Takin Bros. Freight Line, Inc.

118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 our employees that: 11"E wiLL NOT refuse to bargain collectively with International Union of United Brewery, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related mariner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. \VE WILL, upon request, bargain with the above-named Union, as the exclusive representative of all employees in the bargaining unit described below with respect to wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All route salesmen, helpers, contact salesmen, advertising and merchandising men, warehousemen, and draft beer line cleaner, but excluding guards, office clerical employees, watchmen, mechanics, and supervisors as defined in the Act. S. H. LYNCH AND COMPANY, INC., Emnployer. 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. Employees may communicate directly with the Board's Regional Office, Sixth Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas 76102, Telephone 335-4211, Extension 2145, if they have any questions concerning this notice or compliance with its provisions. Takin Bros. Freight Line, Inc. and Kenneth J. Smith. Case 13- CA-7063. Jubj 8,1966 DECISION AND ORDER On April 11, 1966, Trial Examiner Arthur Christopher, Jr., issued Iris Decision in the above-entitled proceeding, finding that Respondent 160 NLRB No. 13. TAKIN BROS. FREIGHT LINE, INC. 119 had engaged in and was engaging in certain 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. Thereafter, Respondent filed exceptions to the Trial Exam- iner's Decision and a supporting brief.' The General Counsel filed a reply brief. Pursuant to the provisions of Section'3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Jenkins and Zagoria]. The Board has reviewed the rulings of the Trial Examiner 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, the briefs, and the entire record in the case, and hereby adopts the findings,2 conclusions, and recom- mendations of the Trial Examiner 3 as modified herein. [The Board adopted the Trial Examiner's Recommended Order, with the following modifications : [1. Add the following as paragraph 2(b) to the Trial Examiner's Recommended Order, the present paragraph 2(b) and those sub- sequent thereto being consecutively relettered : [" (b) Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces." [2. Change the period at the end of paragraph 1(c) of the Trial Examiner's Recommended Order, and at the end of the fourth indented paragraph of the Appendix, to a comma, and add the following : ["except to the extent that such right may be affected by an agree- ment 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."] 3 Respondent's request for oral argument is hereby denied as , in our opinion, the record, including the exceptions and briefs, adequately presents the issues and positions of the parties. ' We do not adopt the Trial Examiner's finding that Terminal Manager Murphy's threat to discharge Smith and Graves because the latter had given Smith a free ride from Chicago to Omaha to tend to personal business violated Section 8(a)(1) of the 'Act ' Respondent contends that 'Smith should have resorted to the contract grievance pro- cedure rather than file unfair labor practice charges with the Board to secure a remedy for his discharge. We find the contention without merit . The existence of a grievance procedure in a collective-bargaining agreement does not oust the Board of its power, or relieve it of its public duty, to remedy unfair labor practices . The Coachman's Inn, 147 NLRB 278, 306. 120 DECISIONS OF NATIONAL LABOR RELAfIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding was heard before Trial Examiner Arthur Christopher, Jr. in Chicago, Illinois, on November 22, 23, and 24, 1965, on complaint of the General Counsel and answer of Takin Bros. Freight Lines, Inc., herein called the Respond- ent.' The issues litigated were whether the Respondent violated Section 8(a)(1), (3), and (4) of the National Labor Relations Act as amended.2 At the hearing all parties were represented by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to present evidence, and to file briefs. At the close of the hearing the General Counsel and the Respondent argued orally and thereafter both submitted briefs. Upon the entire record and my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent, an Iowa corporation with its principal place of business located at Waterloo, Iowa, is an interstate common carrier engaged in the transportation of freight by motor truck in the States of Nebraska, Iowa, Illinois, Indiana, Min- nesota, and Wisconsin. In the conduct of its business enterprise, the Respondent maintains 12 freight terminals in various cities of the United States, including a terminal at Chicago, Illinois. During 1964, a representative period, the Respondent received from its operations gross ievenue in excess of $3 million, of which amount $1 million was derived from its inteistate operations. It is admitted, and I find, that the Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED I find that Local 710, International Brotherhood of Teamsters, Chauffeurs, and Warehousemen of America, hereinafter called the Union, the Teamsters, or Local 710, is a labor organization k ithin the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The issues The principal issue in this proceeding is whether the Respondent violated Section 8(a)(3), (4), and (1) by its discharge of Kenneth J. Smith on June 11, 1965, because he engaged in union and other protected concerted activities and because he had filed charges or given testimony under the Act; and by its discharge of the aforesaid Kenneth J. Smith on July 8, 1965, after his reinstatement on or about June 30, 1965, by the Chicago Joint Area Committee of the Union, because he had engaged in union and other protected concerted activities, and because he had filed charges or given testimony under the Act. A further issue for determination is whether the Respondent violated Section 8(a)(1) of the Act by ( a) the alleged interrogation of employees concerning their union and/or other protected concerted activities by President Allen Kroblin and Vice President Russell Cantine, admitted supervisors, on or about May 17, 1965; and (b) the alleged threatening of an employee on or about May 24, 1965; by Ray- mond Cahill, assistant manager of the Chicago terminal, because the employee had engaged in union or other protected concerted activities. B. Introduction The Respondent operates a multistate motor freight transportation enterprise from its headquarters at Waterloo, Iowa, where Allen E. Kroblin, president of the i The original charge was filed by Kenneth J. Smith, an Individual , on June 14 , 1965. the first amended charge was filed on July 21, 1965, and the second amended charge was filed on August 17, 1965. 