Hribar Trucking, Inc.

HRIBAR TRUCKING, INC. 745 Hribar Trucking, Inc. and Teamsters, Chauffeurs TRIAL EXAMINER'S DECISION and Helpers Union Local No. 43, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 30-CA-391 July 3. 1967 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On March 22, 1967, Trial Examiner Robert E. Mullin issued his Decision in the above-entitled case, finding that the Respondent 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. He further found that the Respondents had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the Respondent filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act. as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 and brief. and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. I ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, and hereby orders that the Respondent, Hribar Trucking, Inc., Caledonia, Wisconsin, its hrs. agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. i Member Brown would not consider the complaint's allegations with respect to the December 7, 1965, terminations of Pagels and Schultz in view of the arbitration proceeding which dealt with these charges. How- ever, he would hold the August 19, 1966, discharge of Pagels in violation of Section 8(a)(3) because, in his opinion, it was motivated by Pagels' in- sistence upon continuing with his union activity. Otherwise, Member Brown joins in the findings of his colleagues. STATEMENT OF THE CASE ROBERT E. MULLIN, Trial Examiner: Upon a charge filed on May 2, 1966, and an amended charge filed on September 1, 1966, by the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 13 (Milwaukee, Wisconsin), issued a complaint and notice of hearing dated September 7, 1966. The complaint alleged that the Respondent had vio- lated Section 8(a)(1), (3), and (5) of the Act. In its answer, duly filed, the Respondent conceded certain facts with respect to its business operations but denied the commis- sion of any unfair labor practices. Pursuant to due notice, a hearing was held in Milwau- kee, Wisconsin, on October 18, 19, and 21, 1966, before Trial Examiner Robert E. Mullin. All parties appeared at the hearing with counsel and were given full opportunity to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally after presenting their evidence, and to file briefs. i The parties waived oral argu- ment. A motion to dismiss, made by the Respondent at the close of the hearing, was taken under advisement. It is disposed of as appears hereinafter in this Decision. On December 12, 1966, all parties filed briefs with the Trial Examiner.2 Upon the entire record in the case, including the briefs of counsel, and from his observation of the witnesses, the Trial Examiner makes the following: I At the outset of the hearing, Counsel for the Respondent moved that the witnesses be sequestered. This motion was granted At the conclu- sion of the General Counsel's case, the first witness for the Respondent who took the stand was Attorney Walter S Davis. The General Counsel objected on the ground that Attorney Davis had been present throughout the hearing and that to permit counsel for the Respondent to testify would violate the order on sequestration The Trial Examiner overruled this ob- jection and permitted Attorney Davis to take the stand. In his brief the General Counsel asserts that it was error to permit Attorney Davis to tes- tify and has renewed the motion, made at the hearing, that all the testimony of this witness be stricken from the record This motion is without ment and it is hereby denied. Attorney Davis, as counsel of record for the Respondent, was entitled to remain in the hear- ing room, as of right. 6 Wigmore, Evidence, §1841, p. 364 (3 Ed.). That the order on sequestration is inapplicable to an attorney of record in a case, or to one of the parties, is generally recognized. Illinois- State v. Sayler, 72 N.N 2d 293, 295; Florida: McCoy v. State, 175 So.2d 588, 591 Mississippi Gillespie v State, 61 So.2d 150, 154; Texas- Jackson v State, 115 S.W. 262,263-264; Dominquez v. State, 275 S.W.2d 677.679. Finally, and in any event, the application of the order is within the discre- tion of the trial court. Holder v. United States, 150 U.S. 91,92; Powell v. United States, 208 F.2d 618, 619 (C.A. 6), cert. denied 347 U.S 961; Morrow V. United States, 101 F 2d 654, 656 (CA. 7), Slocum v. United States, 325 F.2d 465, 467 (C A 8). 2 After receipt of the briefs of counsel, the Trial Examiner, by an order dated January 31, 1967, withdrew a ruling on the admissibility of an ar- bitrator's opinion and accorded the parties 10 days within which to submit the said opinion as an exhibit. On February 5, 1967, the General Counsel submitted a motion to reopen the record for the limited purpose of receiv- ing in evidence the opinion of Arbitrator Zel S. Rice, previously identified as G.C. Exh. 17. Attached to this motion was the aforesaid opinion and a stipulation, signed by counsel for all the parties, that the document was a true and accurate copy of Arbitrator Rice's opinion. The motion to reopen the record for the purpose stated in the motion is granted. The motion of the General Counsel has been designated G.C Exh. 17-a and the stipula- tion of counsel as G C. Exh. 17-b The order, referred to earlier, has been marked T. Ex. Exh. 1. All of these aforenumbered exhibits have been placed in the exhibit file of this case and are hereby received in evidence 166 NLRB No. 85 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Wisconsin corporation with its prin- cipal office and terminal at Caledonia, Wisconsin, is en- gaged in a motor carrier operation for the transportation of sand, gravel, and related materials. During the calendar year preceding the hearing, a representative period, the Respondent derived revenues in excess of $ 100,000 from transportation operations which constitute links in in- terstate commerce. During the same period, the Respond- ent derived gross revenues in excess of $100,000 for the transportation of building materials, sand, gravel, and stone, under contracts with Consumers Company, Divi- sion of Vulcan Materials Company. The latter corpora- tion is engaged in the sale and supply of building materi- als. In the operation of its business, Consumers Company maintains facilities in several States, in addition to those in Wisconsin, and annually performs services and ships goods and materials between various States of the United. States valued in excess of $100,000. Upon the foregoing facts the Respondent concedes, and the Trial Examiner finds, that Hribar Trucking, Inc., is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Teamsters, Chauffeurs and Helpers Union Local No. 43, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Union, or Teamsters, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Sequence of Events The Respondent Company is owned and controlled by the Hribar family. Leo Hribar, Jr., is the president and Mrs. Leo Hribar, his wife, is the secretary of the corpora- tion. A son, Lee R. Hribar, is the vice president and another son, Donald Hribar, is a director. Both Leo Hribar and his son Lee R. Hribar are actively engaged in the day-to-day management and direction of the business. The Respondent concedes that both of them are super- visors within the meaning of the Act. It does not make such a concession with respect to Donald Hribar. The status of the latter, an issue in the case, merits resolution at the outset of this Decision. Donald Hribar works full time as a mechanic in the truck terminal. The only other mechanics employed by the Company are William Hribar, a younger brother of Donald, and one Aaron Fischer, who is a part-time em- ployee in the garage. Although at one point Donald Hribar testified that he had hired part-time employees, he later changed his testimony and denied that he did any hiring. According to Hribar, he works in the garage from noon until as late as 10 p.m. and during the period from 6 p.m. until completion of his work in the garage he is frequently the only family member on duty at the ter- minal. He denied that he did any dispatching of the drivers and testified that this was handled solely by his brother, Lee Hribar, who is 2 years older than he and the vice president of the Company. On the other hand, he conceded that when Lee is absent from the terminal for short periods during the day he sometimes relays the or- ders of his older brother to the drivers. Donald Hribar testified that he is paid $3.50 an hour for his work as a mechanic and that he received a substantial Christmas bonus. Other than to describe this bonus as being in the "hundreds" of dollars he was unwilling to disclose with any further exactitude the actual amount he had received in this