Max Francis Trucking

MAX FRANCIS TRUCKING 395 3. By interfering with, restraining, and coercing employees in the exercise of their rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4 All the nonsupervisory production employees in the Respondent 's machine shop constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act 5. The Union on February 23, 1959, was , and all times thereafter has been, the exclusive bargaining representative of all employees in such unit for the purposes of collective bargaining. 6. By refusing to bargain collectively with the Union as the exclusive repre- sentative of its employees in an appropriate unit on and after February 26, 1959, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 8. The Respondent has not violated Section 8(a)(1) of the Act by soliciting employees to withdraw from the Union or by aiding them in effecting such withdrawals. [Recommendations omitted from publication.] Max Francis, d/b/a Max Francis Trucking and Teamsters Local 886, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 16-CA-1037. April 25, 1960 DECISION AND ORDER On January 25, 1960, Trial Examiner Sidney Lindner issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that said complaint be dismissed, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions, and a supporting brief. Pursuant to the provision's of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations. [The Board dismissed the complaint.] INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding , brought under Section 10 (b) of the National Labor Relations Act, as amended (61 Stat. 136), was heard in Enid, Oklahoma, on August 5 and 6, 127 NLRB No. 52. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1959, pursuant to due notice, with all parties represented by counsel and participating in the hearing. The complaint issued July 2, 1959, by the General Counsel of the National Labor Relations Board I and based on a charge duly filed and served, alleged in substance that the Respondent had engaged in unfair labor practices proscribed by Section 8(a) (3) and (1) of the Act by reason of the following: (1) On or about March 24, 1959, the Respondent discharged Henry Zaremba and Leo Hoagland because of their membership in and activities on behalf of the Union. (2) Prior and subsequent to the discharges of the employees named above the Respondent stated to his employees that if they went union he would park every truck he had and further the Respondent engaged in the interrogation of employees regarding their union activities. In its answer the Respondent denied the allegations of unfair labor practices. Briefs were received from counsel for the parties on September 25, 1959, and have been duly considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent Max Francis, doing business under the trade name and style of Max Francis Trucking, by virtue of the laws of the State of Oklahoma, has its principal office and place of business in Enid, Oklahoma, where it is now and has been at all times material herein continuously engaged in the transportation of produce, feed, and related products. In the course and conduct of its business operations during the past 12-month period, which period is representative of all times material herein, the Respondent transported produce, feed, and related products from the State of Oklahoma to points outside the State and derived income therefrom in excess of $50,000. The complaint alleged, the Respondent's answer admits, and I find that the Respondent is engaged in commerce within the meaning of the Act. If. THE LABOR ORGANIZATION INVOLVED Teamsters Local No. 886, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Henry Zaremba was reemployed by the Respondent for the third time in July 1958. He worked steadily thereafter until he was discharged on March 24, 1959. Zaremba was a second driver until September 1958, at which time he was promoted to first driver.2 Zaremba testified that in July 1958 while he was second driver with Otis Polsen, they talked about the fact that they were getting tired of having to work on the truck when it returned to Enid, thus giving them little time at home. They won- dered whether union membership would help them in this regard, and also afford them more rights, such as seniority. They discussed the advisability of talking to other drivers to arouse their interest in union participation, but did not pursue the idea. Zaremba further testified that in or about mid-January 1959 he began talking with second drivers who were running with him, and to other drivers he met at truck stops, in an effort to get them interested in union participation. In February 1959, while on a trip in Colton, California, Zaremba talked with drivers Lee,3 Patterson, and Watkins, about organizing a three- or four-man committee among Respondent's drivers, to assist them in the solution of some of their problems. If the committee did not work out, they would consider joining the Teamsters. Sometime in March, Zaremba told drivers Watkins, Robertson, and Patterson while they were in New 1 The General Counsel and his representatives at the hearing are referred to herein as the General Counsel, and the National Labor Relations Board as the Board. 