Stafford Trucking, Inc.

STAFFORD TRUCKING, INC. 1309 been conducted by the National Labor Relations Board among the employees of Erickson Electric Company within the preceding 12 months. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LoCAL 953, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Members and employees may communicate directly with the Board's Regional Office, 316 Federal Building, 110 South Fourth Street, Minne- apolis, Minnesota, Telephone No. 334-2618, if they have any questions concerning this notice or compliance with its provisions. Stafford Trucking, Inc. and Drivers, Salesmen, Warehousemen, Milk Processors, Cannery Dairy Employees, and Helpers Union, Local 695, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Case No. 30-CA-103. September 17, 1965 DECISION AND ORDER On April 21, 1965, Trial Examiner Thomas S. Wilson issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Charging Party filed exceptions to the Decision and briefs in support thereof, and the Respondent filed exceptions to the Decision and a brief in support of the Decision. 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 connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Brown]. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and finds merit in certain of the General Counsel's and Charging Party's exceptions. Accordingly, the Board adopts the Trial Examiner's findings, conclusions, and recommendations only to the extent consistent with our Decision and Order. 154 NLRB No. 99. 1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner, setting forth at least "one suspicious note" and the possibility that Respondent may have "successfully `lost' or 'destroyed'" evidence proving the validity of Becker's and Immel's testimony, found that the General Counsel had "failed in his burden of proof," that Becker and Immel had been dismissed for discriminatory reasons. We do not agree. This case is similar to The Wm. H. Block Company case, 152 NLRB 594, in that a substantial portion of the evidence revealing Respond- ent's motive in discharging Becker and Immel occurred outside the Section 10(b) period preceding the charge. As we noted in the Block case, such evidence is not thereby removed from our consideration in determining whether these employees were lawfully discharged within the 10 (b) period. The Supreme Court has pointed out that "earlier events may be utilized to shed light on the true character of matters occurring within the limitation period."' Particularizing this prin- ciple, the court cited the rationale adopted by the Board in Axelson Manufacturing Company, 88 NLRB 761, 766, that: "Events obscure, ambiguous, or even meaningless when viewed in isolation may, like the component parts of an equation, become clear, definitive, and informa- tive when considered in relation to other action. Conduct, like lan- guage, takes its meaning from the circumstances in which it occurs. Congress can scarcely have intended that the Board, in the perform- ance of its duty to decide the validity of conduct within the 6-month period, should ignore reliable, probative, and substantial evidence as to the meaning and the nature of the conduct... It is therefore of no special significance in the circumstances of this case that evidence of respondent's antipathy towards Becker and Immel because of their union activity related to occurrences in June or July 1963, more than 6 months before the charge was filed in this case, whereas the actual discrimination against these employees, now alleged to be violative of Section 8 (a) (1), (3), and (4) of the Act, occurred on January 30, 1964, within the 10 (b) period. These earlier events are relevant and probative in shedding light on Respondent's discharge of Becker and Immel assertedly for violation of Com- pany's speed limit rules. This evidence was adduced before the Trial Examiner in Case No. 30-CA-20,2 hereinafter referred to as the prior case, and is fully pertinent in assessing Respondent's motivation in discharging these employees. About the middle of June 1963, Daniel Immel called the Union in Madison, Wisconsin, and asked that someone be sent to talk to the employees who were interested in joining the Union. Thereafter, 1 Local Lodge No. 1424, International Association of Machinists, AFL-CIO, etc. ( Bryan Manufacturing Co.) v. N L.R.B., 362 U.S. 411. 2 Stafford Trucking Inc., 150 NLRB 1036. STAFFORD TRUCKING, INC. 1311 Immel engaged in discussions with other drivers about the Union and passed out membership cards to them. On June 22 a union meeting was held. The night before the meeting Immel had a conversation with Presi- dent Jack Stafford at the Stafford garage. Stafford asked if Immel was going to the big meeting the next day. When Immel said that he was, Stafford asked if he "could live on 40 hours a week." Immel did not answer. Stafford added, "I don't know what you are going to do but I know what I am going to do." In a conversation near Oconomowoc about 3 a.m. on the day of the union meeting, Stafford asked Becker if he was going to the union meeting and Becker replied that he was. Stafford said, "What do those fellows want up there." Becker replied that the employees did not want anything big, but that they had a lot of little gripes and one of them was hospitalization. He mentioned another involving complaints about Stafford's son, Wiley. Stafford admitted telling Becker "right straight, there was nobody going to run his outfit" and, according to Becker's credited testimony, Stafford also said that "if that's what the boys wanted he would have someone up there tomorrow to sign (them) up.' At this point Becker apparently volunteered to call the drivers together to see if he could work out some kind of a deal with them for the Respondent. This he did but "the fellows didn't buy it." So Becker told Stafford "that I can fight you, Mr. Stafford, but I can't fight all the drivers ... whatever the boys do I have to go along with them." Stafford himself testified, "I told my men several of them that if they got into the Union, join the Union, then as far as personal contact between the men and I would be just-that would be it. I have strict rules and anybody who didn't live up to them, they were all done." Based upon the preponderance of the evidence adduced before the Trial Examiner in the above noted prior case, the Board found that the Respondent through its president, Jack Stafford, violated Section 8 (a) (1) of the Act by interrogating and threatening its employees because of their union activity, and by threatening to enforce company rules more strictly and to discharge employees for any infraction thereof if the Union became the bargaining representative. On August 19, Stafford discharged Immel because of his activities on behalf of the Union.3 Thereafter, on September 26, 1963, the Board held a representation election among Respondent's employees. The ballots of Becker, Immel, and two other alleged discriminatees were challenged and were found to be determinative of the final result. 