manner. He also testified that he owns a truck which he leases to the Company. According to Donald Hribar, he is now 25 years of age and has been a director of the family firm since he was 21. On the basis of the foregoing findings, particularly the fact that the Respond- ent is a family enterprise, and that Donald Hribar is not only a member of President Leo Hribar's immediate fami- ly, but also a corporate director, it is the conclusion of the Trial Examiner that Donald Hribar was, at all times material herein, an agent of the Company whose conduct was binding on the Respondent. Stinson Manufacturing Company, 148 NLRB 260, 261; Continental Motors, Inc., 145 NLRB 1075, 1076-77; Fiore Brothers Oil Co., Inc., 137 NLRB 191,192-193. The Respondent and the Union have had contractual relations since 1958. In addition to its own equipment the Respondent leases certain equipment from owner-opera- tors. For many years the collective-bargaining agree- ments covered only the driver-employees. In a new con- tract executed by the parties on September 20, 1965, however, the owner-operators were included in its coverage. Upon the execution of the new agreement in September 1965, Jerome Pagels was appointed steward for the drivers in the Respondent's employ and Ralph Wieselman was appointed steward for the owner-opera- tors. In October, Wieselman left the service of the Respondent. Thereafter, Romain K. Schultz, another owner-operator, was appointed as a steward to replace Wieselman. On December 7, 1965, Pagels and Schultz were discharged. On July 27, 1966, and after a hearing, an ar- bitrator issued an award wherein he held that Pagels and Schultz were entitled to immediate reinstatement and backpay. In compliance with this award, the Respondent offered reinstatement to Pagels and Schultz. On August 19, 1966, and subsequent to his reemployment, Pagels was again discharged. It is the contention of the General Counsel and the Union'that the terminations of Pagels and Schultz were, in each instance, discriminatory. These allegations are de- nied in their entirety by the Respondent. The General Counsel and the Union also contend that the Respondent violated Section 8(a)(5) by unilaterally instituting and enforcing various changes in the lease agreements which it required the owner-operators to ex- ecute. This allegation is likewise denied by the Respond- ent. B. The Appropriate Unit The General Counsel contends, the Respondent con- cedes, and the Trial Examiner finds, that all of the Respondent's truckdrivers, warehousemen and helpers, excluding office clerical employees and supervisors, con- stitute a unit appropriate for collective bargaining within the meaning of the Act, and that at all times material herein the Union has been the exclusive bargaining representative for the employees in the aforesaid ap- propriate unit. HRIBAR TRUCKING, INC. 747 C. The Period Prior to November 1965 The original charge in this case was filed on May 2, 1966. The limitation of the proviso to Section 10(b) of the Act proscribes any findings based upon events which oc- curred more than 6 months prior to that date. On the other hand, such evidence may be considered for what- ever light it sheds on the subsequent conduct of the parties. Soon after the new contract was signed in September 1965, Ralph Wieselman was designated as the union steward for the owner-operators and Jerome Pagels as the steward for the rest of the drivers. Wieselman was himself an owner-operator who for several years had leased equipment to the Respondent and driven it for the Com- pany. Pagels had gone to work for Hribar in 1958 and was one of the two most senior drivers in the Respondent's employ. Wieselman testified that shortly after he had been ap- pointed a steward he had a conversation with Leo Hribar in which the latter asked whether he realized that in the history of the Respondent a union steward seldom remained with the Company very long after his appoint- ment. According to Wieselman, after he acknowledged that he knew about this experience of earlier stewards, Hribar went on to ask whether Pagels had also been ap- pointed a steward. Wieselman testified that when he an- swered in the affirmative, Hribar told him: . Well, ... That's a poor steward. At any given time, we can get rid of Jerome Pagels ... With his driving record, it wouldn't be hard to get rid of him at all ... Jerome Pagels [is] just hanging on a string. And anytime he [Hribar] decided ... to get rid of him, all he'd have to do is cut the string. Wieselman further testified that in this same conversation Hribar stated that he would run the Company: ... the same way as it always was run ... as soon as we got rid of the bushy tails . and the troublemakers ... he signed the union contract because he had to sign it, not because he wanted to, and he didn't care what it said ... [the Company] was going to be run one way and that was the Hribar way. Wieselman was a credible witness as to this incident. When on the stand, Leo Hribar was questioned about his participation in such a conversation and gave a very in- conclusive answer when asked whether he had made the statement about Pagels which Wieselman attributed to him.3 Under these circumstances, the Trial Examiner finds that the conversation occurred substantially as Wieselman testified. Upon his appointment as a steward, Pagels began filing grievances on behalf of his fellow members. In a short while he submitted over 20 such complaints about the working conditions of the drivers. According to Pagels, soon after he assumed the union post and started filing grievances, both Leo and Lee Hribar warned him on several occasions that he should "stop making trouble and stop trying to run [the] business. ..." Some of Pagels' testimony as to these alleged conversations was confused and not too convincing. On the other hand, Pagels' testimony as to another incident during this period was credible and uncontradicted. Thus, according to Pagels, about a month after he became steward and while talking with two of the other drivers 4 at the ter- minal, Lee Hribar approached the group and advised the other drivers that "for their best interest they should just stay away from [Pagels], because [he] was a trouble- maker and they'd get in trouble too." Kenneth Tloughan, another driver, testified that ap- proximately 2 weeks after Pagels became the union steward, Donald Hribar told him that "Jerry Pagels was on his way out, that he thinks he's some kind of a king, and his representing the union in the way that he was. . .." Tloughan's testimony was credible and was not con- tradicted by Hribar when the latter was on the stand. There was also testimony about another incident which occurred in the fuel pump area at the terminal one after- noon late in September. According to Pagels, at that time he was endeavoring to persuade certain nonmembers to join the Union. Pagels testified that while he was talking with some of the drivers about this matter, both Donald and William Hribar came up to him, asked whether he had punched out and when he answered in the affirma- tive, told him to "get out of the yard. Stop causing trouble . between the drivers and us." Lee Hribar testified that this incident arose at a time when the drivers were lined up at the fuel pumps awaiting their turn and that he directed his brothers to speak to Pagels because his ac- tivities were delaying all the drivers who were refueling their trucks. According to Donald Hribar, on this occa- sion, he acted on orders from his brother Lee and, in so doing, told Pagels that if he wanted to talk with the men he would have to wait until after they had refueled so that no one would be delayed. Pagels conceded that at the time in question there were tractors in line at the fuel pumps. It is the conclusion of the Trial Examiner that the situation at the terminal on the date in question was sub- stantially as the Hribars testified. It is the further conclu- sion of the Trial Examiner that, in addition to admonish- ing Pagels that he should not delay the drivers while they were refueling, Donald 1-Iribar also told Pagels that he should "stop causing trouble ... between the drivers and us.... D. The Discharge of Pagels and Schultz Pagels, as has been noted earlier, was hired by the Respondent in 1958 and, according to Lee Hribar, had top seniority among the drivers. Further, according to Leo Hribar, the Respondent's president, Pagels was a "good worker" and had a very satisfactory driving record until the last year or two before his discharge. Romain K. Schultz was an owner-operator whose seniority with the Respondent dated from 1959. In November 1965 Schultz was appointed a union steward to replace Wieselman who had left the Respondent's employ. As