted
in such a manner as to convey to him the impression
that there was a distinct connection between the sales-
men's union activity and Koval ' s discharge, thus further
evidencing Respondent 's true motivation Inasmuch as
I have concluded that Koval was discharged for engaging
in union activities , I would also find that his level
of productivity was not the motivating factor in his
discharge
Accordingly, I would find that the General Counsel
has established , by a preponderance of the evidence
that Respondent discharged Koval because of his union
activities , in violation of Section 8(a)(3) and (1) of the
Act
' The sole reason given by Respondent for abruptly discharging Koval
is that Respondents president previously had stated that he wanted
the sales costs reduced and the sales program cut down
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
DAVID S DAVIDSON, Trial Examiner Pursuant to
a charge filed on April 24, 1969, by Chicago Truck
Drivers, Chauffeurs & Helpers Union of Chicago and
Vicinity (Independent), referred to herein as the Union,
the complaint in this case issued on June 11, 1969
The complaint alleges that on April 23, 1969 , Respondent
interrogated employees about their union activities and
discriminatorily discharged Daniel Koval in violation
of Section 8(a)(1) and (3) of the Act In its answer,
31
Respondent denies the commission of any unfair labor
practices
A hearing was held before me in Chicago , Illinois,
on July 22, 1969 At the close of the hearing oral
argument was waived, and the parties were given leave
to file briefs which have been received from the General
Counsel and Respondent
Upon the entire record in this case , and from my
observation of the witnesses and their demeanor, I make
the following
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF RESPONDENT
Respondent , a Michigan corporation , maintains an
office and terminal facility in Oak Lawn , Illinois, where
it engages in motor truck transportation operations which
constitute a link in the chain of interstate commerce
from which it annually receives a gross revenue in
excess of $1,000 ,000 I find that Respondent is an employ-
er engaged in commerce within the meaning of the
Act and that assertion of jurisdiction herein is warranted
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Introduction
Respondent, a general commodities carrier , has its
home office at Muskegon, Michigan, and operates 14
trucking terminals Its terminal located in Oak Lawn,
Illinois, known as the Chicago terminal , is the only
location involved in this proceeding The Chicago termi-
nal is managed by John O'Connor Also located at
the Chicago terminal are the offices of George Nykamp,
vice president in charge of sales and traffic, and Ralph
Johns, sales manager for the system At the Chicago
terminal, Respondent employs approximately 90 employ-
ees most of whom are represented by the Union or
Local 710 of the International Brotherhood of Teamsters
Respondent ' s past relations with the unions representing
its employees have been good In March 1969, the
two dispatchers employed at the terminal , who had
previously been unrepresented , signed applications for
membership in Local 710 , and Respondent granted recog-
nition to Local 710 as their representative In April
1969, the Union sought to organize the three salesmen
then employed at the terminal The issues herein arise
out of that organizational effort
B The Organization of Respondent 's Salesmen
Early in the week of April 14, 1969 , Tony Cullatta,
the Union ' s steward at the Chicago terminal, spoke
to Daniel Koval, one of Respondent ' s salesmen, near
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Koval's desk in the general office.' Cullatta told Koval
that the Union had signed up the sales representatives
of another trucking line about a week earlier and asked
if Koval and the other salesmen would be interested
in signing with the Union. Koval told Cullatta that
he would think about it.
On Thursday or Friday, April 17 or 18, Cullatta
approached Robert Newell, another salesman, and told
him that the Union was trying to organize the salesmen
Cullatta said that he knew Newell had been formerly
employed in a management capacity by Respondent
but wondered if Newell would be interested Newell
replied that he would be interested in talking about
it.
Later that afternoon, Newell voluntarily went-to Ter-
minal Manager O'Connor and told him that he had
been approached by the Union that morning and that
in his opinion the Union was going to try to organize
the salesmen. O'Connor relayed this information to Sales
Manager Johns and Vice President Nykamp
On Friday, April 18, Cullatta again spoke to Koval
at his desk and again asked him if he and the other
salesmen would be interested in -signing with the Union.
Koval replied that they were still considering it. Cullatta
gave him an envelope with three blank application cards
and asked him to consider, it further and talk to the
other salesmen about it. Later that afternoon, in the
office area Koval talked to the other two salesmen
about Cullatta's request. They indicated that they were
still undecided about joining the Union.