3 See 150 NLRB 1036. The discharge of Becker on July 23, 1963, was also alleged in the complaint. Becker was, however, rehired a month before the hearing was conducted on August 23 , 1963, and the Board ultimately dismissed the 8 ( a) (3) charge as to him. 1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On October 23 and 24, 1963, the hearing was conducted in the prior case. Both Immel and Becker gave testimony to support the General Counsel's complaint. In November, subsequent to the hearing, Re- spondent reinstated Immel. Toward the end of December, Stafford assigned truck number 15 to Becker and only a week thereafter to Immel. Becker complained to Stafford, and Immel to Clifford, Staf- ford's supervisor son, about the gear ratio of this truck making it impossible to drive at the proper engine speed (in revolutions per min- ute (r.p.m)) and at the 50-mile-per-hour speed as instructed by Staf- ford. Becker asked when Stafford was going to have the rear end changed. Stafford stated he knew of the problem, "but we're going to have it done, just watch out for the insurance man.4 Clifford Stafford also agreed that the truck was geared too fast and that the prior drivers also had told him it was geared too fast.,' On January 8, 1964, the Board decided that all the challenged bal- lots, including those of Becker and Immel, should be counted. As a result of this counting, the Union was certified as the exclusive bargain- ing representative of Respondent's drivers and mechanics. On January 30, Immel phoned the Respondent to find out if he was supposed to work. Clifford Stafford told Immel to come to the garage and Clifford would have something for him by the time he got there. When he arrived, Jack Stafford met him in the doorway, asked him for his key, and handed him two checks for his services to date. Immel asked him why he was being fired. Stafford replied that he knew why Immel was getting fired but did not tell him anything further. Also, on January 30, Stafford had his son, Clifford, call Becker to the garage for a similar ceremony. Becker asked what was wrong. Staf- ford replied, "You guys have been speeding, you and your buddy." Becker responded, "You have known for over a year that that truck has been driven that way." As was pointed out by the Trial Examiner in the aforementioned prior case, despite Respondent's long-term problems with insurance, its concern for enforcing driving standards coincided in point of time with the appearance of the Union on the scene in June 1963. At that time Respondent's insurance agent requested reports on five of Respond- ent's drivers, including Immel. The reports indicated Immel's driving record to be satisfactory. Becker's driving record up to this time was such that he was not even included in the investigation. In the prior case we found that Stafford had used these reports as pretexts for dis- charging one employee. Respondent now contends it discharged Becker and Immel for driv- ing over 50 miles per hour in truck 15. The Respondent introduced 37 cards, hereinafter referred to as tachometer cards, recording the speed A This is taken from Becker's testimony corroborated in part by Stafford who admitted Becker had talked to him about the problem. 5 Immel so testified. Clifford Stafford did not testify. STAFFORD TRUCKING, INC. 1313 of truck 15 during its operation by Becker and Immel to establish that both Becker and Immel drove truck 15 at 55 miles per hour. Becker and Immel admitted this. Walker, who drove truck 15 fora year before the assignment to Becker and Imnnel, testified that he, too, drove the truck at 55 miles per hour. Immel testified that all drivers who drove this truck prior to his discharge drove it at 55 miles per hour and that, while it was common knowledge among the drivers that Stafford wished them not to exceed 50 miles per hour, this was not thought to apply to truck 15 because of its improper gearing. Becker , Immel, and Walker all explained that the transmission of truck 15 was improperly geared so that when the engine was driven at the proper number of r .p.m.'s for low engine wear, the truck drove at either 55 miles per hour in ninth gear or 45 miles per hours in eighth gear.6 To refute this testimony, Respondent introduced the manufacturer's manual for truck 15 into evidence . We find this manual inconclusive as regards this point . Immel testified that he operated the truck at 2,000 r.p.m. in ninth gear . Becker did not testify specifically to the r.p.m. at which he drove the truck, but he did state he drove in ninth gear and, as his tachometer cards indicate he drove at the same speed as Immel, he too must have operated the truck at approximately 2,000 i.p.m. Walker testified that, throughout the year he drove truck 15, he operated it between 1,900 and 2 ,150 r.p.m. I-Tuber, who drove truck 15 after Becker and Immel were discharged and whose tachometer cards were introduced into evidence by Respondent to establish that truck 15 was driven after Becker's and Immel's discharges at 50 miles per hour, testified that the governed speed of the motor was 2,150 r.p.m. and the correct speed for operating it was 10 percent below that speed. Immel, however, gave unrefuted testimony that the tachometer of truck 15 had written on it that the governed speed for the motor of truck 15 was 2,350 r.p.m. The manual, contrary to all these witnesses who drove the truck for extended periods of time and contrary to the indicated gov- erned speed for the truck on its tachometer dial, states that the governed speed for the type of motor in truck 15 is 2,100 r.p.m. The manual fur- ther states that on