found above, Pagels had been steward from a time shortly after the ex- ecution of the new collective-bargaining agreement the preceding September. On December 7, 1965, both Pagels and Schultz were discharged, allegedly for having taken strike action in violation of the union contract. A further ground assigned for Pagels' termination was that he had failed to secure his own insurance coverage. I Hribar's only comment. when asked whether he had made the state- ment about Pagels, was "I don't believe so." 4 According to Pagels, one of the two was Robert Klmgbeil. He could not recall the full name of the second driver 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A strike was called at the Respondent's terminal on a Monday morning, December 6. It arose as the result of a dispute on the preceding weekend over the Respond- ent's manner of handling payments to the owner-opera- tors. Under the terms of the collective-bargaining agree- ment the owner-operators were to receive two checks, one for their hourly wages and another for the use of their equipment. On the afternoon of Friday, December 3, Romain Schultz went to the Respondent's office to col- lect his checks. Nothing was ready for him and for a while Schultz apparently thought that he was not going to get paid immediately. From the record, it appears that Schultz actually received his checks later that afternoon. By that time, however, other owner-operators, as well as Schultz, had become involved and some one had con- tacted Leo Lotharius, business agent for the Teamsters. As a result, the business agent telephoned Leo Hribar and endeavored to discuss the matter with him. According to Lotharius, notwithstanding repeated at- tempts to talk with the Respondent's president on the telephone that evening, each time he identified himself, Hribar abruptly broke off the conversation. On December 4, according to Lotharius' credible, undenied testimony, he again telephoned Leo Hribar. After he suc- ceeded in getting Hribar on the telephone, the business agent asked that the owner-operators be paid that day, and when Hribar told him that this was impossible because the office was closed, he informed the company president that if his demand was not met, the men would not work on the following Monday. On December 5, a Sunday, Leo Hribar telephoned Pagels to tell him where to report for work the following morning. During the course of the conversation, Pagels told Hribar that there would be a strike the next day because the drivers would not report for work until the owner-operators had received their checks. According to Pagels' credible testimony, which was also undenied, Hribar then asked him whether he had called the strike and he declared, in response, that it was not he who had done so, but Lotharius, president of Teamsters Local 43. Early on the morning of December 6, Lotharius, ac- companied by Business Agent Leonard Grimmer as well as Pagels and Schultz, arrived at the Hribar terminal. There. Lotharius demanded an explanation from Lee Hribar as to why the owner-operators had not received their checks the preceding Friday. Lee Hribar responded with the declaration that the checks in question were then ready and that the owner-operators could have them im- mediately. The latter employees thereupon formed a line and received their pay. As soon as this had been accom- plished, Lotharius informed Hribar that the grievance had been settled and that the men were then available for work. Leo Hribar, who was also present, then announced that because of the hour, no work would be available that day. but that all the men could report for duty the follow- ing morning. On the afternoon of December 7, both Pagels and Schultz were handed letters which stated that each was being discharged for having taken unlawful strike action. The portion of the termination letter involved herein read as follows: Under Article VII, Stewards, section 2 employees Jerome Pagels and Romain Schultz have taken ac- As noted earlier, the letter also stated that Pagels was being ter- minated because he had failed to secure his own liability insurance tion interrupting the Employers business, strike ac- tion, and work stoppage in violation of 1965-1968 Building Material, Redi-Mix and Construction Agreement.5 That evening Leo Lotharius telephoned Lee Hribar to protest the termination of the two stewards on the ground that they were not responsible for the strike because he, as the president of the Local, was the only one authorized to take strike action and that it was he who had done so. Lee Hribar's only response was to suggest that Lotharius discuss the matter with Respondent's counsel. From the uncontradicted and undenied testimony of Lotharius, it is apparent that in his telephone call to Leo Hribar on December 4 he informed the Respondent's president that if the men did not receive their checks on that day, he would call them out on strike the following Monday. On December 5, when Leo Hribar telephoned Pagels, the latter informed him that Lotharius, as pre- sident of Local 43, had called a strike effective early the following day. The next morning Lotharius and Business Agent Grimmer arrived at the terminal to implement the announcement that Local 43 had called the strike to en- force its demand that the owner-operators be paid im- mediately. On December 7, when Pagels and Schultz were notified, in writing, that they were being discharged, Lotharius contacted Lee Hribar to reiterate that it was he, and not the stewards, who had ordered the walkout. The Respondent did not offer any evidence which would contradict or deny the testimony of Lotharius and Pagels with respect to the chain of events outlined above. The Respondent contends that the discharge of Pagels and Schultz was not discriminatory because they precipitated an illegal strike and thereby breached a no- strike provision in the contract between the Company and the Union. There is no merit to this argument. Article VII, that provision of the collective-bargaining agreement on which the Respondent based its action as to Pagels and Schultz, reads, in pertinent part, as follows: Job stewards and alternates have no authority to take strike action, or any other action interrupting the Employer's business, except as authorized by official action of the Union. [Emphasis supplied.] The Employer recognizes these limitations upon the authority of job stewards and their alternates, and shall not hold the Union liable for any unauthorized acts. The Employer in so recognizing such limita- tions shall have the authority to impose proper discipline, including discharge, in the event the shop steward has taken unauthorized strike action, slow down, or work stoppage in violation of this Agree- ment. Another provision of the contract, article XXXI, sets out in detail the steps to be followed in the processing of grievances through various stages up to and including final and binding arbitration. The opening sentence of this article in the contract reads: "The Union and the Em- ployer agree that there shall be no strike, lockout or tie- up." The Company contends that this language must be construed as a no-strike agreement, the violation of which in any manner by a union steward should constitute a coverage This issue will be considered in detail, infra HRIBAR TRUCKING, INC. 749 valid ground for discharge. In support of this position, in its brief, the Respondent cites N.L.R.B. v. Sands Manu- facturing Co., 306 U.S. 332; United Electrical, Radio and Machine Workers of America, Local 1113 v. N.L.R.B., 223 F.2d 338 (C.A.D.C.), and related cases. The Respondent's position finds no support in either the collective-bargaining agreement or in the applicable decisions. Different from the no-strike provisions in the above-cited cases on which the Respondent relies, the single line in article XXXI, already quoted, is not fol- lowed by other language in that article which provides any applicable penalties to the employee or union steward who participates in a strike during the contract term. Moreover, a reading of article VII makes it obvious that the omission from article XXXI of any specific reference to a sanction for striking, such as discharge, was not due to oversight or inadvertence. Thus, article VII prohibits stewards from participating in any strike, "except as authorized by official action of the Union." From this last exception it may be assumed that the parties contem- plated the possibility that some strike action might be authorized by official action of the Union during the course of the contract term and that, in such event, the Employer could impose no penalty. The Board has held that "The right to strike ... is guaranteed) by the statute, and as such can only be bar- tered