On Tuesday morning, April 22, Cullatta again spoke
to Koval at his desk. He asked Koval if he could
meet Cullatta at a restaurant so that he could explain
the union benefits. They agreed to meet later that morning
at a nearby restaurant, and Cullatta asked Koval to
invite the other salesmen to join them. Koval spoke
to Newell and Berndt, and they agreed to accompany
him to the restaurant.
During the conversation at the restaurant, some ques-
tions arose which Cullatta was uncertain he could
answer, and Cullatta called Union Business Agent Motas-
sa who joined the group shortly thereafter. After further
discussion, Motassa handed the salesmen application
cards which he asked them to sign. At about this time
Newell left the meeting because of a luncheon appoint-
ment, taking the unsigned card with him. After Newell
left, Koval and Berndt conversed briefly and decided
to sign the cards. They signed them and returned them
to Motassa. The meeting then ended.
Later that afternoon, Koval called Motassa to ask
that notification of the salesmen's action be withheld
from the Company until after their next payday because
he believed that a pay increase might be forthcoming
as a result of a periodic wage review.
Also that afternoon, between 4 and 5 p.m. Newell
returned to the terminal and again on his own initiative
spoke, to O'Connor. Newell told O'Connor that he was
quite sure the salesmen were being organized, that he
' Much of the testimony in this proceeding was uncontradicted Except
where otherwise indicated my findings are based on such testimony
was of the opinion that two of them had signed, and
that he felt an obligation to tell the Company what
was going on. During their conversation Newell de-
scribed the meeting which had been held that morning,
and O'Connor asked Newell if he had signed a card.
Newell told O'Connor he had not signed a card because
of the conditions under which he had returned to the
Company. O'Connor told Newell that he had better
repeat to Sales Manager Johns what Newell told him,
and O'Connor called Johns into his office for that pur-
pose After repeating to Johns what he had told
O'Connor, Newell left the office, and after a few minutes
went to Vice President Nykamp's office where he again
repeated his report to Nykamp 2
C. The Discharge of Koval
On the following morning, April 23, Koval reported
to the office about 8:30. Shortly after his arrival, he
received a telephone call from Johns telling him to
report to his office. Koval went and found Johns,
Nykamp, and O'Connor there. Johns told him that they
had to cut expenses in the Company, that they were
going to let one of the salesmen go, and that he was
chosen for dismissal. Koval asked if that was the only
reason for his discharge. Johns replied that was all
he could tell him. Koval persisted with his question,
and Nykamp replied that they had taken a survey of
individual revenues and that his was below par. Koval
then said that he would drop his bombshell, or words
to that effect, and said that he had signed with the
Union the previous day and, was going to report his
discharge to them. Nykamp commented that this fact
did not alter their decision and that the discharge still
stood. O'Connor stated that they had not received noti-
fication from the Union. Koval said that Respondent
would hear from them shortly, and he left.
Koval returned to his desk and then remembered
that he had not been paid. He returned to Johns' office
to ask for his pay, and Johns told him he would call
the Company's home office in Muskegon and have his
checks there the next day.