2At the hearing the complaint was amended without objection to allege independent violations of Section 8(a) (1) of the Act. TAKIN BROS. FREIGHT LINE, INC. 121 Respondent, and Russell Cantme, its vice president , maintain their offices. In addi- tion to owning all the stock in the Respondent Company, Kroblin likewise has com- plete control of Kroblin Refrigerated Express, another interstate motor transporta- tion enterprise . Both companies share a single main office and have a single safety director. The same individual handles the labor relations matters for both enter- prises. The two companies also share terminals and interchange employees and equipment at a number of locations . Kroblin has owned the Respondent Company since May 1964. In addition to Kroblin and Cantine , the Respondent admits that Phillip F. Murphy, manager of the Chicago , Illinois, terminal and his assistant, Raymond H. Cahill, together with Bruno Basile, are supervisors within the meaning of the Act. Basile is employed as a dock foreman at the Chicago terminal. The Respondent's truckdrivers are covered by contracts with a number of locals of the International Brotherhood of Teamsters , Chaffeurs, Warehousemen, and Helpers of America. These locals are located in Chicago, Illinois; Omaha, Nebraska; Des Moines, Iowa; Waterloo, Iowa, and Mason City, Iowa. Kenneth J. Smith, together with other employees who are either based , or work out of the Chicago terminal, are members of Local 710 in Chicago. Smith was initially employed by the Respondent in 1961 , prior to the time Allen Kroblin purchased the Respondent . At that time, he was employed as a spotter, and on all material dates herein was so employed at the Chicago terminal. Ray- mond Cahill testified that the duties of a spotter are to move equipment to and from the loading docks and around the terminal area, to fuel road tractors and check the oil therein, to connect tractors to the trailers, connect light cords, and move the loaded tractor-trailers from the dock, close the trailer doors and scale outbound vehicles for the purpose of ascertaining whether the load thereon is legal. If the load is legal, nothing further is required by way of sliding the tandem on the trailer; if the load is not legal, it is the duty of the spotter to slide the tandem or slide the fifth wheel on the trailer in order to distribue the load and make the weight conform to the reqiurements of the several States. The spotter also makes a visual check of the equipment to see that it is roadworthy . After completion of the fore- going, the spotter moves the equipment to the street in front of the terminal build- ing and thereafter turns a scale ticket into the office which indicates that the equip- ment is ready to be taken over the highway. As indicated hereinabove , the original charge was filed on June 14, 1965. The Section 10 (b) date is therefore December 14, 1964, precluding the finding of any unfair labor practices based on conduct which occurred prior thereto. Evidence offered by the General Counsel concerning the Respondent's conduct preceding the latter date nevertheless was received over Respondent 's objection as relevent in determining whether subsequent conduct was unlawful.3 C. Background Kenneth J. Smith's employment difficulties with the Respondent appear to have commenced in the latter part of 1961 , or the early part of 1962. Trial Examiner Robert E. Mullin, on October 23, 1962, issued his Intermediate Report in Case 13-CA-4714, finding that as a result of the discriminatory intervention of Local 710 of the Teamsters, Smith was denied further work as a spotter by the Respond- ent after February 8, 1962. Having found that the Respondent had discriminatorily refused to reemploy Kenneth J Smith after that date, the Trial Examiner recom- mended that the Respondent offer him reinstatement , without prejudice, to his posi- tion as a spotter, with backpay. The Trial Examiner further found that during the fall of 1961 , Smith became active in a campaign for election as president of Local 710. He and his associates had formed what was known as the "Rebel Teamsters" and organized what they called a "reform slate" for the purpose of ousting the incumbent officers of Local 710 Their efforts were unsuccessful for in the election of December 1961, the incumbents won. The Trial Examiner also found inter alia, that Smith's participation in the campaign for union office was well known to the Respondent's supervisors and officials , as he had made frequent appearances on television discussing various subjects of the union campaign. The Trial Examiner 3 See Local 344, Retail Clerks International Association, AFL-CIO ( Alton Myers Broth- ers, Inc ), 136 NLRB 1270 , 1280 , and cases there cited Cf Bryan Manufactnrinq Company (Local Lodge No 1424 , IAM, AFL-CIO), 119 NLRB 502, 504, enfd. 264 F 2d 575 (CADC, revd 362 U . S. 411). 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD further found that the officers of Local 710 thereafter intervened with the Respond- ent, resulting in the denial of reemployment to Smith as a spotter . The Respond- ent did not file exceptions to the Trial Examiner 's Intermediate Report and Recommended Order. Thereafter, Smith was reinstated to his position as a spotter. On October 29, 1963, Smith again filed a charge with the National Labor Rela- tions Board in Case 13-CA-5983, and filed a second charge on January 22, 1964, in Case 13-CA-6148. The charges which alleged violations of Section 8(a)(3) and (1) of the Act by the Respondent, by agreement of the parties were consolidated and the parties waived the filing of an answer, hearing, and a Trial Examiner's Decision therein. They executed an "Agreement and Stipulation for Entry of a Board Order and Court Decree Enforcing Court Order," wherein , inter alia, the Respondent agreed to offer Kenneth J. Smith immediate and full reinstatement to his former position with backpay and to post appropriate notices at its Chicago, Illinois, terminal. On June 4, 1964, the Agreement and Stipulation for Entry of Board Order and Court Decree Enforcing Board Order was approved by the General Counsel of the Board. On July 16, 1964, the United States Court of Appeals for the Seventh Circuit issued a decree , enforcing the Board's Order. On or about September 21, 1964, Kenneth J. Smith again filed with the Board a charge in Case 13-CA-6680, alleging that the Respondent had discriminated against him "through constant harassment and other discriminatory acts and actions, includ- ing direct and profane language against . . . [him] because of his protected activity." Smith credibly testified that after filing the aforementioned charge, he received three warning letters from the Respondent. The three letters, which were dated September 17, 1964, and were received simultaneously , were postmarked Septem- ber 23, 1964. In this connection , the record reveals that the Respondent was notified of the filing of the aforementioned charge by the Board 's Regional Office on September 22, 1964. The