away in collective bargaining with `clear and unmistakable language."' The Hearst Corporation, 161 NLRB 1405. Consequently, in view of the language from article VII, that is quoted above and which plainly im- plies that, during the term of the contract, strikes would be permissible if "authorized by official action of the Union," it is the conclusion of the Trial Examiner that the single disavowal of strikes and lockouts in article XXXI did not sweep away the statutory right of employees to strike and that neither the latter article nor any other arti- cle or provision in the collective-bargaining agreement imposed an absolute prohibition on strikes by the em- ployees. It is clear from the language of article VII of the collec- tive-bargaining agreement that whereas stewards are sub- ject to discharge for unauthorized strike action, such a sanction is inapplicable as to strikes "authorized by offi- cial action of the Union." Moreover, from the testimony of Lotharius, undenied and uncontradicted, it is apparent that the strike action here involved was taken by him in his official capacity as president of the Local and that it was, therefore, authorized, as that term is used in the col- lective-bargaining agreement. The Respondent offered no evidence which would contradict this construction of the testimony and the sequence of events which preceded the discharge of the two stewards. Accordingly, since the ac- tion of Pagels and Schultz as stewards did not violate arti- cle VII, or any other provision of the collective-bargain- ing contract, the Respondent's action in dismissing them finds no shelter in the terms of the employer-union agreement.6 Without the protection of a contract provi- sion for this disciplinary action, the Respondent's ter- mination of the stewards for having engaged in a strike, a type of concerted activity which was manifestly pro- tected, constituted a violation of Section 8(a)(3) and (1). The Trial Examiner so finds. As noted earlier, the termination notice to Pagels stated that he was being discharged, not only for having taken unlawful strike action, but also for having failed to secure his own liability insurance. There was a great amount of evidence introduced on this issue. The General Counsel alleged that the Company discriminatorily required that Pagels secure his own insurance coverage. This allegation was denied in its entirety by the Respondent. During much of the period in question the Respondent had a serious problem with respect to liability insurance coverage. It was, moreover, a problem which had been developing for some time and finally reached a climax in February 1965. At that point the Respondent was notified by its insurance carrier, that, because of the loss ratio arising out of a high accident rate, the current policy, due to expire in April, would not be renewed. Thereafter, John A. Carroll, an insurance broker, was able to secure another policy for the Respondent from Fireman's Fund Insurance Company. The issuance of this policy, how- ever, was conditioned upon the Respondent's institution of what was known as a "loss control program." This latter requirement involved a continuing study of the Respondent's operations so as to minimize the accident rate and make possible a lower premium for the policy. A prime consideration in this regard was a study of the in- dividual driving records of each of the Hribar drivers. To that end, Carroll asked that Hribar have each of its drivers fill out what was known as a "Driver's Traffic Safety Record," which required that each individual itemize all automobile accidents and traffic violations which he had had during the preceding 3 years. In May 1965, the Respondent initiated the practice of having its drivers fill out the safety record forms. About the same time Leo Hribar called in Schultz, Pagels, Wieselman, and others to complete these questionnaires. Wieselman testified, and in this connection his testimony was credible and undenied, that the Respondent's pre- sident assured them that in the event any driver was una- ble to recall the dates of every accident or violation that he should simply put down all that he could recall. The drivers heard nothing further about the safety re- ports until the following November. During that month, the Company and the Union held two meetings to discuss and resolve a number of grievances. The first meeting was held on November 10 and the second on November 17. At both, the Company was represented by Leo and Lee Hribar and Attorney Davis. The Union was represented by several officials of Local 43, including Lotharius and Grimmer. Roy Lane, an official of another local of the Teamsters, was likewise present and, at the behest of the parties, acted as chairman of the meeting. Also in attendance were Stewards Pagels and Wieselman. The issue as to Pagels was not introduced at the first meeting. It was, however, considered at the meeting on November 17. At the meeting on the latter date, the Respondent's representatives stated that the Company's liability in- surance policy was threatened with cancellation if it con- tinued to employ Pagels and two other drivers. Although other grievances were also considered, much of the time at this meeting was spent on the issue raised by what the Respondent referred to as an adverse report from its in- n In view of the fact that the work stoppage involved here arose as the ployees to a strike even though such action violates the no-strike provi- result of an effort to compel the Company to issue paychecks to the sions of a collective-bargaining agreement San Juan Lumber Company, owner-operators , it is of some relevance that the Board has held that the 154 NLRB 1153. 1154-55. enfd. on other grounds 367 F .2d 397 (C.A 9). failure of an employer to pay wages may excuse the resort by his em- 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD surance carrier on Jerome Pagels, Roger Regeth, and Ronald Sweeris. Attorney Davis testified that he thought this report was shown to Lane, the chairman of the meet- ing. This testimony was corroborated by Lee Hribar who also testified that the driving record of Pagels was presented to Lane. Leo Hribar was not questioned about this issue and Lane was never called as a witness. On the other hand, Business Agent Grimmer, who was in at- tendance, did testify. Grimmer's testimony was in con- flict with that of Davis and Lee Hribar, insofar as the recollection of the latter was to the effect that the in- surance report had been shown to the union representa- tives at the meeting. According to Grimmer, he specifi- cally asked to see the reports which the Company al- legedly had on the driving records of the three men in question but that the only response he had from Attorney Davis and the Hribars was that they did not have them. Grimmer's testimony to this effect was corroborated by that of Pagels. It was undenied that during the meeting Pagels protested that other drivers had records as bad or worse than his and that among those he named were Robert Kau, Robert Novak, Fayette Lloyd, and Robert Kisten. Both Grimmer and Pagels testified that, when these other names were mentioned, Lee Hribar declared, on behalf of the Company, that no letter about any of the others named had been received from the insurance carri- er. From the foregoing testimony, it is the conclusion of the Trial Examiner that whereas the Respondent's representatives may have shown some driving records to Lane during the course of the meeting, no such docu- ments were shown to either Grimmer, Pagels, or the other union representatives. It is also apparent, and the Trial Examiner finds, that when questioned about the poor records of the other drivers, Lee Hribar stated that the insurance company had not complained about any drivers besides Pagels, Sweeris, and Regeth. At the conclusion of the meeting the Union and Em- ployer signed an agreement wherein they endeavored to set forth their understanding of the disposition accorded each of the various grievances which had been con- sidered. The paragraph on the problem raised by the in- surance coverage on Pagels and the other drivers read as follows: The company agrees that drivers Pagels, Sweeris, and Riggett [Regeth] will be given fifteen (15) days from the time the company submits information to them and a copy to the union with respect to the in- surance coverage they are now carrying for their drivers, fifteen (15) days from that date the three drivers shall furnish proof of the above-mentioned coverage with the company to pay the same premium as is being paid on other employees coverage and the three drivers in question shall pay the difference. The foregoing paragraph, hardly a model of clarity, is far from self-explanatory. Grimmer