Employees 2were scheduled to be paid every other
Friday for the 2-week period ending the previous Friday
However, the checks often arrived from Muskegon and
2 These findings are based on the testimony of Newell, a former
terminal manager, sales manager, and salesman for Respondent, who
was reemployed as a salesman at the Chicago terminal in late 1967
O'Connor denied asking Newell whether he signed a card, and Johns
and O'Connor both denied that O'Connor called Johns into his office
so that Newell could tell Johns directly what he had reported to O'Con-
nor, but they conceded that O'Connor advised Johns that afternoon
of Newell's report Newell impressed me as a forthright witness whose
recollection of these events seemed clear and who had no reason
to invent his testimony On the other hand, O'Connor in his testimony,
while ultimately conceding that Newell had told him his opinion that
the other salesmen were going to sign with the Union, sought to
minimize that part of the report as unimportant, and initially testified,
as did Nykamp, that Newell did not tell him that the salesmen had
signed O'Connor did not add until cross-examined that Newell offered
his opinion that the other salesmen would sign Johns testified that
he received no indication from O'Connor that anyone had signed a
card I have concluded that the testimony of O'Connor, Nykamp,
and Johns was influenced by their desire to minimize Newell's report,
and I have credited Newell',s version as more accurate
WOLVERINE EXPRESS INC
were distributed a day early Friday, April 25, was
a scheduled payday
D The Interrogation of Berndt
When Koval returned to his desk to clean it out,
Berndt was present , and Koval told him that he had
just been fired A few minutes later by telephone Johns
called Berndt to his office Berndt went there, where
he found Johns alone Johns said that he supposed
Berndt knew what had happened Berndt said that he
did Johns then said that he had to ask Berndt a question
Berndt said that he had figured that Johns asked him
"Did you sign , also," or words to that effect Berndt
replied affirmatively, and Johns asked if it was not
kind of sudden 3 Berndt told him he had been thinking
about it for a while, and explained that the Union
offered a good deal with respect to pensions and that
it was a form of security Johns said that he could
not say anything one way or the other , and Berndt
left '
E Respondent 's Explanation for Koval's Discharge
Respondent contends that it was pure coincidence
that Koval ' s discharge occurred concurrently with the
salesmen ' s union activities Rather , according to its wit
nesses, the discharge was a result of a decision made
on April 21 to lay off one salesman for economic reasons
followed on April 22 by the selection of Koval for
layoff as the least productive of its salesmen Respond-
ent's witnesses all testified that they had no knowledge
that Koval or Berndt had signed cards for the Union
until after Johns informed Koval of his discharge
There are three elements to this explanation which
require examination First is the asserted economic basis
for the decision to layoff a salesman Second is the
basis for the selection of Koval Third is the sequence
of management meetings and decisions culminating in
the discharge
I The evidence as to the reason for the layoff
The evidence as to the basis for the decision to
lay off a salesman is scant Respondent ' s witnesses
testified that the decision to lay off was made at a
management meeting on the afternoon of April 21 attend-
ed by Nykamp, Johns, Respondent ' s President Diamond,
and Vice President McElwde, 5 Nykamp testified simply
that they decided at this meeting to reduce the sales
force in Chicago by one, but made no firm decision
as to which salesman should be released According
3 Berndt testified that he understood Johns to mean it was a surprise
to him
" There is no essential dispute between the testimony of Berndt
and Johns as to this conversation According to Berndt Johns asked
him Did you sign also According to Johns he asked I just wondered
if you had signed up with the union He testified that Berndt also
said he felt kind of bad about it and that he and Koval were going
to tell him about it voluntarily that morning because they felt they
owed it to him Johns testified that he told Berndt that it was quite
a suprise that they signed
5 0 Connor was present for part of this meeting when other matters
were discussed but left before the sales situation was discussed
33
to Nykamp, he expressed his view that Koval's work
was not satisfactory , but the decision to release him
was left open because of O'Connor' s absence Johns
also testified that the decision to reduce the sales force
was made during the meeting , but that there was "really
not" any discussion of particular individuals who might
be selected for discharge at the time , and that the
discussion focused on whether the department should
be reduced based on need of sales and cost reduction,
without reference to any individual salesman
Neither Nykamp nor Johns was questioned further
on direct or cross-examination as to the content of
the discussion which culminated in the decision to reduce
the sales force However , in support of that decision
evidence was adduced that , over the past few years,
the sales force at Chicago had fluctuated and sales
had steadily increased At the time of Koval's hire
in September 1966, one other salesman , Ed Newell,
was employed Ed Newell left about a month later
but was shortly replaced by another salesman, Aiken
Aiken remained with Respondent for about a year, and,
in the fall of 1967 about the time Aiken left , Robert
Newell was hired At around that time Nykamp came
to Chicago and acted as sales manager along with his
other duties At that time Respondent was dissatisfied
with the cost-revenue relationship at Chicago, and
Nykamp sought to increase outbound loads to reduce
the hauling of empty trailers away from Chicago and
to increase revenues In February 1968, Johns was hired
as sales manager for Respondent ' s system with offices
in Chicago In late April or May 1968, Berndt was
hired as a salesman , and the sales force remained at
three for approximately a year until Koval was dis-
charged As of the time of the hearing Koval had not
been replaced
Nykamp testified that , from the time he came to
Chicago in October 1967 until the hearing in this case,
average daily revenues increased with some regularity
from slightly less than $6 ,000 to $9,000 or slightly more
Nykamp testified that he believed that , in April 1969,
the average daily revenue was in the area of from
$8,000 to $8,700 , and that it continued to increase after
Koval' s discharge Nykamp expressed the opinion that
the continuing increase was attributable to increased
freight from old customers and the addition of new
customers , but not from better efforts by the salesmen
Apart from this evidence as to the reasons for the
decision to layoff, Johns testified on cross-examination
when asked why the decision to lay off Koval was
implemented in the middle of a workweek , that Respond-
ent's President Diamond had previously said that he
wanted sales costs reduced and the sales program cut
down According to Johns the dismissal of a salesman
had been discussed several times in the previous 4
or 5 weeks h O'Connor also testified that 2 or 3 weeks
earlier, in a dinner conversation with Vice President
McElwde, McElwde had indicated that he was not sat-
isfied with the Chicago sales program According to
O'Connor no specifics were discussed , but McElwde
I The content of these discussions was not further explored in the
examination of Johns
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mentioned as possibilities termination and replacement
of all the salesmen.