2 The first driver is paid $130 a trip, an amount slightly more than the second driver. He is In charge of the truck and responsible for its operation. He is entrusted with the trip expense money. He contacts Max Francis about the loads and determines the places to load and unload. The second driver shares the driving with the first driver. While one Is driving, the other is usually asleep in the cab sleeper. The second driver also assists in the physical work of loading, unloading, and changing tires. s Lee, called as a Respondent witness, testified that grievances were talked about and that there was "lots of talk" among the drivers. MAX FRANCIS TRUCKING 397 Mexico, that no progress was being made in getting their employee committee started, and they discussed the advisability of talking with the Teamsters. Zaremba stated also that a list of grievances was drafted-which the employee committee, when organized, was going to take up with Max Francis. Zaremba also maintained in his possession two lists, one contained the names of all of Respondent's drivers, the other the names of the drivers with whom he discussed union participation and who showed an interest. While in Oklahoma City on March 23, Zaremba was not successful in his attempt to contact the Teamsters Union and instead talked over his problem with someone at the AFL-CIO office. On March 24, Zaremba reported to Respondent's office to settle accounts of his last trip. Respondent's office is in the back of his home and is in charge of his wife, Helen Francis, who is associated in the business with him. Present also were drivers Herb Friend, Red Fuller, Chester Smith, and Leo Hoagland who were seated in chairs along the office wall. Helen Francis was figuring some bills at her desk, when driver Maurice Yoder came in, occupied the seat at Max Francis' desk, and began mimicking and mocking Max Francis. Zaremba testified that some of the other drivers chimed in sand voiced certain complaints and gripes. After this went on for awhile, Helen Francis, according to Zaremba, said that Max was sick and had been going to see a physician, and that "he is getting tired of hearing all of this talk, complaining and griping." Helen Francis reprimanded Yoder for his actions there and told him, "we hear you have been complaining about your loads, too. We've got a pretty good grapevine here. Anything that goes on we hear in this office." Helen Francis then told the drivers in the office that if they did not like it there, they could quit and get their checks. Helen Francis settled up with Zaremba, gave him two $100-expense checks for his next trip together with the invoices that he was to follow for loading and unloading. Zaremba left the office and went home. Zaremba testified that in the afternoon of March 24, he and Leo Hoagland went to the Wage and Hour Division office in Enid, but did not find the representative there. Later, in the company of their respective wives, they drove downtown to make some purchases, when they met Yoder. Zaremba and Leo Hoagland told Yoder of their effort to see the Wage and Hour representative and also told him that a meeting was to be held at Leo Hoagland's house that night to "start getting this union to rolling." 4 At about 7 p.m. that evening, Don Francis, brother of Max and supervisor of Respondent's garage, called at Zaremba's home to pick up the expense checks which he had previously received for his next trip. Zaremba asked why. Don Francis said he did not know. Zaremba, Herb Friend, Leo Hoagland, and their wives met at Leo's home that evening. It was at this time that they learned also that Leo Hoagland had been discharged by Max Francis late that afternoon. Zaremba and Leo Hoagland called the Teamsters Union and arranged to meet with Business Representative Frank Booher, and his assistant, Hyden, on March 26 or 27. The following day, Zaremba in a telephone conversation with Max Francis inquired if the latter wanted him to come to the office to talk to him. Max Francis told Zaremba there would be no need for his coming to the office since he was letting him go. Max Francis also remarked, "you are not happy here." On the night of March 26, Zaremba and Leo Hoagland met with Booher and Hyden and were given application cards for union membership. On March 27, and for some time thereafter, Zaremba and Leo Hoagland stationed themselves at the Superior Service Station in Enid and as Respondent's drivers stopped there to have their trucks serviced en route to Wichita, Kansas, to deliver return loads, they were spoken to about joining the Union. Zaremba admitted that he never had any union application cards prior to this time. He also admitted that neither he nor any of the employees met with Max Francis about their grievances. 4 Leo Hoagland, according to Zaremba, said they would use his house as a meeting place. Leo Hoagland did not appear as a witness in this proceeding In fact, at the opening of the hearing, counsel for Respondent moved to dismiss the complaint insofar as it alleged that Leo Hoagland was discriminatorily discharged, setting forth as grounds that Leo Hoagland had come to his office on his own free will and volition and requested Attorney Carter to prepare an affidavit which recited that "after mature reflection, he does not feel that he has been discriminated against by said employer," and requests the Board's Regional Director that he be permitted to withdraw the charge against Max Francis. The motion was denied. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Max Francis testified, corroborated by his wife, that when he returned to his office, from the physician's office on the afternoon of March 24, his wife was upset and told him what had occurred there that day. After some discussion of the men involved, particularly the fact that all of these men (with the exception of Red Fuller) were the same men who in the past had been costing them money, in that Respondent did not make any profits from their trips, he agreed with her that Respondent should get rid of some of them. They discussed and mutually agreed to lay off Zaremba and Leo Hoagland immediately. Zaremba for the reasons that his expenses were running higher than other drivers, he was not keeping his truck clean, and he was consistently running "black oil"; 5 Hoagland because he could not make the grade as a first driver, he was a "hotrodder," he did not take care of the truck and he refused to unload the truck. They also discussed laying off the other men as soon as they could be replaced. It is axiomatic that an employer may discharge any employee for any reason or no