testified that "the decision was, in view of the information gathered there, Hribar was to give us the coverage that he had on his en- tire fleet and was to mail it in to our office. We was to get a bid on it, and the difference that had to be paid because of these individual driving records would have to be paid by Regeth, Sweeris and Pagels." In any event, about November 22, Pagels received a letter from the Com- pany which set forth the purported cost of the insurance coverage and the limits of liability on the truck and trailer which Pagels had been driving. This letter, however, had no information on the cost of insurance coverage for the entire truck fleet. About November 29, Leo Hribar questioned Pagels as to whether the latter had secured his own insurance and when Pagels answered in the negative, Hribar told him that he would have to have it by December 1. As found earlier herein, in the discharge notice which Pagels received on December 7, the Respondent asserted that the employee was being ter- minated for having failed to secure his own insurance as well as for having engaged in allegedly illegal strike ac- tion. The General Counsel contends that the Respondent obtained the Union's acquiescence in the requirement that Pagels, Sweeris, and Regeth secure their own in- surance by withholding from the union representatives many of the relevant facts in order to effectuate, dis- criminatorily, the elimination of Pagels from its terminal. It is the conclusion of the Trial Examiner that this conten- tion is supported by the record. At the grievance meeting on November 17, the Respondent's representatives asserted that its insurance company was insisting that because of their bad driving records, Sweeris and Regeth, as well as Pagels, had to be discharged. In fact, on that date and for almost 2 weeks prior thereto, Sweeris was not, and had not been, on its payroll, having quit the Company's employ on November 5, 1965. Although undoubtedly in possession of this in- formation as to Sweeris' status, throughout its discussion of the bad-risk driver issue and its execution of the agree- ment on insurance at the conclusion of the grievance meeting, the Respondent gave the Union no reason to be- lieve that, in fact, one of the three allegedly bad-risk drivers about whom the parties had been conferring had actually been off the company payroll for some while. Moreover, even Regeth, the other member of the trio here involved, quit the Respondent's employ only a few days later.? Insofar as the record indicates, this was en- tirely of his own volition, for the Respondent made no at- tempt to prove that Regeth was ever notified that he had to secure his own insurance within 15 days or be discharged, the ultimatum which was given to Pagels. John A. Carroll, the Respondent's insurance broker, was called as a witness for the Respondent and testified, at considerable length, as to the procedure which he had followed with respect to driver safety records. Throughout the course of his extended appearance on the stand, Carroll impressed the Trial Examiner as a completely frank and credible witness. From this testimony, it is evident, and the Trial Examiner finds, that the following sequence of events transpired in connection with the driver reports in question: It was not until some- time in September 1965 that Carroll started receiving from the Respondent the driver traffic safety records which Hribar had had the drivers fill out as early as the preceding May. Carroll forwarded these reports to the Fireman's Fund Insurance Company. After examining the record submitted for each driver and comparing that with information secured from the files of the Wisconsin Motor Vehicle Department, the insurance company 7 According to a payroll tabulation introduced at the hearing, Regeth quit on November 27, 1965. HRIBAR TRUCKING , INC. 751 returned some of the drivers' records to Carroll with ac- companying memoranda which recommended that cer- tain action be taken as to their employment. About November 6, Carroll received such memos on employees Regeth, Sweeris, Pagels, Robert Klingbeil, and Robert Kau. A few days later Carroll received a similar report on employee Robert Novak. Within 2 days after receiving the memorandums from Fireman' s Fund, Carroll telephoned Leo Hribar and informed the latter that the in- surance company had recommended that several em- ployees be taken off driving duties. During this conversa- tion, Carroll mentioned the drivers named above and asked for a meeting with Hribar to discuss the matter more fully. Carroll testified that shortly thereafter and even before any conference could be arranged , Hribar telephoned him. According to Carroll , in this conversation Hribar specifically requested that he bring the records on Pagels and Sweeris to a grievance meeting that the Company was having with the Union on the following day. As found earlier, Sweeris, of course, had quit the Respond- ent's employ on November 5, as a result of which there could have been little practical need to review the driving record of an ex-employee. Carroll testified that, pursuant to Hribar 's request, the day after the telephone call he sought out Leo Hribar at the meeting where the Company and the Union were in conference and there turned over to the Respondent's president the insurance reports in question. Carroll could not recall whether this was on November 10 or November 17. From the testimony of Attorney Davis, however, it would appear to have been on the former date. According to counsel for the Employer , the reports arrived on November 10, just as the union and company representatives were leaving the conference room. Further, according to Attorney Davis, in connection with the information thus secured , on the following day he telephoned David Uelman, one of the counsels for the Union , to tell him that the issue of eliminating certain bad-risk drivers had been added to the list of grievances on the agenda and that unless the individuals involved were discharged, the Company might lose its insurance coverage. At the meeting on November 17, Pagels contended on his own behalf that Novak and Kau , as well as two others whom he named, had driving records as bad or worse than his own. Pagels' contention was turned aside by the Hribars with the comment that no one could have a worse driving record than he had. During this same discussion, as found earlier, in response to an inquiry from Business Agent Grimmer, Lee Hribar denied that the insurance company had forwarded reports on any other drivers. In fact, of course , at that very time the Respondent had ad- verse reports not only on Pagels, Sweeris, and Regeth, but also on Kau and Novak. The names of the latter; how- ever, were never mentioned during the conference by any of the company representatives. As a consequence of the Respondent's representation at the meeting on November 17 that Pagels , Regeth, and Sweeris were the only bad-risk drivers and that the Respondent's insurance was endangered by their con- tinued employment , the Union was induced to enter into the agreement whereby the three aforementioned drivers would be „iven 15 days to secure their own insurance coverage on the Hribar vehicle which each drove or be terminated. On November 22, the Respondent furnished Pagels with information on insurance coverage. Precisely 15 days later Pagels was discharged , allegedly for this reason as well as for having engaged in strike action. All of the insurance company memorandums on the drivers which were forwarded to the Respondent were in- troduced in evidence at the hearing in the instant case. An analysis of these documents discloses that the memo on Regeth did not demand that he be relieved of his driving duties. Instead, it merely requested more information about two accidents which he had.8 Notwithstanding this language in the communication from Fireman's Fund, at its meeting with the Union , the Respondent informed the Teamsters representatives that the insurance company had placed Regeth in the same category with Pagels and Sweeris. On the basis of the exhibits that are in the record of this case , that declaration was simply not true. A further analysis of the insurance company reports on Pagels, Sweeris, Novak, and Kau, which Carroll for- warded to Hribar and which the latter received before the grievance meeting of November 17, is very revealing. These communications used almost identical language in recommending that each of the four drivers be relieved of all driving duties. Thus, these memorandums from Fireman's Fund read, in relevant part, as follows: Pagels: We feel that he should be relieved of his driv- ing duties in the best interest of the risk .... Sweeris:... we feel that this