2. The evidence as to the reasons for selecting Koval for
layoff
All three of Respondent's witnesses testified that they
believed Koval was the appropriate man for release
because his record of production was inferior to that
of the other two salesmen. According to Nykamp, during
the period that he served as sales manager he was
dissatisfied with Koval's production, and at the time
of Johns' hire he recommended to Johns that Koval
be discharged. However,,Johns indicated that he wanted
to work with Koval to see if he could develop him
into a desirable employee.
There is evidence that at that time Koval expressed
concern over the possibility that he might be discharged.
Newell testified that Koval told him he feared being
discharged because he was not doing a good job. Koval
conceded that he felt uneasy over his future prospects
at that time. Initially he testified that he could not
recall why but later testified that his uneasiness was
caused by fear that Johns would come in with a new
broom. I credit Newell.
It is conceded that, after Johns became sales manager,
Koval's work improved.' According to Nykamp in early
1969, he again began to feel that Koval was slipping
and he discussed the matter with Johns. However,
Nykamp conceded that he did not talk to Koval about
it. Although Johns testified that Nykamp again spoke
to him about Koval's work at that time, he conceded
that he had not been critical of Koval's work on many
occasions in the year before his discharge, and that
it was perhaps more than 3 months before Koval's
discharge when he last criticized his work.
In explanation of the selection of Koval, Nykamp
testified that, between the Monday meeting and making
the selection of Koval, he referred to records which
showed the monthly and yearly amounts produced by
the accounts of the three salesmen which Nykamp peri-
odically reviewed. Nykamp testified that, based on the
review and his business judgment, he concluded that
Koval's accounts were not producing in accord with
their potential. He explained that this conclusion did
not necessarily mean that the dollar volume of Koval's
accounts was less than that of other salesmen, but
meant that they did not reflect the potential of which
in his judgment the accounts were capable. Nykamp
did not have the revenue records with him at the hearing
and could not testify as to the figures they showed.
He testified, however, that there were no records which
reflected the potential of an account and there was
no way to prove the potential of an account. Nykamp
also testified that, although there had been a substantial
increase in Koval's accounts, in his opinion it was
not at a level consistent with the overall increase in
Respondent's business. Nykamp testified that he consid-
ered Newell a desirable salesman because of his back-
ground and Berndt excellent in performance and poten-
tial.
Johns and O'Connor also testified that they recom-
mended Koval for discharge. Johns testified that from
his review of revenue records he would say that Koval's
accounts had not increased as much as those of the
other salesmen, but that the potential of his accounts
was as great as those of the others. He also testified
that in his opinion Koval would not have been discharged
absent a decision to reduce the work force. He testified
that he agreed to Koval's selection for that reason.
O'Connor was not questioned as to his reasons for
recommending Koval.
3. The sequence of events
As set forth above, Nykamp and Johns testified that
the decision to lay off was made during a, meeting
on the afternoon of April 21. According to Nykamp,
he was uncertain when that meeting had been scheduled,
but "guessed" that it had been scheduled the preceding
Monday. O'Connor testified that he was notified of
the meeting on the previous Friday by McElwde, who
said that he and Diamond would be in Chicago on
April 21 to talk about several items, including sales."
Newell had spoken to him about the union activities
before his conversation with McElwde, but O'Connor
testified that he did not recall telling McElwde about
it at that time. The meeting plans were made by tele-
phone, and there was no written agenda for the meeting.