charge was later withdrawn by Smith. The first warning letter alleged that on September 16, 1964, Smith, because of his operation of a tractor, damaged trailer 637 with which it was hooked up, and trailer RT24, the latter receiving damage to the refrigeration unit as a result of the collision. With respect to this incident , Smith credibly testified that while he was moving the tractor-trailer into the terminal yard, the left-hand corner of trailer 637 scraped the front of refrigerated trailer 24, and that no damage resulted therefrom. Immediately thereafter, Smith was approached by President Allen Kroblin, who came running down the yard when he saw Smith hit the trailer, "using all kinds of vulgar and violent language." Smith stated that Kroblin threatened him not to turn his back on him, and called Smith a "blind b-d." Smith stated that he did not answer Kroblin's comments. A little later Assistant Terminal Manager Ray Cahill and Local 710 Shop Steward Paul Houston came to the spot where Smith was. Both looked at the unit and Houston stated there was no damage to it. Cahill also examined the unit and thereafter both walked away. Paul Houston in his testimony corroborated Smith's version of this incident. The second warning letter, referred to above, alleged that Smith had failed to follow instructions with respect to fueling tractor 341 causing the truck to run out of fuel with needless expense and delay to the Respondent . On the day he received the warning letter, Smith testified that he was in the terminal garage with Cahill and a driver named Railsback. Smith testified that he approached Cahill and Peter Czol- lono, the day spotter Czollono told Smith that he, and not Smith, had fueled tractor 341 early in the day. Smith referred to the letter again and told Cahill that he should not have received the warning letter, whereupon Cahill turned around and walked away. Thomas Railsback corroborated Smith's testimony in all material respects. The third warning letter mentioned above stated that Smith had failed to move the fifth wheel on a trailer on September 15, 1964, resulting in unnecessary delay in the departure of the vehicle. Smith was further admonished that his continued failure to follow instructions would result in his discharge. Smith further credibly testified that trailer 809 contains no fifth wheel . He stated that if there had been a fifth wheel which would have been moved forward on such a trailer, it would not have reduced the overload, which was on the back end of a "double bottom hook- up." Smith exnlained that there were several problems with respect to the loading of trailer 809. The Respondent had just obtained the "double bottoms" and employees were not too familiar with the hook-un system. As a consequence. the lines were breaking, obviously referring to the brake lines, and the back of the trailer was over- TAKIN BROS. FREIGHT LINE, INC. 123 loaded. Smith stated there was nothing that could be done. He said the problem could have been corrected by taking off the extra weight. By a warning letter dated March 9, 1965, the Respondent advised Smith that his. failure to fuel tractor 360 which, the Respondent asserted, ran out of fuel approxi- mately 90 miles from Chicago and resulted in a delay of about 51/2 hours and con- siderable expense to the Respondent. Smith testified that the failure to fuel the tractor was due to his fault as he forgot to do so. When the driver telephoned that he had ran out of fuel, Bruno Basile, the dock foreman under whom Smith worked on the night shift, was told by Smith "this will mean I will probably get a warning letter." Basile replied, "Don't worry about a warning letter, because we will let Collins [another over-the-road driver] take money out there." Smith further testified that to the best of his knowledge Collins took the money to Brown, the driver who ran out of fuel, and the fuel was purchased. The next day, he was again informed by Dock Foreman Basile that he would not receive any warning letter as long as Brown did not turn in any "detention time." Collins was present at the time of the conversation. Collins corroborated Smith's testimony, and stated that he took the money to purchase the fuel for Brown and that he overheard Bruno Basile tell Smith that no warning letter would be issued to Smith. Basile denied that he had told Smith that no warning letter would be issued. As Smith impressed me as being a very forthright witness, and in view of the corroboration of his testimony by Collins, I credit Smith's testimony over that of Bruno Basile. Kenneth Smith received another warning letter dated March 18, 1965, stating that he had refused to take a tractor and trailer and scale it at 39th and Morgan Streets, in Chicago, because he did not have his driver's license on his person when he reported for work. Smith testified that he had "scaled a load out" and the trailer was overloaded, according to Respondents scale. Dock Foreman Basile asked Smith to take the truck to 39th Street and Morgan at which time Smith replied that he could not, as his driver's license was in his other pants pocket. At that point, Basile walked away and asked no further questions. Smith testified that his pants were in his locker, which was located downstairs in the garage. Smith talked to Assistant Terminal Manager Cahill about the matter, whereupon Cahill asked Smith how did he get to work and Smith replied that he had driven his car to work. Cahill ques- tioned Smith as to how was he going to get home. Smith replied that he was going to drive his car home, whereupon Cahill asked, "How are you going to drive your car home if you don't have a license?" Smith replied that his license was in his other pants. D. Subsequent events; the discharge of Smith James B. Graves, employed as a truckdriver by the Respondent, driving a "fleet- owner's truck," testified that sometime in April or May, 1965, various owner-operators and fleet-owner drivers and some drivers of Respondent's trucks were dissatisfied with the payments that they were receiving under the existing collective-bargaining agreement. Graves credibly testified that a group of the drivers talked to Kenneth J. Smith and asked him to write a letter to International Union President James R. Hoffa because the drivers believed that they were not being paid under the terms of the contract. He testified, "we weren't getting what we thought we should get from our local union, and we want [sic] Mr. Hoffa to know about it " As a result of the drivers contacting Smith, Smith agreed to write a letter to Hoffa in behalf of the drivers. In this respect, Smith wrote a covering letter to Hoffa transmitting a letter signed by the drivers individually, wherein they recited their complaint to Hoffa as mentioned above.4 Graves also testified that, as a result of the letter written to Hoffa by Smith, a meeting was held in Omaha, Nebraska, during the week of May 23, 1965. A number of the drivers attended, as well as representatives of the Respondent. This meeting, which was held at the Union Hall in Omaha, was called by Union Treasurer Parker who also served as business agent for the Omaha Local. President Kroblin and Vice President Cantine represented the Respondent. According to Graves, in the course of the discussion, Kroblin brought up the matter of the letter and wanted to know 4 The letter from the drivers to Hoffa stated in part : We do not get detention time We do not get adequate overnight housing, layover, deadhead, and are, otherwise, kicked around and shunted from terminal to terminal. We are supposed to get separate checks for driver and truck-but we do not get that, either. We are being forced to make deliveries against our will without pay. 