reason , but he may not lawfully discharge any employee for engaging in union or concerted activities. Knowledge by the employer of a dischargee's union mem- bership or support is a prerequisite to a finding of discriminatory discharge. See Howard Aero, Inc., 119 NLRB 1531. In an effort to prove that Respondent had knowledge that Zaremba and Leo Hoagland had engaged in concerted activities, the General Counsel adduced evidence from Herb Friend who had been a driver in Respondent's employ from January 1959 until about April 10, 1959. Friend testified that the day after the above- noted discharges, he spoke to Max Francis on the telephone from the Superior Service Station about going out with a load. In the course of the conversation, Max asked him what he thought about the meeting with the boys. Friend acknowledged that he was there, because he had been invited. Max, according to Friend, then said he had to let Zaremba and Leo Hoagland go "on account of-the meeting we had-kept drivers slowed up." Max mentioned that he had to keep his trucks going. Max inquired how Friend felt about the Union. Friend replied he was with it, whichever way it went, since he had to work. Friend further testified that in a second telephone conversation while he (Friend) was in California, Max Francis inquired what he thought about the Union, and he merely repeated what he told Max Francis previously, "if it went union [I] was for it because [I ] had to work." Max Francis, according to Friend , then said "if it went union he'd have to park his trucks because he couldn't pay the wages." Inquiry as to when the above-noted conversation took place, gave rise to the following answer, "well, I don't remember the exact day, but it was just the trip-the same trip that everybody met over there and I was in California when it happened. I talked to him on the phone in California." Friend quit Respondent's employ sometime between April 10 and 15. He testified that on the day he quit he was in the garage and Respondent was having trouble with a truck. Max Francis remarked "he wished the whole outfit would sign union cards and if they did he would fire the whole bunch of them." Max Francis denied that any of the drivers told him about the activities of Zaremba and Leo Hoagland before they were discharged. He testified that he learned of the meeting at Leo Hoagland's house from Herb Friend, who so advised him voluntarily after the men were fired. Max Francis further testified that he became aware of union-organization talk among Respondent's drivers about a day or two after the discharges of Zaremba and Leo Hoagland. He stated he was advised that the said men were at the Superior Service Station and as Respondent's trucks stopped there for servicing before proceeding to their return-load destination, Zaremba and Leo Hoagland detained the drivers by talking to them about organizing into the Teamsters. Max Francis testified that Herb Friend called him on the tele- phone from California after Zaremba and Leo Hoagland commenced meeting Re- spondent's trucks at the Superior Service Station and talking union to the drivers. This was the occasion when he told Friend that the men had been discharged. Max Francis denied making the statement that he wished his drivers would join the Union so that he could fire all of them and park his trucks. He explained that he was at the garage on a Sunday morning awaiting the arrival of truck No. 27, which was then being driven by Dale Robertson and which was having trouble. Friend was in the garage at the time and while they were talking about the truck, Friend said, "Max, he's going to tear up your truck if you don't get him off of it." Friend 5 Black oil is created primarily by speeding or by lugging the truck. Lugging is a term used when the truck is not shifted into the next lower gear when going up hills. Zaremba admitted occasions when Max Francis complained about the oil being black in his truck and also that he did not keep his truck clean. MAX FRANCIS TRUCKING 399, also suggested that he be assigned as the driver of truck No. 27. Max Francis told Friend that he would talk to Robertson when he came in and then said "You guys are going to ruin me. The engines you are tearing up, the trouble we are having, the tires you are blowing for driving 70 miles an hour. You are going to force me to lock the thing up and park every truck I have." Max Francis denied the Union was mentioned in this conversation. Friend admittedly had a short memory. His, testimony was inconsistent with the testimony of Zaremba regarding the drivers. who attended the meeting at Leo Hoagland's house. It is also apparent from the record that Friend confused a union application card with a mailed ballot in a Board election. Moreover, Friend admitted telling Max Francis at the garage that driver Robertson's truck was "winding too tight" and was causing trouble. I do not accept Friend's testimony. I find, based on the testimony of Max Francis which I credit, that the incidents and conversations with Friend took place substantially as testified to by Francis. Paul Hoagland, a driver for Respondent and brother of Leo, was called by the General Counsel and testified that prior to the discharges of Zaremba and Leo he did not know anything about their attempts either to organize an employees' com- mittee or a union He did recall that about a month before the discharges Leo men- tioned a list of grievances that "they" were going to present to Max Francis. He admitted that he never saw such a list. Paul Hoagland also testified that on or about March 27 he spoke on the telephone with. Max Francis from Amarillo, Texas, to obtain instructions regarding a return load. Max Francis told Paul he had discharged Zaremba and Leo and suggested that he (Paul) not come through Enid with the return load. Paul wanted to know "why?" Max explained that Zaremba and Leo would probably be at the Superior