a level highway the truck should be operated at 10 to 20 percent below the governed speed. We have some doubt of the appli- cability of this governed speed to truck 15. This doubt is founded not only on the truck's tachometer marking and the testimony of the wit- nesses but also on the record which established that truck 15 was equipped with an overdrive transmission and that the gearing for an d Stafford testified that drivers are paid for a predetermined number of hours on each run they make, and he admitted that it is greatly to their advantage to make a trip faster. Though Huber, whose tachometer cards were used to show truck 15 could be driven at 50 miles per hour ( discussed in detail hereinafter ) was, for no explained reason, made an exception to the general policy in that he was paid by the hours actually worked, the practice of driving truck 15 at 55 miles per hour rather than 45 miles per hour was established long before Becker and Immel were assigned to it, as is established in the record by the testimony of walker and Stafford. 206-446-66-vol. 154- 84 1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD overdrive transmission is different from the gearing fora regular trans- mission. No distinction regarding overdrive transmission was made in the manual. Furthermore, even were we to find the manual to be appli- cable to truck 15, in its later pages it states with regard to operation on a grade that the driver should "never allow the engine r.p.m. to drop more than 10 percent below the governor at full throttle before [shift- ing]." Becker's and Immel's operation of truck 15 at 2,000 r.p.m. was therefore in accord with the manual 's instruction for operation on hilly terrain. In a further effort to refute Walker's, Becker's, and Immel's testi- mony that truck 15 was geared incorrectly for driving properly at 50 miles per hour, Respondent produced only one tachometer card of another employee, Huber, dated within the period of operation of truck 15 by Becker and Immel. While this card did show that the truck it was taken from had been operated at approximately 50 miles per hour, it was marked as having been taken from vehicle No. 10. Stafford testi- fied that this number designated the trailer and that the card had been taken from truck 15. He so concluded because truck 15 was "the one he always drives. Most of my men have their own tractors." When asked if it was possible that Huber could have driven another one that day, he responded : "It's very unusual because they like to hang on to the one that they got because they keep them shined up and wash them up." This testimony is contrary to fact as up until January 30, the day of their discharge, truck 15 was shared between Becker and Immel. Other evidence also indicates the tachometer card records Respond- ent submitted could well have been inaccurate . For example, more than one tachometer card covers the same hours on the dates of January 10 and 15. Also, Becker testified without contradiction that he was first assigned truck 15 in the week prior to Christmas and yet almost a third of the tachometer cards Respondent submitted in evidence to prove he was driving truck 15 at 55 miles per hour were dated in the first half of November, one as early as November 1. Respondent submitted tachometer cards only from truck 15 to prove Becker and Immel were speeding. Becker testified, without contradic- tion, that he had driven truck No. 6 the night before his discharge, and had asked Stafford, when he was told he was being discharged, to take the tachometer card from that truck to see that he had not driven it over 50 miles per hour. Stafford refused to show the tachometer card to Becker or even to take it out of the truck at that time. When the Gen- eral Counsel attempted to subpena additional tachometer cards at the hearing, Respondent stated that all additional tachometer cards had been destroyed. We question why, as early as November 1, well over a month prior to the time either Becker or Immel had been assigned truck 15, Respond- ent started to save tachometer cards from truck 15 and introduced them STAFFORD TRUCKING, INC. 1315 as records of Becker's driving habits despite the fact that Becker was not assigned to that truck until near the end of December. Why were both Becker and Immel almost simultaneously selected to drive truck 15? Why was Walker allowed to operate truck 15 at 55 miles per hour for a year prior to any union organization activity without being dis- charged for speeding? Why did both Becker's and Immel's driving records become bad only after they were assigned truck 15? One must answer these questions in the light of Stafford's earlier threat to enforce company rules more strictly and to discharge employees for any infrac- tion thereof if the Union became the bargaining representative. We can only conclude that Respondent made good its threat by assigning truck 15 to two strong union supporters knowing that they would drive it as others had before them, at 55 miles per hour. Respondent used their driving rules infractions as a pretext to cover the real reason for their discharges; namely, their successful activities in seeking represen- tative status for the Union. Accordingly, we find that Respondent vio- lated Section 8(a) (3) and (1) of the Act by discharging Becker and Immel in the circumstances revealed in this record. As the remedy for Respondent's violation of Section 8(a) (3) of the Act is identical to the remedy for a violation of Section 8(a) (4) of the Act, we find it unnecessary to pass upon the question of whether Re- spondent also discharged Becker and Immel because they had testified against it in the prior case. The Trial Examiner also found that Respondent's unilateral institu- tion of an insurance program did not constitute a refusal to bargain in violation of Section 8(a) (5) "because such a policy could always be canceled." We do not agree. As found by the Trial Examiner, prior to the beginning of the Union activity in May 1963, at a birthday celebration for Staff ord, Stafford announced that he had a surprise for his employees. Shortly thereafter an announcement of the negotiation of an insurance contract was posted on the bulletin board and the men were asked to sign up for new insur- ance. The cost was to be prorated between Respondent and the men in a proportion of two to one. At this time so few of the drivers signed up for coverage under the policy that it never went into effect and, accord- ing to Stafford's testimony, the notice was apparently removed from the wall.? As noted above, on January 8, 1964, the Union was certified as the exclusive bargaining representative of the Respondent's employees. The first mention of insurance made thereafter was at the Feb- ruary 12 bargaining session when Union Representative Eaton stated that, among other items, a paid welfare program was necessary to reach an agreement. 