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "if we was getting out $5 worth." As the meeting broke up, Kroblin stated that "he [Smith] had been a thorn in my side ever since he owned the Company." Robert J. Wiley, who owns and drives a tractor which he leases to the Respondent, and works out of the Omaha terminal, substantially corroborated Graves' testimony concerning the discussion of the letter written by Smith. Wiley testified credibly that Kroblin stated that he wanted to see a copy of the letter. Wiley went to his car and obtained a copy of the letter and showed it to Kroblin. Thereafter Kroblin laughed about the letter, and stated, "that G-d d- Smith has been a thorn in my neck." He further testified that Russell Cantine, likewise , laughed about the letter. Wiley also testified that shortly thereafter, while he was visiting the Chicago terminal garage, he heard Cahill remark, "We are going to get rid of the `s. o. b.' [Smith] one way or another." Cahill denied making the statement attributed to him by Wiley. As Wiley impressed me as being a more trustworthy and forthright wit- ness than Cahill, I credit Wiley's testimony over that of Cahill and find that the latter uttered the threat as testified by Wiley. Kenneth Smith further testified that President Kroblin referred to the letter some- time during the latter part of May or early part of June at the Respondent 's terminal in Chicago. According to Smith, Kroblin smiled at him and asked , "How's the letter writing business, Smith?" Smith did not answer Kroblin and Kroblin repeated the question, inquiring whether Smith had heard him, and then remarked, "How come you didn't cut me in?" Smith answered, "Cut you in for what?" Whereupon Kroblin replied, "I understand the brokers [the owner operators of leased equipment] chip- ped in $5 a piece. At least you could have cut me in on some of the money ." There- after, both Kroblin and Smith walked away. Kroblin admitted that he made the remark that Smith was "a thorn in his side," but ascribed it to Smith's "past prac- tices as a spotter, because of [his] failing to follow orders , such as this incident where trucks were running out of fuel , his asking drivers to bring the fuel tickets back to him and reimburse him." Kroblin's reference to Smith's asking drivers to bring fuel tickets back to Smith so that he could reimburse the drivers , obviously referred to an incident relating to tractor 344. Smith testified that he was directed to hook-up tractor 344 to a trailer, scale it, close the doors, seal the load , and place the tractor-trailer on the street. After he had placed the vehicle on the street , Smith went to Dock Foreman Bruno Basile and informed him that the tractor-trailer was on the street, but there was no fuel in the tractor. He also told Basile that he had not had his lunch, and sought his permission to obtain a cup of coffee from an adjacent restaurant before it closed at midnight . Basile granted Smith permission and also asked him to bring Basile a cup of coffee. When Smith returned from the restaurant, he observed that the tractor-trailer had departed. He thereupon told Basile that the truck had not been fueled and reminded him that he should not have let it go. In the meantime, Smith testified that when he first advised Basile that the tractor had not been fueled, the latter stated that he could refuel the tractor upon his return from the restaurant. After Smith had reminded Basile of his prior discussion with him concerning Smith's not having fueled the tractor, he stated, "The result of it will be, I will get a warn- ing letter on this." Basile told Smith that he should not become excited about it that he would not get a warning letter because of the incident, that Basile had been busy and forgot to tell the driver. He added that he would do everything he could to intercept the truck. Truck Drivers Collins and Topping were in the office at the time and overheard the conversation between Smith and Basile. Topping stated that he probably would be able to overtake the tractor-trailer at one of the truck stops, perhaps 75 or 80 miles from Chicago, when the driver stopped to eat. In the mean- time, Collins stated that he would make several telephone calls to intermediate points, including the Iowa-Clinton bridge and have the truck intercepted. Basile authorized Collins to make the telephone calls. The driver was intercepted and pur- chased $7.77 worth of fuel. Smith further testified that within his knowledge tractor 344 did not run out of fuel. Within his best recollection, the incident occurred on June 3, 1965, and the driver involved was Gaylen Thomason. On cross-examination, Smith testified that it was mutually agreed between Thomason and Smith that both would pay for the fuel. Smith further explained that he felt that Thomason likewise was responsible for the incident, and in order to avoid the receipt of any warning letters by either, the only thing they could do was to pay for the fuel themselves. Basile denied that he told Smith that he would not receive a warning letter. I credit Smith's testimony, which was corroborated by Collins and Topping, and find that Basile made the statement attributed to him by Smith. TAKIN BROS. FREIGHT LINE, INC. 125 Smith testified that about a week after the Memorial Day weekend of 1965, Terminal Manager Murphy appioached him while he was working on the dock and inquired whether he had been to Omaha, Nebraska, over the Memorial Day week- end. James B. Graves, another truckdriver, was present. Smith replied that he had been to Omaha. Murphy then asked how did he get there, whereupon Smith answered that he went to Omaha on Graves' truck. Thereafter, Murphy asked if he had granted Smith permission. Smith replied that he had not asked Murphy for permission because Graves told him that he had obtained permission from his terminal manager in Omaha. Murphy thereupon said, "I'm going to do everything I can to fire both of you." Graves substantially corroborated Smith's version of his talk with Murphy, including Murphy's threat to discharge both of them. Murphy did not testify at the hearing. Kenneth J. Smith testified that he heard