driver should be re- lieved of his driving duties .... Novak: We feel he is a poor risk and should be re- lieved of his driving duties. Kau:... we feel that the driver should be relieved of his driving duties since his record has been con- sistently poor. Notwithstanding the fact that the insurance company placed Novak and Kau in the same category as Pagels and Sweeris , the names of Novak and Kau were never mentioned by the Hribars in their conference with the Union. Furthermore, notwithstanding the recommenda- tions which Fireman's Fund had made as to both of these drivers, neither Novak nor Kau was ever faced with the ultimatum of either obtaining his own insurance coverage or of being terminated . It was undenied that Leo Hribar protested to Carroll that no action should be taken as to Novak on the ground that he had been an employee for many years and Hribar was confident that , if given another chance , his driving record in the future would improve.9 Nor did the Respondent take any action as to Kau. Carroll testified that in the latter part of November, Leo Hribar told him that he would require Kau to secure his own insurance within 60 days. Although Kau testified that Leo Hribar spoke to him about the matter during this period, Kau conceded that apart from making some inqui- ries at one insurance agency, he made no effort to secure 8 The memorandum on Regeth from Fireman 's Fund concluded with the sentence "We'd appreciate your securing information about these two accidents so that we may analyze the driver [Regeth] further " [Emphasis supplied ] 9 Actually, Pagels had been in the Respondent's employ for 2 years longer than Novak 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his own coverage. It was undenied that thereafter the Company made no other demands on Kau that he get his own insurance, notwithstanding the fact that Kau remained on the payroll until the following March when he voluntarily left the Respondent's employ. The treat- ment which Hribar accorded Kau, as well as Novak, was, therefore, in sharp contrast with that meted out to Pagels who was granted only 15 days within which to obtain his own policy and who was notified immediately upon the expiration of that period that he was being discharged. Pagels had an admittedly poor driving record for a year or more preceding his dishcarge. At the same time, the records of the other drivers mentioned above were in the same category and rated as such by the Respondent's in- surance carrier. Pagels' difficulties did not begin until after he had been named the union steward. Upon his as- sumption of the steward's duties he manifestly an- tagonized the Hribars In a conversation with Wieselman, shortly after Pagels became the steward, Leo Hribar pre- dicted that "with [Pagels'] driving record, it wouldn't be hard to get rid of him at all.. . Pagels [is] just hanging on a string. And anytime he [Hribar] decided ... to get rid of him, all he'd have to do is cut the string." A few weeks later, Donald Hribar told Kenneth Tloughan that Pagels was "on his way out, that he thinks he's some kind of a king ... representing the union the way that he was ...... From the findings set forth earlier herein, it is apparent, and the Trial Examiner finds, that as a result of Pagels' ef- forts as a steward, he aroused the enmity of the Respond- ent and in the words of Lee Hribar, was considered "a troublemaker." At the grievance conference on November 17, 1965, the Respondent caused the union representatives to be- lieve that Fireman's Fund was insisting that Pagels, Sweeris, and Regeth be relieved of their driving duties and that unless this was done, the Respondent was in danger of losing its insurance coverage. At that time, as the Hribars well knew, Sweeris was no longer an em- ployee and as to Regeth, Fireman's Fund had not requested any action other than that the Respondent supply it with more information as to certain accidents which Regeth had had. At that time also, as the Hribars were aware, the insurance company had recommended that Novak and Kau, as well as Pagels, be relieved of all driving duties. At their meeting with the Union, however, the Hribars never mentioned the names of Novak and Kau. By their subsequent course of action as to Novak and Kau, it is obvious that, as to them, the Hribars ac- corded little, if any, weight to the recommendations of the insurance company. It was only as to Pagels' driving record that the Hribars demonstrated a zealous concern and it was only as to Pagels that they insisted the recom- mendations of the insurance company had to be adopted. Thus, while withholding the adverse information as to other drivers during its conference with the Union on November 17, the Respondent confined the discussion to Pagels and, at the same time, meretriciously included the names of Sweeris and Regeth in the bargaining. From the above findings as to the Respondent's disposition of the insurance matter it is manifest, and the Trial Ex- aminer concludes, that the Hribars deliberately misled the Teamsters representatives at the meeting on November 17 by withholding from them material and relevant facts as to the Respondent's insurance problem. Moreover, it is the further conclusion of the Trial Ex- aminer that this was done by the Respondent in order to effectuate the discriminatory termination of Pagels on the pretext that unless that employee secured his own in- surance, the Respondent was threatened with the loss of liability coverage on its entire truck fleet . Finally, the Trial Examiner concludes and finds that the Respond- ent's insistence after November 17, 1965, that Pagels secure his own insurance coverage was discriminatory as to that employee and in violation of his statutory rights under Section 8(a)(3) of the Act E. The Arbitration Award and Its Aftermath 1 The arbitration proceedings Immediately after their termination on December 7, 1965, both Pagels and Schultz filed grievances wherein they protested their discharges as unjust and requested that they be reinstated with backpay. On April 5 to 6, 1966, an arbitration hearing on these grievances was held before Arbitrator Zel S. Rice II of the Wisconsin Employment Relations Board. On July 27, 1966, the arbitrator issued his award which provided, in relevant part, that: Jerome Pagels and Romain Schultz shall be im- mediately reinstated with full rights under the labor agreement and shall receive compensation for lost wages for the time lost as a result of their discharges, less any compensation they may have received from other employment or unemployment compensation. The employer shall reimburse the Unemployment Compensation Division of the Wisconsin Industrial Commission in the amount of any unemployment compensation paid to Pagels and Schultz since the date of their discharge. Pagels shall be required within fifteen days of his reinstatement to submit proof to the employer that he has obtained insurance coverage, in accordance with the agreement of November 17, 1965. His failure to submit such proof within such period of time shall forfeit his right to continued employment. 2. Pagels' return to duty and his second discharge; findings and conclusions in connection therewith On August 5, 1966, pursuant to the arbitrator's award, the Respondent reinstated Pagels to his job. He once again assumed the post of steward for the Union. To celebrate his return to work at the Company, Pagels purchased a half barrel of beer that evening to entertain his fellow employees at the Wildwood, a tavern in the vicinity of the Hribar Terminal. A number of the drivers visited the tavern during the course of the evening. About 11:30 that night, Donald Hribar arrived there. Shortly before Hribar appeared, Ralph Datka and Lloyd Witt, two of the drivers, came to the tavern and joined the group at the bar. Pagels testified that Donald Hribar endeavored to engage him in a con- versation and told him that "if I did not push the Union and make any more trouble that [the Company] would not push the insurance deal." According to Pagels, he told Donald Hribar that he had no intention of getting his own insurance. Donald Hribar denied that he had any conversation with Pagels on this occasion. Witt and Datka testified that they did not hear Hribar make any comment about insurance to Pagels. Shortly thereafter, Datka and Pagels became embroiled in an argument HRIBAR TRUCKING, INC. 753 which developed into a violent brawl that was stopped only when the tavern owner called the police. The General Counsel alleges that the tavern fight was engineered by Donald Hribar and that the latter was responsible for the physical assault which Datka inflicted on Pagels. The two principals testified at length as to the incident at the Wildwood. Both