4 This finding is based on Stafford 's reference in his testimony to the insurance plan Huber sought for the employees as being "the one that I had had on the wall." 1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD By letter dated March 5, employee Huber, stating that he was writing on behalf of all the drivers, requested a meeting with Stafford on March 7. At this meeting, which was held within a day or two there- after, the drivers requested Respondent to secure insurance for them. After consulting with his attorney and his insurance agent, Stafford put into effect the previously proposed insurance program by handing out applications to the drivers. Then, at a bargaining session on March 16, after the institution of this insurance program, Respondent's attorney, Davis, stated that the Company intended to propose an insur- ance program fully paid for by the employer and that it did not intend to make any improvements in wages. On April 7, Stafford told the Union for the first time that Respondent had put its joint contribution plan into effect on March 10. On June 2, Stafford concluded the last meeting the Employer had with the Union to the date of the hearing by announcing that "my men are satisfied with what they got, they got the insurance and thats all they want." A more blatant case of bypassing a union and awarding benefits directly to the employees could not exist. To accept the Trial Exam- iner's reasoning that "such a policy could always be canceled" and therefore its institution cannot be considered as a refusal to bargain would be to permit any employer unilaterally to institute any benefit so long as that benefit could be subsequently canceled. As we can per- ceive of no benefit once unilaterally granted by an employer, which could not equally as well be unilaterally withdrawn, this reasoning opposes all prior authority which recognizes that such unilateral actions undermine the authority of a union to represent employees and tend to destroy the collective-bargaining relationship. What better illustration of such destruction could one have than that in the present case where the Respondent concluded the final bargaining meeting with the announcement that it had given the employees directly everything that they wanted and had nothing further to discuss with the Union? Respondent argues that this was not a unilateral institution of a new term and condition of employment as it had previously offered this policy to its employees. We find this argument lacking in merit as Respondent's original offer lapsed after a reasonable period of time had passed with not enough employees signed up for the policy for it to go into effect and the notice of the offer was removed from the wall. In any event, even if it be assumed that the offer made to employees prior to the Union's certification was a continuing offer, Respondent was duty bound to bargain with the certified representative of the employees concerning its proposal. It could not lawfully bypass such representative by dealing directly with the employees. Accordingly, for the above-noted reasons, we conclude that by its unilateral institution of its insurance program Respondent violated Section 8(a) (5) and (1) of the Act. STAFFORD TRUCKING, INC. 1317 THE REMEDY Having found that Respondent has engaged in the commission of unfair labor practices, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As the two discharges were a result of Respondent's discrimination, we shall order that Respondent offer to Donald Becker and Daniel Immel immediate and full reinstatement to their former or substan- tially equivalent positions, without prejudice to their seniority and other rights and privileges. We shall further order that Respondent make both Donald Becker and Daniel Immel whole for any loss of earnings suffered by reason of the discrimination against them, by payment to them of that sum of money which normally they would have earned from the dates of the discharges to the dates of the offer or actual reinstatement less net earnings, if any, during those periods. Backpay shall be computed with interest at the rate of 6 percent per annum on a quarterly basis in the manner prescribed by the Board in F. JV. Woolworth Company, 90 NLRB 289, and Isis Plumbing c6 Heat- ing Co., 138 NLRB 716. With regard to Immel, certain additional comments are in order. At the hearing Respondent offered to prove that, following Immel's discharge, he had a nervous breakdown and that his condition was such that he would be incapable of resuming his employment with the Respondent. Although based on the offer of proof we cannot deter- mine whether Immel incurred any disability such as would make him incapable of performing his duties as a truckdriver, in directing the normal reinstatement remedy and backpay we have not overlooked such a possibility. Thus, we shall direct reinstatement subject to Respondent's right to discharge Immel should it be established that Immel's physical and mental condition render him unfit for work as a truckdriver. In determining Respondent's liability for backpay. con- sideration should be given to the possibility that Immel's disability may have rendered him unemployable as a truckdriver for a portion of the usual backpay period." Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. In view of the nature of the unfair labor practices found, we find that there exists the danger of commission of further unfair labor practices by the Respondent, and we shall accordingly order that Respondent cease and desist from in any manner infringing upon the rights guaranteed employees in Section 7 of the Act. 8 Roskam Baking Company, 142 NLRB 1173, 1179. 