Service Station and want to talk to him and since Respondent's customer was in a hurry for the return load, he preferred that Paul not take the time to engage in such conversations. After some further discussion about the suggested alternate route and the fact that Paul and Leo had their own lives to hve and that what took place between Max and Leo was of no concern to him, Paul prevailed on Max that the Enid route was best and Max agreed. Upon further questioning whether Max told him why Zaremba and Leo were fired, Paul replied that Max used the term "organize." His further testimony on this point is lacking in clarity.6 Finally in answer to a leading question Paul stated that Max said he fired the men because they were organizing. The General Counsel relying upon Paul's testimony contends that Max Francis thereby admitted that Zaremba and Leo were discharged for "organizing." There is about Paul's testimony such an element of uncertainty as to the exact words spoken by Max Francis and particularly the context in which the word "organize" was said by him, that I am reluctant to find from such testimony that Max Francis admitted to Paul that he discharged Zaremba and Leo Hoagland because of their concerted or union activities. I am further constrained not to place such reliance upon Paul's testimony especially as his affidavit, prepared when his memory of what Max Francis said was fresher than it was months later at the hearing, does not conform to Paul's account at the hearing. In the affidavit which Paul affirmed was a truthful account of what he had reported to the Board's field examiner and which contained the entire conversation, there is no reference to the claimed admission of Max Francis, that he had discharged Zaremba and Leo Hoagland for organizing. The word "organize" does appear but in an unrelated context which I do not construe as an admission of culpability by Max Francis for the unlawful discharges of Zaremba and Leo Hoag- land Finally, I am convinced from Max Francis' clear, emphatic testimony on this point,7 that Paul erroneously interpreted their conversation. I find that Max Francis e For example : Q. Well, did Max specifically tell you or answer your question as to why? A. Why what? Q. Why they were fired? A. Not necessarily. I wouldn't say that he specifically said organize , which he didn't say the Union. He didn't say organize the men themselves . He just said organize and that was all. Q. Well, how did he use the term? A. Hub? Q. How did he use the term organize? A. He said, "I fired Leo and Tony," and he said, "they were organizing" which he didn't say how, what, when or where. 7 Max Francis testified he told Paul that he discharged Zaremba and Leo Hoagland and that they were out at Superior Service Station instigating and troublemaking and talking 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did not tell Paul he discharged Zaremba and Leo Hoagland because they were organizing. True the timing of the discharges of Zaremba and Leo Hoagland raises a suspicion that discriminatory action was taken against them . But suspicion is not proof and a finding of violation of the Act cannot be based on suspicion alone. Valencia Service Co., 103 NLRB 1190. Other than the testimony of Friend, set forth in detail above, which I have not credited, the record contains no background 8 or context of union animus or antiunion activity on the part of the Respondent. Upon the foregoing and the entire record I am convinced and find that the General Counsel has not sustained his burden of proving by a preponderance of the evidence that Zaremba and Leo Hoagland were discharged for the reasons alleged in the complaint. I adopt Respondent's proposed findings of fact Nos. 1, 2, 3, 4, 5, and 7 and pro- posed conclusions of law Nos. 1, 2, and 3 and will recommend that the complaint herein be dismissed in its entirety. CONCLUSIONS OF LAW 1. The operations of the Respondent, Max Francis, d/b/a Max Francis Trucking constitute and affect trade, traffic, and commerce among the several States within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Local 886, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2 (5) of the Act. 3. The Respondent has not engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. [Recommendations omitted from publication.] union to the boys. He further explained to Paul that because of the situation at Superior it would slow things up to come through Enid and he did not want to hold up the return load. 8 For purposes of background only the General Counsel was permitted to adduce testi- mony from Zaremba that In August 1957, while he and driver Robertson were unloading a truck In Oklahoma City, Max Francis said, "if the boys ever wanted to deal their selves [sic] out of a job, that's all they had to do was to vote in the union and they would-, because he would park every truck." Max Francis truthfully explained that in his type of operation, he hauls cheap commodities and in order to realize a profit he had to have close control of the drivers. He admitted he may have said that he could not abide by any regulations and that he would be forced to park the trucks because he would not be able to pay the wages. Such statement was more In the nature of a prediction rather than antiunion. Victory Construction Co. and Franklin C. Butler Construction and General Laborers' Union Local No. 758, Inter- national Hod Carriers', Building and Common Laborers' Union of America, AFL-CIO and Kenneth R. Brooks Construction and General Laborers' Union Local No. 758, Inter- national Hod Carriers', Building and Common Laborers' Union of America, AFL-CIO and . Franklin C. Butler. Cases Nos. 8-CA-1813, 8-CB-347, and 8-CB-348. April 25, 1960 DECISION AND ORDER On September 29, 1959, Trial Examiner Albert P. Wheatley issued his Intermediate Report in the above -entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist there- 127 NLRB No. 57.