Nykamp testified that the decision to discharge Koval
was made on Tuesday afternoon, after his review of
the revenue records, discussion with O'Connor, and
additional conversation by telephone with Diamond.
Johns exhibited some uncertainty in his testimony
as to when the decision was made, and testified that
he could not recall whether it was before or after he
heard of Newell's report of the salesmen's meeting.
Johns testified that "all of us" played an equal role
in the decision to discharge Koval, that he talked to
Nykamp and O'Connor about the decision, and that
"we had a joint meeting together" on Tuesday when
the final decision was made."
O'Connor testified that he was first advised concerning
the possibility of a reduction, of the sales force on
Monday evening in a telephone call from McElwde.
According to O'Connor, McElwde started by reminding
him that 2 or 3 weeks earlier they had discussed the
sales problem or situation in Chicago and then said
that at the meeting that afternoon "we got quite serious
' Apart from direct concessions to this effect, it appears that annually
in April or May, Respondent reviews wages In 1968 a number of
employees, including Koval, received increases, which according to
Nykamp essentially reflected cost-of-living increases A review was
made in April 1969, but none of the salesmen were then given increases
and it apparently was not completed until after Koval's discharge
t O'Connor testified that it was possible that plans for the meeting
had been made earlier without his knowledge
" Initially Johns was asked on cross-examination if he "received"
the decision from Nykamp and answered affirmatively I do not regard
as significant the inconsistency between that reply and his later testimony
on redirect examination, set forth above, as to how the decision was
made
WOLVERINE EXPRESS , INC. 35
about this particular matter and we are going to make
a change in Chicago ." O'Connor testified that McElwde
then asked him, "[W ]hat is your opinion as to what
we should do in Chicago if, we decide to take one
salesman out of there . Which man do you think it
should be ." According to O'Connor , he expressed the
opinion that it should be Koval , and McElwde said
that after he spoke with Johns and Nykamp that evening
or on the following day to get their opinions the decision
would be final.
O'Connor also testified that , during the telephone
conversation , McElwde asked him questions about "any-
thing that I might know about any problem that was
arising" and that he mentioned that Newell had told
him he had been approached by a union steward.
F. Conclusions
The evidence set forth above presents a close question
as to Koval ' s discharge . There is evidence to support
the contention that Koval was discharged to destroy
the Union ' s possible majority among the salesmen, but
is not overwhelming . The factors supporting that conten-
tion are Respondent ' s knowledge of the union activities,
the timing of the discharge , the efforts of Respondent's
witnesses in their testimony to play down their knowl-
edge and interest in the union activities , and the interro-
gation of Berndt . Thus, before Koval was discharged,
through Newell Respondent became aware that Koval
and Berndt were likely to sign union cards but that
Newell would not do so. Koval ' s discharge followed
hard on the heels of Newell ' s report , without notice
and in the middle of a workweek . While precipitous
discharges and layoffs for cause are not unknown, the
haste with which Respondent implemented the decision
to layoff a salesman allegedly based on a desire to
cut costs does raise suspicion . In several respects
Respondent ' s witnesses in their testimony unconvincing-
ly sought to minimize their interest and concern over
the salesmen ' s union activities , indicating greater con-
cern over the salesmen ' s activities than they cared to
admit . Johns' interrogation of Berndt immediately after
Koval ' s discharge can be construed as linking the dis-
charge to the union activities10 as well as displaying
Respondent ' s concern over them.
Yet there is not only an absence of evidence of
antiunion animus, apart from that which may be drawn
from the interrogation , but Respondent has a history
of dealing with unions without any evidence of inclination
to interfere with employee self-organizational rights.
While the interrogation of Berndt may be construed
as supplying the missing evidence of hostility , the inci-
dent is not without ambiguity . The testimony uniformly
shows that during Koval's discharge interview,, until
he dropped his "bombshell ," there was no mention
of the Union , and that, when he did , Respondent's
representatives disavowed that this information affected
'" Johns first asked Berndt if he knew what had happened, apparently
referring to Koval ' s discharge , and then asked Berndt if he had also
signed a card
his discharge . Perhaps they were merely good actors
who had prepared themselves to respond to a likely
"bombshell," but, if so, it seems unlikely that Johns
would have jeopardized the success of their act by
engaging in needless interrogation of Berndt and disclos-
ing what had been deliberately concealed from Koval.