are big men, physically, and very obviously not averse to settling an argument by resort to fisticuffs. It was apparent during their ap- pearance as witnesses and from their testimony that there had been enmity between them for a long while. It was likewise true that the relations between Donald Hribar and Pagels were very strained. The former, however, was much smaller than the latter and obviously no match in any physical encounter. Notwithstanding this difference in their sizes, there had been at least one occasion in the preceding months, after another tavern incident, when Pagels had struck Donald Hribar. Datka, Witt, and Hribar testified that prior to their ar- rival at the Wildwood, all of them had spent some time that evening at another tavern in the area. Witt testified that while at the first tavern the three of them talked about going to the party at the Wildwood to which Pagels had invited all the drivers. After having had several drinks at I he first tavern, the three of them proceeded to the Wildwood. When they arrived at that destination, Pagels and the other drivers had been drinking for several hours. From the testimony of those present, it is apparent that by that time, few, if any, of those present, including the newcomers, were completely sober. Although Donald Hribar denied having had any con- versation with Pagels, it is the conclusion of the Trial Ex- aminer that the latter was the more credible in this regard. From the testimony of Witt, it is evident that Hribar's ar- rival at the Wildwood was no happenstance and that he came to the tavern deliberately and after having discussed with Witt and Datka the fact that Pagels was having his party for the drivers there that night. Although Donald Hribar denied that thereafter he had any conversation with Pagels, it is the conclusion of the Trial Examiner, on the basis of the demeanor of these two witnesses when they testified about this incident, that the conversation occurred substantially as Pagels testified. On the other hand, it is the conclusion of the Trial Examiner that the General Counsel did not establish, as alleged in para- graph 8(b) of the complaint, that Donald Hribar aided and abetted a physical assault on Pagels. From the testimony of the witnesses and their demeanor at the time they testified, it was evident to the Trial Examiner that whereas Donald Hribar had made a point of arriving at Pagels' party in the tavern and engaging in the aforemen- tioned conversation with Pagels, Hribar's presence or ac- tions thereafter had little, if anything, to do with the brawl which subsequently developed between Pagels and Dat- ka. Both of the latter had longstanding personal dif- ferences and both were testy and belligerent individuals for whom the altercation in question was obviously not their first resort to blows in settling an argument. Whereas, Donald Hribar may have relished the likelihood that Datka would overcome Pagels during the ensuing fight, it is the conclusion of the Trial Examiner that Hribar was not responsible for initiating, or prolonging, the brawl. Consequently, it will be recommended that section 8(b) of the complaint be dismissed.'° About August 9, 1966, Lee Hribar offered Pagels a letter containing some information for securing his own insurance coverage. Hribar testified that he presented this data to Pagels and told him that he was doing so even though he did not feel that the Company was required to provide it. i l After examining the letter Pagels returned it to Hribar.12 On August 19, Lee Hribar questioned Pagels as to whether he had obtained his own insurance coverage. When the employee answered in the negative, Lee Hribar told him that under those circumstances there would be no further work for him. Pagels has not worked for the Company since that date. The General Counsel contends that since the basis for the discharge of Pagels on August 19, 1966, was predicated on the discriminatory insurance agreement of November 17, 1965, the second discharge was also dis- criminatory and a violation of Section 8(a)(3) of the Act.13 It is the conclusion of the Trial Examiner that this posi- tion is correct. Earlier herein, the initial treatment of Pagels with respect to the matter of insurance coverage was found to have been discriminatory. This discrimina- tion was never remedied during the period between Pagels' termination in December 1965 and his return to the Company in August 1966. Upon his reemployment, the Respondent notified him that it would require his ad- herence to the stipulation with the Union in November 1965 whereby Pagels was to secure his own insurance. When the employee failed to meet this requirement, he was discharged for a second time. Since the original discharge had been discriminatory, the second dismissal, for the same reason, was likewise violative of the Act. The Trial Examiner so finds. Similarly, it is the conclu- sion of the Trial Examiner that, by the action of Donald Hribar on August 5, in suggesting to Pagels that the Com- pany would drop its discriminatory insurance demand if the employee would "not push the Union," the Respond- ent violated Section 8(a)(1) of the Act. 10 The General Counsel also attempted to develop evidence that at one point during the fall of 1965, Donald Hribar had sought to enlist Robert Kau in a plan to beat up Pagels In support of this contention, the General Counsel elicited certain testimony from Kau as to various conversations with Donald Hribar during the period shortly after the collective-bargain- ing agreement was signed in September 1965. Kau was then one of the owner-operators who was being included for the first time under the provi- sions of the union contract. From his own testimony it is clear that at the time he did not relish the prospect. It was also evident from his testimony and his demeanor, particularly on cross-examination , that his rambling and discursive account of the various occasions when Donald Hribar al- legedly urged him to assault Pagels were totally lacking in credibility. 11 Lee Hnbaracknowledged that he did not send to the Union a copy of the insurance information offered to Pagels on this occasion 12 The letter included an item providing insurance for hauls within a 200-mile radius from the Respondent's terminal. In fact, this coverage was secured by the Respondent only for a short period during the winter when, for some of its work, it required this additional insurance. Carroll, the insurance broker, testified that this extended coverage was normally provided Hribar Trucking only from November through February or March 13 Some evidence was offered by Lee Hribar that subsequent to Pagels' return to work in August 1966, the employee had been lax about reporting for duty on time and that he had admonished him about this on several oc- casions. Pagels, however, was never informed that this was one of the reasons for his discharge. Nor did Lee Hnbar testify that any mention of this matter was made to Pagels on August 19, when the insurance ulti- matum was renewed Under these circumstances , the foregoing testimony must be considered in the nature of an afterthought and irrelevant to the issue as to the reason for Pagels ' termination in August 1966. 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The issue as to the arbitration award One other matter awaits resolution. This is the conten- tion of the Respondent, raised at both the hearing and in its brief, that the arbitration award, adverted to earlier herein, resolved all material issues as to the termination of both Pagels and Schultz and that the Board should defer to that disposition of the dispute. It is true that the Board may defer to an arbitration award in order to encourage the voluntary settlement of labor disputes and thereby promote collective bargaining. Spielberg Manufacturing Company, 112 NLRB 1080; Modern Motor Express, Inc., 149 NLRB 1507. On the other hand, the Board will not do so where the arbitrator "had no reason for . . . suspecting that [the discharge] might have been motivated by conduct protected by Sec- tion 7 of the Act"(DC International, Inc., 162 NLRB 1383), or where "the award was clearly repugnant to the purposes and policies of the Act" (International Har- vester Company, 138 NLRB 923, 927, affd. sub nom. Ramsey v. N.L.R.B., 327 F.2d 784 (C.A. 7)). The arbitration award here involved was concerned only with the question as to whether the collective-bar- gaining agreement permitted the Employer to terminate Pagels and Schultz. In concluding that the Employer's ac- tion was in violation of the contract, the arbitrator did not resolve the question as to whether any statutory rights of the employees had been violated. Moreover, the award required that Pagels would