1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ADDITIONAL CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact and the entire record in this case, we hereby delete the Trial Examiner's Conclusion of Law No. 3, and make new Conclusions of Law Nos. 3 through 5 as follows: 3. By discharging Donald Becker and Daniel Immel to discourage membership in or activities on behalf of the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 4. By unilaterally instituting an insurance program for its employ- ees on March 10, the Respondent has engaged in an unfair labor prac- tice within the meaning of Section 8 (a) (5) of the Act. 5. By the aforesaid discriminatory discharges and unilateral insti- tution of an insurance program, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guar- anteed in Section 7 of the Act, thereby engaging in unfair labor prac- tices within the meaning of Section 8(a) (1) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Stafford Trucking, Inc., Portage, Wisconsin, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Drivers, Salesmen, Warehouse- men, Milk Processors, Cannery Dairy Employees, and Helpers Union, Local 695, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any other labor organization, by discharging or otherwise discriminating against employees in regard to hire or tenure of employment or any terms or condition of employment. (b) Refusing to bargain with the above-named Union as the exclu- sive representative of its employees in the unit found to be appropriate for the purposes of collective bargaining. (c) Unilaterally instituting changes in insurance programs or in other terms and conditions of employment of employees in the appro- priate unit represented by the aforementioned exclusive representative. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds is necessary to effectuate the policies of the Act: (a) Offer to Donald Becker and Daniel Immel immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to seniority and other rights and privileges previ- STAFFORD TRUCKING, INC. 1319 ously enjoyed, and make them whole for any loss of earnings suffered by reason of their discharges as provided by that section of this Deci- sion entitled "The Remedy." (b) Notify Donald Becker and Daniel Immel if presently serving in the Armed Forces of the United States of their right to full rein- statement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. (c) Upon request, bargain collectively in good faith with Drivers, Salesmen, Warehousemen, Milk Processors, Cannery Dairy Employees, and Helpers Union, Local 695, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, as the exclusive bargaining representative of its employees in the unit found to be appropriate, with respect to insurance programs and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to determine the amount of backpay due under the terms of this Order. (e) Post at its service building in Portage. Wisconsin, copies of the attached notice marked "Appendix."' 9 Copies of said notice, to be furnished by the Regional Director for Region 30, shall, after being duly signed by the Company's representative, be posted by the Com- pany 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 Company to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 30, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 0In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals, Enforcing an Order". APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT discourage membership in or activity on behalf of Drivers, Salesmen, Warehousemen, Milk Processors, Cannery 1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dairy Employees, and Helpers Union, Local 695, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, or in any other labor organization, by discharging any employee or by otherwise discriminating against employees in regard to hire or tenure of employment or any term or condition of employment, except as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer to Donald Becker and Daniel Immel immediate and full reinstatement to their former jobs and complete restora- tion of their seniority and other rights and privileges and pay them the wages lost by reason of discharge. WE WILL NOT institute changes in the terms and conditions of employment in the appropriate unit herein without first consulting and bargaining with the above-named Union as the exclusive rep- resentative of such employees. WE WILL, upon request, bargain collectively in good faith with the aforementioned labor organization, as the exclusive bargaining representative of our employees in the unit found by the National Labor Relations Board to be appropriate for the purposes of col- lective bargaining, concerning insurance programs and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organiza- tion, to form labor organizations, to join or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right 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 Dis- closure Act of 1959. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named Union, or any other labor organization. STAFFORD TRUCKING, INC., Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) NOTE.-We will notify Donald Becker and Daniel Immel if presently serving in the Armed Forces of the United States of their right to full STAFFORD TRUCKING, INC. 1321 reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Room 230, 744 North Fourth Street, Milwaukee, Wisconsin, Telephone No. 272-3866, if they have any questions concerning this notice or compliance with its provisions. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge originally filed on July 30, 1964, by Drivers, Salesmen, Warehouse- men, Milk Processors, Cannery Dairy Employees, and Helpers Union, Local 695, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, hereinafter called the Union, and thereafter amended on September 8, 1964, and again on October 12, 1964, the General Counsel of the National Labor Relations Board, hereinafter called the General Counsel' and the Board, respectively, by the Regional Director for Region 30 (Milwaukee, Wiscon- sin), issued its complaint dated November 17, 1964, against Stafford Trucking, Inc , hereinafter called the Respondent. The complaint, as amended at the hearing, alleged that Respondent had engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1), (3), (4), and (5) and Section 2(6) and (7) of the Labor Management Relations Act, 1947, as amended, herein called the Act. Copies of the various charges, the complaint, and notice of hearing thereon were duly served upon Respondent and the Union. Respondent duly filed its answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices Pursuant to notice, a hearing thereon was held at Portage, Wisconsin, on Jan- uary 25 and 26, 1965, before Trial Examiner Thomas S. Wilson. All parties appeared at the hearing, were represented by counsel, and were afforded full opportunity to be heard, to produce, examine, and cross-examine witnesses, and to introduce evi- dence material and pertinent to the issues. Oral argument at the conclusion of the hearing was waived. Briefs were received from General Counsel and Respondent on March 3, 1965. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Stafford Trucking, Inc., is a Wisconsin corporation with its principal office and place of business in Milwaukee, Wisconsin, and a dispatch office and garage at Portage, Wisconsin, where it is engaged in the business of local and interstate hauling by truck. During the past year, which is a representative period, Respondent received in excess of $50,000 for furnishing interstate transportation of various materials including silica. During the same period, Respondent received in excess of $50,000 for trucking services performed within the State of Wisconsin for firms engaged in interstate commerce. The complaint alleged, Respondent's answer admitted, and I find that Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Drivers, Salesmen, Warehousemen, Milk Processors, Cannery Dairy Employees, and Helpers Union, Local 695, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization admitting to membership employees of Respondent. 'This term specifically includes the attorney appearing for the General Counsel at the hearing. 1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES A. The discharges of Becker and Immel 1. The facts The instant case is actually a mere continuation of a similarly captioned case, being Case No. 30-CA-20, between these same parties, including the two alleged discriminatees, Donald Becker and Daniel Immel. Case No. 30-CA-20, decided by the Board on January 15, 1965, shows that union organization in an appropriate unit consisting of all Respondent's truckdrivers and mechanics began about the middle of June 1963, with the active assistance of Daniel Immel particularly and with the help of Donald Becker, among others. On June 15, 1963, the Union filed a petition for certification with the Regional Office. Case No. 30-CA-20 actually began with the filing of charges of violations of Section 8 (a) (1) and (3) on July 22 and 25, 1963, when the Union filed its amended charge to include the discharge of Becker on July 24. The complaint therein issued on August 29, 1963, and, in addition to numerous allegations of interference, restraint, and coercion, alleged that Respondent had discriminatorily discharged, among others, Becker on July 24 and Daniel Immel on August 19 in violation of Section 8(a)(3). On September 26, 1963, the Board held an election in the above appropriate unit which proved inconclusive without a determination of the right of Becker, Immel, and two other alleged discriminatees to have their challenged ballots counted in the final result. A hearing on the aforementioned complaint was heard in Portage, Wisconsin, on October 23 and 24, 1963, by Trial Examiner Eugene Dixon. Both Becker and Immel proved to be important witnesses called by the General Counsel at that hearing. On June 17, 1964, Trial Examiner Dixon issued his Decision in said case finding, in pertinent part, interference, restraint, and coercion, and that Respondent had discriminated against both Becker and Immel, among others, and recommending that Respondent reinstate each of them with backpay. Although Respondent took exceptions to the Trial Examiner's Decision on these points, Respondent did reinstate Becker on August 23, 1964, and Immel in November 1964. On January 8, 1964, the Board decided that the challenged ballots should be counted and certified the Union as to the exclusive representative of Respondent's drivers and mechanics. Thereafter negotiating meetings between the Union and Respondent took place on February 4 and 19, 1964, March 3 and 16, April 7, May 13, and finally ended on June 2, 1964. These meetings will be discussed in greater detail hereinafter. Beginning sometime in the month of December 1964, Respondent began assigning Becker and Immel individually to drive Respondent's truck No. 15, an International Harvester tractor with a Cummins diesel engine with a 10-speed road ranger trans- mission . The manufacturer of this tractor in its book of instructions recommended that this tractor be driven between 1,950 and 2,100 r.p.m. It was established at the hearing, and admitted in General Counsel's brief, that it was well known among Respondent's drivers, including Becker and Immel, that the established speed limit for Respondent's trucks on the road was 50 miles per hour. The evidence also established that it was well known by the drivers, Respondent's President Jack Stafford, his supervisors, and Respondent that truck No. 15 was "geared too high" so that 10th gear was seldom, if ever, used and that at 2,100 r.p.m. truck No. 15 ran at a speed of about 55 miles per hour. The evidence also estab- lished that in eighth gear at the recommended r.p.m. truck No. 15 operated about 44 miles per hour. Truck No. 15, like all but one of Respondent's trucks, was fitted with a tachometer which automatically recorded on a card the time, the speed, and the distance traveled by the tractor. It was the duty of the operators of each of Respondent's vehicles to insert a card in the tachometer of his tractor at the beginning of his day's work and to remove the same at the end of the day's work, note the tractor and trailer involved, and sign his name on said card and deposit the card in Respondent's office. Jack Stafford testified that he reviewed these tachometer cards each week. On January 30, 1964,2 Jack Stafford had both Becker and Immel called to the garage by his son, and supervisor, Clifford. Upon their individual arrivals Jack 2 Respondent maintains that the date actually was January 29 based upon the fact that the checks