about tractor 344 again on June 11 at the time he reported for work. Murphy had pulled his timecard from the rack, and when Smith sought to punch in, he was unable to find his timecard. Murphy told him in a "sarcastic way" to proceed to the office, and sit down. Smith remonstrated, stating that he was looking for his timecard, whereupon Murphy again ordered him to go to the office and sit down, and stated that he would get the union shop steward. Paul Houston, the shop steward, arrived on the scene and Murphy asked Smith if he had failed to fuel a truck. Smith asked Murphy what numbered truck was he talking about, and Murphy replied that Smith knew what truck he was talk- ing about. Smith again repeated his question as to what was the truck number, and stated that he did not even know what truck Murphy was talking about. Murphy replied that Smith had intercepted the truck. A discussion followed concerning the interception of a truck, whereupon Smith asked whether the driver in question had run out of fuel. Murphy replied that he had not. He also asked if the driver had requested detention time, and Murphy replied that he had not. Smith then asked' whether the driver had experienced a breakdown of equipment. Upon Murphy's, reply in the negative, Smith then asked for what reason was Murphy reprimanding Smith. Murphy said "on the basis of this here, I am discharging you." Thereupon Murphy discharged Smith. A day later Smith received a letter from the Respondent dated June 11, and signed by Murphy which recited that Smith had received warn- ing letters on September 17, 1964, and March 9, 1965, for his failure to fuel road tractor equipment. The letter stated further that on June 3, 1965, Smith had failed to fuel' tractor 344. The letter also stated that because of his repeated negligence and his failure to properly fuel road tractor equipment, such dereliction on his part had resulted in unnecessary delay to the freight and unwarranted expense to Respondent. The letter concluded by advising Smith that he was discharged under article 23 of the Local's collective-bargaining agreement for failure to properly fuel over-the-road tractor equipment .5 On the same evening of his discharge, Kenneth J. Smith sent a joint telegram to Murphy and John Phalen, business agent of Local 710, stating that he had been discharged by Murphy verbally and in so doing Murphy had violated article 23 of the working agreement Thereafter Smith also filed a grievance with Local 710. On June 19, 1965, the grievance was referred to the Joint Area Committee, a panel organized to consider such grievances which is composed of three members repre- senting management and three representing labor. The Joint Area Committee con- sidered Smith's grievance on June 30, 1965. Roy M. Pride, who is manager of the labor relations division of the Central Motor Freight Association and serves as a member of the Joint Committee as a representative of management, credibly testi- fied that the panel kept no official transcript of its proceedings. The committee, after deliberating upon Smith's grievance., directed that Smith be reinstated on July 6, 1965, with health and welfare to be paid, but without backpay, and indicated that, 5 The working agreement, which was a supplement to the National Master Freight agree- ment covering terminal employees such as Smith and over-the-road drivers, was executed between Local Union No. 710' of the Teamsters and the Central Motor Freight Associa- tion, Inc., in behalf of a group of employers The agreement in question was signed by union representatives and representatives of the Motor Carriers Labor Advisory Council, on behalf of the Respondent. Article 23, which relates to discharge, reads in pertinent part as follows : The Employer will not discharge nor suspend any employee without just cause . discharge shall be written notice to the employee with copy of notice to the Local Union . . . . " ' . - . I 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it was a "final warning" to Smith. Pride stated that the committee meant by final warning to convey to the grievant that it would be inadvisable for him to come before the committee on the same complaint again. By letter dated June 16, 1965, signed by Terminal Manager Murphy, the Respond- ent transmitted to Smith three checks, two of which covered his wages for hours worked through June 11, 1965, and one covered 2-weeks' vacation pay. All three checks were dated June 5, 1965, 6 days prior to Smith's discharge. On the same day the Joint Area Committee held its meeting, Smith and three or four of the Respondent's drivers had supper at a restaurant and Smith took the men back to the Respondent's terminal in his car. Smith testified that he recalled that Collins and Graves were in the group. While Smith was talking to the men in his car parked on the street adjacent to the Respondent's terminal, Terminal Manager Murphy drove up alongside him. Murphy told Smith that he did not want to see Smith on the Respondent's property, and further that he did not want to see him on 33d Street where the car was stopped. He further remarked that the Joint Area Committee had ruled that Smith was not to report back to work until July 6, and he did not want to see Smith anywhere near the terminal until July 6. Smith replied that he was not on the Respondent's property, he was talking to the men in the middle of the street, and Murphy could not "run him off" the street, and that he had eaten supper with the men. Drivers William Collins and James B. Graves cor- roborated Smith's version of his conversation with Murphy on the street. Collins further testified that driver Railsback was also present at the time. Collins credibly testified that after going into the terminal, several of them talked about the incident and were laughing about Murphy's attempt "to run Smith off." At that time Bruno Basile, the night dock foreman, stated that he hoped Smith would return to work. He further stated that if Murphy had let Smith alone, Smith would be the best man around the terminal. Pursuant to the directive of the Joint Area Committee, Kenneth J . Smith reported for work on July 6, at 4:30 p.m., the customary time for his tour of duty. Shortly thereafter Assistant Terminal Manager Ray. Cahill asked Smith to proceed to his office where he told Smith that Murphy was on vacation for a few days and that Murphy wanted Cahill to talk to Smith and direct Smith not to go beyond the swinging doors in the office where the timeclock was located . Smith was instructed that if there were no work available for him in the terminal yard , he was to remain in the small room adjacent to the office and commonly called the "dog house," and under no circumstances was Smith to leave that area until he was told to leave by his superiors in the main office. Apart from the foregoing, Smith apparently worked without incident on July 6, and reported for work at his customary time of 