In these circumstances , resolution of the issue as
to Koval depends substantially on the extent to which
the General Counsel succeeded in supporting his conten-
tion that the reasons advanced for Koval' s -discharge
by Respondent were pretextual . As I have indicated
above, the evidence as to the economic cause for the
decision to layoff a salesman was scant and conclusionary
in nature. Evidence as to sales experience was oral
and not supported with evidence from Respondent's
records. Yet little attention was focused in cross-exami-
nation on the basis for the decision that costs and
the sales program needed to be reduced . There was
no objection to Nykamp' s testimony based on his memo-
ry as to Respondent ' s sales experience , and there was
no request made that Respondent produce records to
document this aspect of its decision . In addition, both
Johns and O'Connor testified that the matter had been
discussed by them with headquarters' officials on earlier
occasions before the union activities of the salesmen
had begun. Although one could wish for greater detail
to aid in analyzing the validity of Respondent ' s claims
that the decision to reduce the work force was economi-
cally motivated, one cannot conclude that the testimony
on its face was either so improbable or so inadequate
as to warrant its rejection.
The testimony as to the reasons for selecting Koval
as the salesman to be released is even less vulnerable.
While it is true that a request was made for documentary
support for Nykamp' s testimony, the request was not
pursued , and no reason was advanced to discount
Nykamp' s claim that sales records on their face would
reveal little without subjective interpretation . Although
Johns' testimony leaves in some doubt Nykamp 's claim
that he again became dissatisfied with Koval in early
1969, there is little doubt that Koval's work was regarded
as unsatisfactory a year earlier when Johns became
sales manager . Bearing in mind that Respondent does
not claim that Koval would have been discharged for
cause but only that he was selected for layoff as the
poorest of the three salesmen , I find insufficient cause
to reject the testimony in support of that claim.
There remains for consideration whether the testimony
as to the sequence of events and decisions culminating
in Koval' s discharge gives support to the claim of pretext.
Here there are superficial discrepancies in the testimony,
but in my view they are insufficient to cause its rejection.
Although both Nykamp and Johns testified that they
discussed the selection of Koval with O'Connor before
the decision to discharge Koval was made , O'Connor
testified only that he discussed the matter by telephone
with McElwde who said that he would speak further
with Johns and Nykamp and make the decision final.
However, O'Connor was never asked if he discussed
the matter further with Nykamp or Johns after his
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
telephone conversation with McElwde 11 Although
Johns' testimony as to the final decision was not entirely
consistent, it is difficult to attach weight to the inconsis-
tencies 12
In sum, although I have found some factors to support
an inference of discrimination in the circumstances sur-
rounding Koval's discharge, in my view they are not
sufficient to carry the General Counsel's burden of proof
without a further showing that the explanation offered
by Respondent for Koval's discharge disclosed its pretex
tual nature While my view of Respondent's explanation
might have differed had the other factors in this case
been strong enough to shift the burden to Respondent,
I conclude that weaknesses in its explanation were not
so great as to cause me to reject the explanation and
find support for the complaint in its rejection For these
reasons, I conclude that, while the circumstances sur-
rounding Koval's discharge raise substantial suspicion
as to Respondent ' s motivation , a preponderance of the
evidence does not support the conclusion that his dis-
charge was caused by his union activities
There remains for consideration the interrogation of
Berndt Its lawfulness does not turn upon Johns' intent
in questioning him but upon the tendency of Johns'
conduct to interfere with, restrain, or coerce Berndt
in his union activities That the interrogation had such
a tendency appears from its circumstances and its rela-
tion to Koval's discharge Thus, the interrogation was
not casual , but Johns , Respondent ' s sales manager,
called Berndt to his office expressly for that purpose
and only for that purpose Johns prefaced his question
by calling Berndt ' s attention to the discharge of Koval,
and then asked if he signed a card also Whatever
Respondent's actual reasons for discharging Koval, the
manner of Johns' questioning conveyed the impression
that there was a connection between Koval's discharge
and his signing of a union card In view of Johns'
position with Respondent , the locale and the deliberate
nature of the interrogation, the impression conveyed
that the interrogation was related to Koval's discharge,
and the fact that Berndt was one of the two remaining
salesmen among whom the union activities occurred,
I conclude that the interrogation of Berndt violated
Section 8(a) (1) of the Act
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the Respond-
ent's operations described in section I, above have