given to Becker and Immel are so dated. Other evidence, such as the telephone company's telephone bills, convinced me that the actual date was January 30. STAFFORD TRUCKING, INC. 1323 Stafford asked each man for his key to the garage and handed each two checks, already prepared and dated January 29, 1964, in full payment for his services to date. When Becker asked why he was being fired, Jack Stafford pointed to truck No. 15 and said that Becker "and his buddy" had been speeding. Becker pointed out that Stafford had known for a long time that truck No. 15 was being driven that way. When Immel asked the same question of Jack Stafford, Stafford, according to the testimony of Immel, "mumbled" something which Immel testified he could not understand. Neither man has since been reinstated. Both Becker and Immel admitted, and the tachometer cards show, that during their operation of tractor number 15, it was being operated about 55 miles per hour a good part of the time. On July 30, 1964, the Union filed its charge with the Board alleging that Respond- ent had discharged Becker and Immel at this time because of their activities on behalf of the Union.3 On January 15, 1965, the Board finally decided Respondent's appeal, deciding in pertinent part that the discharge of Immel had been discriminatory but that Becker had been discharged for cause and affirming Trial Examiner Dixon in his findings of violations of Section 8(a) (1) of the Act. 2. Conclusions Although the Respondent here was proved and found to be very antiunion in Case No. 30-CA-20, General Counsel here acknowledged that he had no evidence of any independent 8(a)(1) violations by Respondent during the period of the instant case . Hence following the last of the negotiation meetings on June 2, 1964, there is no evidence of further violations of the Act by Respondent nor, in fact, any evidence of any union activity among the drivers. There also is no evidence in this record that during their period of reemployment in 1964 either Becker or Immel engaged in any union activity. Of course, Respondent knew that both Becker and Immel had testified before Trial Examiner Dixon on October 23 or 24, 1963, against the interest of Respondent. In the meantime, however, Respondent had reinstated both of them despite such testimony. Under these circumstances it would seem to be a little contrary to the facts to hold here that their discharges so many months after the giving of this testimony was, in fact, caused by such testimony given prior to their reinstatement. Accordingly, I will recommend the dismissal of the charge of violation of Section 8(a) (4) of the Act. The Board's decision certifying the Union in the representation case did come down on January 8, 1964, some 3 weeks before the discharges here in question. It is far from being beyond the realm of possibility that the receipt of the certification of the Union at this time may have revived Jack Stafford's latent antagonism toward Becker and Immel. But this is speculative. On the other hand, however, there is admitted and documentary proof that at least since the middle of December 1963, both Becker and Immel had been violating Jack Stafford's speed limitation in their operation of truck No. 15 by driving the same at least 55 miles per hour. Both Becker and Immel were told that they were being discharged for "speeding," which is a legitimate cause for discharge. Becker and Immel both claimed that due to the fact that truck No. 15 was geared too high, it could not be driven at 50 miles per hour, that they had a choice of driving 55 miles per hour in ninth gear or 44 miles per hour in eighth gear. The subsequent tachometer cards of driver Huber while operating truck No. 15, which he inherited from them, disprove this claim for those subsequent tachometer cards which the Respondent was able to produce show that Huber was able to drive at the 50-mile per hour speed hmit.`i 3 Respondent's first defense is that, as the alleged discriminatees here were discharged on January 29, 1965, the charge filed on June 30, 1964, was thus more than 6 months after the alleged discrimination and thus barred by Section 10(b). Under the usual rules of legal counting and the Board's Rules and Regulations, Series 8, as amended, the first or the last day of a specified time period is not counted and thus, even assuming the discharges to have occurred on January 29, the charge in the instant case would be timely. Accordingly I find this defense to be without merit. 4I am not unmindful of the possibility that Huber was driving truck No. 15 at 50 miles per hour under dire compulsion from Respondent , and also that Respondent may have successfully "lost" or "destroyed" all cards showing truck No. 15 doing more than 50 miles per hour because of the relatively few cards which Respondent was able to produce at the hearing. 1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is one suspicious note. Jack Stafford checked these tachometer cards every week so that he knew that Becker and Immel were exceeding his speed limitation regularly and over a long period of time. Yet there is no evidence, as one would have anticipated there would be, that Stafford ever specifically warned Becker or Immel of the possibility of discharge for future violations. Stafford also knew the propensities of truck No. 15. However, as the burden of proof is on the General Counsel to prove the discharges discriminatory, I may not indulge in speculation and must, therefore, on this record hold that General Counsel has failed in his burden of proof. Hence, I will recom- mend that the allegations of the complaint as they relate to the discharges of Becker and Immel be dismissed. B. The refusal to bargain 1. The facts Sometime in May 1963, and thus prior to the beginning of the union activity among Respondent's drivers, Respondent's employees gave Jack Stafford a "surprise" birthday party. Stafford was so pleased that at the party he announced that he had a "surprise" for the drivers in that he was negotiating an insurance policy to cover the drivers. Sometime thereafter, an announcement of the negotiation of this insurance con- tract was posted on the bulletin board and the men were asked to sign up for the same. The cost was to be prorated between Respondent and the men in a proportion of two to one. At this