4:30 p.m. on July 7 and found there was "extra help" for him, which had never occurred before. After completing several assigned tasks, Smith was instructed by Dock Foreman Bruno Basile to hook up a tractor to trailer 639. He followed instructions and hooked up the tractor to trailer 639, then pulled the vehicles from the dock and closed the doors . With respect to the closing of the doors, Smith credibly testi- fied that he was required to use a small block of wood to hammer the handle down. While doing so he observed that the back doors were bent, but Smith testified that this was not unusual because there were many trailers with bent doors . Following that operation. Smith placed the tractor-trailer on the scale and thereafter drove it to the street. He later went upstairs and executed what was described as a scale ticket with instructions that the trailer was ready to go. Smith testified that the entire operation required about 20 minutes . Smith further testified that approxi- mately 20 minutes later, Cahill asked him if he had slid the tandem on trailer 639. Smith replied that he had not, and Cahill asked him whether he had noticed that the doors were bent . Whereupon Smith stated that he observed many trailer doors were bent and Cahill countered by stating that the whole back end of the trailer was falling out. After further discussion , Cahill again asked Smith whether he had slid the tandem on trailer 639, whereupon Smith answered that if he had slid the tandem he would have required help to do so, because he could not complete the operation alone. Upon Cahill 's instructions, Smith later took the trailer to the nearby Trailmobile establishment for repairs. Smith explained that in order to slide the tandem on trailers like trailer 639, the driver or spotter required extra help, unless the trailer was in very good condition. Trailer 639 had an uplift handle containing a pin , which would come down per- mitting the trailer to move forward and if the person sliding the tandem did not have another person who would assist him by putting the handle up in the hole TAKIN BROS. FREIGHT LINE, INC. 127 again, the operation would not be successful. When the driver took the vehicle on the street, damage would result because the tandem would come out from under the trailer. William Collins credibly testified that on the night of July 7, 1965, while he was waiting for Smith to hook up Collins' tractor-trailer, he observed Smith handling the tractor which was attached to trailer 639 in the terminal yard. Collins, who was standing about 40 feet from the tractor-trailer operated by Smith, testified that he observed Smith performing his various functions with respect to the tractor-trailer sometime between the hours of 5 and 8 p in. He saw Smith move the tractor and trailer 639 from the terminal yard and take the vehicles to the front of the terminal. He did not see Smith slide the tandem on the trailer. Collins observed that the bumper was pulled back to the tandem when he looked at it later before it was taken to the Trailmobile establishment for repairs. He also observed that the doors were bent but not bent excessively. Collins' testimony substantially corroborated that of Smith that the damage to the trailer occurred when the tandem came loose. He added that it could have come loose by being slipped back or could have occur- red by a chain having been hooked to the trailer and pulled. Collins also cor- roborated Smith's testimony that with respect to trailers such as 639, it is difficult if not almost impossible for one man to slide the tandem, unless it is in very good mechanical working order. Collins further testified that Smith would never slide the tandems on trailers like 639 without the assistance of another person. Upon reporting for work on July 8 at 4:30 p.m., Smith found Assistant Terminal Manager Cahill in the office with Shop Steward Paul Houston. Immediately they went to Terminal Manager Murphy's office. Cahill asked Smith if he had slid the tandem on trailer 639 the previous night and Smith again told him, as he had stated the night before, that he did not slide the tandem on the trailer. Whereupon Cahill asked whether he had gone to the garage and asked driver Lucy if he would slide the tandem on the trailer. Smith tesitfied in the affirmative and further that Lucy did not slide the tandem on the trailer, and added that Smith did not slide it. Whereupon Cahill stated "I got orders to fire you." When Smith asked what was the basis for his discharge, Cahill replied, "Well, we think you did it." Houston credibly testified that he later asked Cahill why Smith was not accorded the same privilege as the mechanic, Guido Costa, and Pete Czolono, the day spotter, who were permitted to sign "some sort of a form" stating that they were not responsible for the damage. Smith was paid that same night and has not since worked for the Respondent. E. Concluding findings The Respondent asserts as its affirmative defense that Kenneth Smith was dis- charged on July 8, 1965, because of his reckless and negligent manner in sliding the tandem of trailer 639 so as to seriously damage the trailer, resulting in a serious safety hazard, and could have precipitated further damage and possible injury to the person of the driver and/or others. The Respondent further contends, apart from the foregoing, that Smith's discharge was for cause because he did not conform to the Respondent's policy of reporting the damage to trailer 639. In connection with the foregoing contentions, the Respondent urges that if Kenneth Smith actually felt that he had been wrongfully penalized he had the proper forum and a remedy against his employer under the existing collective-bargaining contract between the Respondent and the Union. The Respondent argues in effect that Smith was unable to utilize the collective-bargaining process to redress his alleged grievance and instead sought by this proceeding to use the processes of the National Labor Rela- tions Board "to create a cloak of immunization insuring him against disciplinary action by the Respondent for failure to perform his job properly." The General Counsel contends that Smith was not negligent in performing his duties as a spotter but that the real motive for Smith's discharge was because he had engaged in union and other protected concerted activities and because he had filed charges or had given testimony under the Act. The Respondent's contention that it was motivated in discharging Smith solely because of its belief that he damaged equipment is not tenable. There is no affirma- tive evidence whatsoever that Smith slid the tandem on trailer 639 on the night of July 7, 1965. Smith's denial that he slid the tandem on trailer 639 is supported by the credible testimony of driver William Collins. Collins, who was waiting for Smith to service and hook up his tractor and trailer, observed Smith handling No. 639 and noted that Smith did not slide the tandem thereon and saw him move the equipment within the terminal yard and thereafter to the street without incident. 