11 Although 0 Connor in answer to one question stated that there
was no meeting on April 22 in apparent conflict with Johns testimony
from the context in which the question was asked it appears that
O Connor w is referring tot meeting with Diamond McElwde Nykamp
and Johns and not i meeting of Respondent s Joe it officials
12 Johns testified initially that the decision to discharge Koval was
made in the late afternoon then testified that he didn t know what
time it wis made and finally testified that he could not recall but
that it was made in late morning or e'irly afternoon After rereading
Johns testimony I am inclined to believe that these discrepancies
were as likely to have flowed from a failure of recollection as any
other source
a close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce
V THE REMEDY
Having found that Respondent violated Section 8(a)
(1) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act Having
found that the discharge of Daniel Koval did not violate
the Act, I shall recommend that the complaint otherwise
be dismissed
Upon the basis of the above findings of fact and
the entire record in this case, I make the following
CONCLUSIONS OF LAW
1 Wolverine Express, Incorporated, is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act
2 Chicago Truck Drivers, Chauffeurs & Helpers
Union of Chicago and Vicinity ( Independent) is a labor
organization within the meaning of Section 2(5) of the
Act
3 By coercively interrogating an employee concerning
his union activities, Respondent has engaged in and
is engaging in unfair labor practices affecting commerce
within the meaning of Sections 8(a) (1) and 2(6) and
(7) of the Act
RECOMMENDED ORDER
Upon the basis of the above findings of fact, conclu-
sions of law, and the entire record in the case, and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, I recommend that Respondent Wol-
verine Express, Incorporated, and its officers, agents,
successors , and assigns, shall
I Cease and desist from
(a) Coercively interrogating employees with respect
to their union or concerted activities
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their rights to self-organization, to form labor organi-
zations, to join or assist Chicago Truck Drivers, Chauf-
feurs & Helpers Union of Chicago and Vicinity (Inde-
pendent), or any other labor organization, to bargain
collectively through representatives of their own choos-
ing, and to engage in any other concerted activities
for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such
activities, except to the extent that such rights may
be affected by an agreement requiring membership in
a labor organization as a condition of employment
as authorized in Section 8(a)(3) of the Act, as modified
by the Labor-Management Reporting and Disclosure
Act of 1959
WOLVERINE EXPRESS, INC 37
2 Take the following affirmative action which is nec-
essary to effectuate the policies of the Act
(a) Post at its Oak Lawn, Illinois, place of business
copies of the attached notice marked "Appendix "13
Copies of said notice, on forms provided by the Regional
Director for Region 13, after being duly signed by
Respondent's authorized representative, shall be posted
by it immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted Reasonable steps shall be taken
by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material
(b) Notify the Regional Director for Region 13, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith 14
IT IS FURTHER RECOMMENDED that allegations in the
complaint not found to have been sustained in the Deci-
sion herein be dismissed
WE WILL NOT question employees about their
union activities or membership
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights to self-organization,
to form labor organizations, to join or assist Chicago
Truck Drivers, Chauffeurs & Helpers Union of
Chicago and Vicinity ( Independent), or any other
labor organization, to bargain through representa-
tives of their own choosing, and to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or
to refrain from any and all such activities, except
to the extent that such rights may be affected
by an agreement requiring membership in a labor
organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as modified
by the Labor-Management Reporting and Disclosure
Act of 1959
13 In the event no exceptions are filed as provided by Section 1(12 46
of the Rules and Regulations of the National Labor Relations Board
the findings conclusions recommendations and Recommended Order
herein shall as provided in Section 102 48 of the Rules and Regulations
be adopted by the Board and become its findings conclusions and
order and all objections thereto shall be deemed waived for all purposes
In the event that the Board s Order is enforced by a Judgment of
a United States Court of Appeals the words in the notice reading
Posted by Order of the National Labor Relations Board shall be
changed to read Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations
Board
11 In the event that this Recommended Order is 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 Respondent has taken to comply herewith
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WOLVERINE
EXPRESS,
INCORPORATED
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's Office,
881 U S Courthouse and Federal Office Building, 219
South Dearborn Street, Chicago, Illinois 60604, Tele-
phone 312-353-7572