time so few of the drivers signed up for coverage under the policy that the policy never went into effect. After the certification of the Union on January 8, 1964, the Respondent repre- sented by Jack Stafford or his attorney, Walter S. Davis, and the Union represented by its business representative, Donald Eaton, commenced negotiating a labor agree- ment on February 4, 1964. At the second negotiation meeting on February 19, the Union was asked what it would take to settle on a contract. In answer to this the union representative mentioned several items including a paid welfare program. By letter, over the signature of driver Huber dated March 5, 1964, a number of the Respondent's drivers requested a meeting with Jack Stafford. At this meeting, which was held within a day or two thereafter, the drivers requested Respondent to secure insurance for them. Stafford agreed to do so. On or about March 10, 1964, Respondent reintroduced the same insurance plan it had offered the previous year with the employer paying two-thirds of the cost and the employees the other third. This time sufficient drivers signed up for the program for it to go into effect as of that time. At the fourth negotiation meeting on March 16 Davis for the Respondent announced that the Company intended to propose an insurance program fully paid for by the Respondent but did not intend to make any wage improvements. At the fifth negotiation meeting on April 7, Stafford announced that he had had a meeting with some of the drivers and as a result thereof he had put his insurance plan into effect as of March 10 This was followed by some discussion of the cost and benefits of Respondent's insurance program as compared with the Teamsters Union plan referred to as the Wisconsin area health and welfare plan I. Eaton testified that during this meeting of April 7 Jack Stafford stated in reference to this plan I, "I can't consider your program for at least a year." 5 At the conclusion of this meeting Eaton agreed to forward to Respondent a copy of the Wisconsin area health and welfare plan 1.6 At the next negotiation meeting on May 13 Eaton testified that a "comment was made that Jack [Stafford] has put into effect an insurance program and is paying part of it." This apparently was the extent of any discussion of insurance at this time. The last negotiation meeting was held on June 2, 1964, and, according to Eaton, "the meeting wound up by Jack saying, my men are satisfied with what they got, they got the insurance and that's all they want " That was the final meeting between Respondent and the Union. 6 Stafford denied making any such comment. He further testified that Attorney Davis had told Eaton that insurance plans were always negotiable 61n view of the Union's action in forwarding Respondent a copy of plan I after Stafford allegedly had stated that he could not consider such a plan for a year, I am constrained to hold that Stafford did not make the remark attributed to him and that Davis did remark that insurance plans were always negotiable Otherwise, I do not be- lieve that plan I would ever have been forwarded to Respondent. PALESTINE TELEPHONE COMPANY 1325 On October 12, 1964, the Union amended its charge to allege for the first time a refusal to bargain on this insurance issue. 2. Conclusions The determination of the refusal to bargain allegation here depends, as I see it, on whether Jack Stafford ever made the remark attributed to him by Eaton to the effect that Stafford "could not consider your [the Union's] program for at least a year." Assuming that remark to have been made with finality, it would indicate that Respondent considered insurance to be an issue closed to the negotiations with the institution of Respondent's own program and hence a refusal to bargain with the Union upon a bargainable issue. As indicated, I do not believe that Stafford made the remark at the May 13 meeting in view of the fact that, even after the remark had allegedly been made, Eaton forwarded the Union's plan I to Respondent for its consideration, thus indicat- ing that Eaton himself did not consider that Stafford's remark was the final word on the subject. The actual institution of Respondent's insurance program cannot be considered as a refusal to bargain on the insurance issue because such a policy could always be canceled. Indeed, if Respondent's witness is to be believed, even after the institution of Respondent's program had been announced, Attorney Davis purportedly agreed that insurance was always a bargainable issue. Eaton's own description of the negotiations on insurance proves quite conclusively that he failed to press the negotiations on that issue, to put the case as strongly in the Union's favor as is possible. So far as his own testimony shows, Eaton never again mentioned plan I after forwarding a copy thereof to Respondent for its perusal. In other words, even under its own testimony, it appears that the Union was willing to rest its proof of a refusal to bargain on one short inconclusive sentence rather than to put the issue of the refusal to bargain to a conclusive test as could so .easily have been done. I am loath to find a refusal to bargain based, as here, upon a single, perhaps misunderstood, remark. Consequently, with the burden of proof still upon the General Counsel, I must hold that the General Counsel has failed to carry that burden and, therefore, will recommend the dismissal of the allegations regarding a violation of Section 8(a) (5) of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Drivers, Salesmen, Warehousemen, Milk Processors, Cannery Dairy Employees and Helpers Union Local 695, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 2. Stafford Trucking, Inc., is engaged in commerce within the meaning of Section 2(7) of the Act. 3. Respondent has not engaged in any unfair labor practices within the meaning ,of Section 8(a) (1), (3), (4), or (5) of the Act. RECOMMENDED ORDER I recommend that the complaint in the instant matter be dismissed in its entirety. Palestine Telephone Company and International Brotherhood of Electrical Workers, AFL-CIO, Local Union No. 702. Case No. 14-CA-3495. September 20, 1965 DECISION AND ORDER On May 4, 1965, Trial Examiner Herman Tocker issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices within the meaning 154 NLRB No. 110.