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Collins' testimony is buttressed by the testimony of driver James B. Graves who testified credibly that he had slid the tandem on No. 639 about a week prior to the hearing in this proceeding and could accomplish the operation only with the help of a service station attendant in Council Bluffs, Iowa. Moreover, the testimony of Dock Foreman Bruno Basile, a witness for the Respondent, that on the evening in question Smith spent about 20 minutes hooking up trailer 639 to the tractor, cor- roborated Smith's testimony in this respect and indicates that the time that Smith spent in servicing trailer 639 was inadequate for him to slide the tandem on that vehicle. Although the Respondent adduced testimony from Gaylen Thomason, the driver of the tractor to which trailer 639 was hooked up, that the equipment was in satisfactory condition when he parked it in the terminal yard early in the morning of July 7 but upon his inspection of the equipment prior to his departure time that evening he found it to be damaged, together with the testimony of Pete Czolono the day spotter, who testified that he moved the tractor and trailer 639 after it had arrived in the morning and while operating the equipment he had no collision with any object whatsoever, and Guido Costa, the mechanic, who testified that he repaired an air leak on the brake line of trailer 639 on July 7 by replacing an additional tubing, and inspected the under carriage of the vehicle together with Ray Cahill and found everything in working order at that time, the Respondent's evi- dence does not present a complete account of the time the trailer was in the termi- nal yard or parked on the street. The lapses in time that occurred between the time the trailer had been repaired in the shop and the time that Smith performed his operation in hooking up the trailer and servicing it in the terminal yard, as well as the short period unaccounted for that elapsed after Smith moved the tractor and trailer to the street, negate the inference that Smith damaged the vehicle, particu- larly in the face of his credible testimony to the contrary and Collins' corroborating testimony that Smith did not slide the tandem on the trailer and could not accomp- lish the task alone. As the reasons asserted by the Respondent for Smith's discharge are not 'supportable, the real underlying reasons must be sought elsewhere.6 The real motive for the Respondent's discharge of Kenneth Smith is discernible from the background evidence showing the relationship of Smith to the Respondent over the period of several years prior to his discharge on July 8, 1965. Hostility on the part of the Respondent toward Smith appears to have started with the 1962 proceeding which revealed that the Respondent's discriminatory refusal to offer Smith further employment was in acquiescence to the Union's pressure to obtain reprisal for Smith's having opposed and attempted to unseat incumbent officers of Local 710. The inordinate number of warning letters received by Smith thereafter- all, with one exception, without valid reasons therefor-demonstrate that Respond- ent was determined to nd itself of Smith because, as President Kroblin expressed it, Smith "was a thorn in my side." The hostility is further reflected by Respondent's sending Smith a warning letter for his alleged failure to refuel a tractor on one occasion despite the fact the day spotter, Pete Czolono, admitted that he had failed to refuel the tractor in the presence of Ray Cahill. In addition, upon the Respond- ent's receipt of notice of charges filed by Smith in Case 13-CA-6680, Smith received three predated warning letters about a day later. Smith's discharge in January 1964, and again in June 1965, reflected the Respondent's intent to get rid of Smith. Its hostility toward Smith is revealed by Kroblin's and Cantine's comments concerning Smith's writing letters to James R. Hoffa in behalf of certain of the drivers and Kroblin's confrontation of Smith concerning the writing of these letters. In this connection, Smith's letter to Hoffa precipitated action which resulted in the so-called "broker-drivers" becoming employees of the Respondent. Certain of their grievances as to which they had complained were adjusted according to the credible testimony of driver James B. Graves, whereas certain other matters were still open for negotia- tion as of the time of the hearing. Notwithstanding Kroblin's testimony that he deemed the letterwriting to be a "joke," his comments to Graves in September, 1965, as to whether he felt he had gotten his "$5 worth" from Smith's letterwriting, actually reveal that Kroblin harbored deep resentment because of Smith's efforts in behalf of the drivers. The Respondent's higher officials at the Chicago terminal likewise reflected the Respondent's displeasure toward Smith. This is demonstrated by Murphy's threat to Smith and Graves that he would see that both were fired; his admonition to Smith that he did not want to see Smith anywhere near the Respondent's terminal until the time he-was scheduled to be reinstated pursuant to the Joint Area Com- 8 The Cross Company, 119 NLRB 700, 713. TAKIN BROS. FREIGHT LINE, INC. 129 mittee's decision. Cahill's statement to driver Wiley, a few days before Smith's dis- charge in June, that Respondent "was going to get rid of that s o b. [Smith] one way or another"; and his directing Smith to iemain in the "dog house," are other examples of the Respondent's hostility. Murphy's and Cahill's aforementioned conduct further reveals that the Respond- ent was not willing to take Smith back and wanted to make it clear to Smith that the Respondent did not want him back. In this regard, the instance concerning the alleged sliding of the tandem on trailer 639 and the resuting damage thereto demon- strate further the Respondent's determination to rid itself of Smith. Although several other employees who handled the equipment on the day in question testified that they did not slide the tandem nor damage the equipment and were given an oppor- tunity to submit statements to that effect, Smith was not. Moreover, Collins, who was waiting for Smith to service and hook up his tractor and trailer, observed Smith handling trailer 639 and noted that Smith did not slide the tandem thereon and saw him move the equipment within the terminal yard and thereafter to the street, without incident. In view of Collins' corroboration of Smith's denial that he slid the tandem on trailer 639 together with evidence that two men were required to slide the tandem on trailer 639 because of its condition, I find and conclude that the Respondent's discharge of Kenneth Smith for the asserted. reason that he had negligently slid the tandem on trailer 639 resulting in damage to the trailer and had failed to report the damage, is a pretext and that Smith was discharged because of his union-and protected concerted activities, in violation of Section 8(a)(3) and (1) of the Act? I further find and conclude that the Respondent, by President Kroblin's interroga- tion of Wiley and other drivers at the Omaha meeting in May 1965, concerning the letter to Hoffa; and Murphy's threat to Smith and Graves that he would see that both were discharged, violated Section 8 (a) (1) of the Act.8 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities as set forth in section III, above, occurring in connection with the operations of Respondent set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. " Having found that Respondent has engaged in unfair labor practices violative of Section 8(a)(1) and (3) 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. I shall recommend that Respondent offer Kenneth J. Smith immediate and full reinstatement to his former or substantially equivalent position, without preju- dice to his seniority and other 'rights and privileges and that Respondent make him whole for any loss of earnings he may have suffered by reason of the discrimination against him by paying him a sum of money equal to the amount that he would normally have earned as wages from the date of the discrimination to the date of offer of reinstatement less his net earnings .9 The backpay shall include interest at 6 percent to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. The Respondent must also be ordered to cease and desist from hereafter interrogating employees concerning their union or other concerted activi- ties and threatening employees with discharge because of their union or other con- certed activities. In view of the-nature of the unfair labor practices committed, the commission of similar and other unfair labor practices reasonably may be antici- pated. I shall therefore recommend that the Respondent be ordered to cease and desist from in any manner infringing upon the rights guaranteed to its employees by Section 7 of the Act. 7 Pottsville Community Hotel Company Inc. (Necho-Allen Hotel), 140 NLRB 556 ; Won- der State Manufacturing Company, 141 NLRB 1217, enfd. 331 F.2d 737 (C A. 6) ; and Ravena Sportswear, 142 NLRB 1299. The complaint also alleges that Smith's discharge violated Section 8(a) (4). In view of the findings made hereinabove and the fact that the remedy would in any event be the same, I find it unnecessary to consider further the allegation of violation of Section 8(a) (4). 9 See Peninsular & Occidental Steamship Company, 132 NLRB 10; The Murray Ohio Manufacturing Company, 134 NLRB 175. e F. W. Woolworth Company, 90 NLRB 289. 257-551-67-vol. 160-10 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent. is an employer engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. By discriminatorily discharging Kenneth J . Smith, as found above, Respond- ent has engaged in, and is engaging in an unfair labor practice within the meaning of Section 8(a)(3) of the Act. 4. By interfering with, restraining, and coercing employees in exercising the rights guaranteed them by Section 7 of the Act, including Smith , the interrogations and threats, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law it is recommended that Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully interrogating employees about their union activities, or threat- ening them with discharge for engaging in such activity. (b) Discouraging membership in the Union or any other labor organization by discharging or otherwise discriminating in regard to hire or tenure of employment of any employee. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organi- zations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activity for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Kenneth J. Smith immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other privi- leges previously enjoyed and make him whole for any loss of pay he may have suffered by reason of his discharge, in the manner set forth in the section of this Decision entitled "The Remedy." (b) 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 rights under the terms of this Recommended Order. (c) Post at its terminal in Chicago, Illinois, copies of the attached notice marked "Appendix." 10 Copies of said notice, to be furnished by the Regional Director for Region 13 of the Board, shall, after being duly signed by Respondent, be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, where notices to employees are customarily posted. Respondent shall take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material. (d) Notify the said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.ir 10In the event that this Recommended Order Is adopted by the Board , the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice . In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals , the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." "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 the Respondent has taken to comply herewith." JACOB BRENNER COMPANY, INC. APPENDIX 131 NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT interrogate employees about employees' union or other pro- tected concerted activities in a manner constituting interference, restraint, and coercion in violation of Section 8(a)(1) of the Act. WE WILL NOT threaten our employees with discharge for engaging in union or other protected concerted activity. WE WILL NOT discourage membership in any union by discharging or other- wise discriminating in regard to hire or tenure of employment of any employee. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-examination, to form, join, or assist labor organizations, to bargain collectively through representatives 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 or all such activities. WE WILL offer Kenneth J. Smith immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other privileges, and make him whole for any loss of pay he may have suffered by reason of his discharge together with interest at the rate of 6 percent. All our employees are free to become or remain members of any labor organization. TAKIN BROS. FREIGHT LINE, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify Kenneth J. Smith if serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act, and the Universal Military Training and Service Act, 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board' s Regional Office, 881 U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois 60604, Telephone 828-7597. Jacob Brenner Company, Inc. and Local 565, Sheet Metal Work- ers International Association , AFL-CIO. Case 30-CA-262. July 11, 1966 DECISION AND ORDER On April 13, 1966, Trial Examiner Leo F. Lightner issued his Decision in the above-entitled proceeding, finding that the Respond- ent had not engaged in unfair labor practices as alleged in the com- plaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. 160 NLRB No. 11.