have to comply with the agreement of November 17, 1965, and secure his own in- surance coverage within 15 days after the Respondent reinstated him. In this Decision, the Trial Examiner has found that the imposition of this requirement on Pagels was discriminatory in the original instance. Its incorpora- tion in the arbitrator's award, in effect, perpetuated a dis- criminatory penalty. In this respect, therefore, the award of the arbitrator must be considered "repugnant to the purposes and policies of the Act" International Har- vester, supra; Zoe Chemical, 160 NLRB 1001; cf. I.A.M. v. United Aircraft, 337 F.2d 5, 11 (C.A. 2), cert. denied 380 U.S. 908; Precision Fittings, Inc., 141 NLRB 1034, 1041-43. Consequently, for this reason and because the employee's statutory rights were not in issue at the ar- bitration hearing, the Trial Examiner has resolved the is- sues in this case without reference to the arbitration award. F. The Alleged Violation of Section 8(a)(5) of the Act As found earlier herein, on September 20, 1965, the Respondent and the Union executed a collective-bargain- ing agreement, which by its terms applied to both the regular driver-employees and to the owner-operators with whom the Respondent had leased agreements. Shortly thereafter, according to the credible and undenied testimony of Ralph Wieselman, Leo Hribar called a meet- ing of all the owner-operators and spoke to them about the effects which the coverage of the new contract would have on their relationship with the Respondent. Wiesel- man testified that during the course of this meeting, Hribar told them that because the owner-operators would come under the health and welfare and pension plan pro- vided by the union contract he would have to increase the Company's percentage of the gross revenue from 20 to 25 percent.' 4 The provisions of the collective-bargaining agreement, insofar as they applied to the owner-operators, went into effect on October 17, 1965. That contract had an ad- dendum applicable to fleet owners and their relations with owner-operators which established a complex formula of rates for the leasing of equipment. It is clear that the Respondent was required by the ap- plicable carrier regulations for the State of Wisconsin to have written agreements with the owners of any leased equipment. PSC 60.03, Wisconsin Administrative Code.15 Whereas the collective-bargaining agreement has little on the subject of leases, the Employer's right to ex- ecute written leases with owner-operators is recognized in an attachment to that contract,16 and article IX of the collective-bargaining agreement provides that any in- dividual contract in conflict with its terms is null and void. 17 The new leases which the Respondent proferred to the owner-operators in October 1965 had a provision which required that the lessor carry his own liability insurance and spelled out in detail the minimum coverage require- ments and other provisions which would have to be satisfied in connection with such a policy. Ralph Wiesel- man, one of the owner-operators, testified that about Oc- tober 15, 1965, Leo Hribar called him to the terminal of- fice and asked that he sign one of these leases. According to Wieselman, in his conversation with Leo Hribar he ob- jected to the proposed new lease on the ground that it would require him to pay for the liability insurance and because he felt it was in conflict with the collective-bar- gaining agreement. Wieselman testified that prior to that time, insurance on the equipment which he leased to the Company was paid by Hribar Trucking. Wieselman declined to sign the document and severed his relations with the Company. The Respondent introduced several copies of what pur- ported to be earlier lease agreements which were offered to establish that prior to October 1965, the owner-opera- tors had been required to provide their own liability in- surance. Included among this collection of exhibits were two leases which bore Wieselman' s signature and which purported to be the finalized copies of leases which he signed on January 2, 1963, and on September 1, 1965, respectively. Both copies were printed forms and on each copy the printed language of paragraph 11, which dealt with insurance, began "Lessee agrees at his expense to carry public liability insurance, etc...." On the exhibits offered by the Respondent the word "Lessee" was crossed out and the word "Lessor" had been typed in. This change from the printed form, however, was neither initialed nor signed by Wieselman on either of the ex- hibits. The exhibits were offered by the Respondent late in the hearing and after both Wieselman and Leo Hribar, the two purported signatories thereto, had been excused from the witness stand. As a result, there was no oral 14 This was a reference to a provision in the existing lease agreements whereby Hribar received 20 percent of the gross revenue and the owner- operator received the remaining 80 percent 15 Pursuant to a commitment of counsel made during the hearing a copy of these regulations was submitted to the Trial Examiner after the close of the hearing. This copy appears in the exhibit file as Resp Exh 6 the number which was reserved for this document during the hearing. 16 See paragraph I1(f) of the "Addendum for Fleet Owners," which provides that any lease must include certain stipulated language 19 This article reads as follows- "The Employer agrees not to enter into any agreement or contract with his employees, individually or collectively which in any way conflicts with the terms and provisions of this Agree- ment. Any such agreement shall be null and void." HRIBAR TRUCKING, INC. 755 testimony offered as to the circumstances under which the printed language of paragraph 11 in the lease had been altered and whether this was done before or after Wiesel- man had signed the leases. Wieselman testified that for approximately 11 years he had leased his equipment to the Company under lease agreements wherein Hribar paid for the liability in- surance. At the time of the hearing he was no longer working for the Company and his testimony as to the terms of his lease arrangements was subjected to a thorough and searching cross-examination by able coun- sel for the Respondent. Throughout the course of this ex- amination he impressed the Trial Examiner as a frank and credible witness. His ownership of a tractor and trailer represented a substantial investment,'' and as the owner of such equipment he was, presumably, intimately acquainted with the details of his lease agreements with Hribar during the period in question. Consequently, in view of the Trial Examiner' s misgivings , set forth above, as to the manner in which the above-mentioned lease forms had been changed, it is the conclusion of the Trial Examiner that the oral testimony of Wieselman to the ef- fect that prior to October 1965 he had never paid for the liability insurance on his equipment is credible and must be accepted as true. The Respondent offered no evidence that it had ever discussed with the bargaining agent the terms of the lease agreement which it required the owner-operators to ex- ecute. Business Agent Lotharius credibly testified that it as not until the latter part of November 1965 that he learned that leases were in use. According to Lotharius, at that time Romain Schultz brought to the union hall a copy of the lease which he had signed. Lotharius testified that neither prior to that time, nor later, did the Company bargain with the Union over the terms or any changes in the leases. During April and May 1966, the Respondent was en- gaged in an exchange of correspondence with the Wiscon- sin Public Service Commission with respect to other provisions of the aforementioned lease. According to this correspondence, the Public Service Commission ob- jected, inter alia, to the inclusion in the lease of a term which provided that any conflict in the lease with the ex- isting collective-bargaining agreement would be null and void. The Public Service Commission held this unac- ceptable on the ground that the lease should clearly state that the provisions of chapter 60 of the Public Service Code were paramount. In a written answer to this letter the Respondent accepted the modifications proposed, as well as certain other suggestions. Attorney Davis, coun- sel for the Respondent, conceded that these changes were made in the lease agreements without notification to the Union or its representatives. On the foregoing facts, it is evident that the Respond- ent entered into various unilateral changes in the terms of the lease agreements which it required the owner- operators to sign in October 1965. This evidence would support a finding that the Respondent had violated Sec- tion 8(a)(5) in that period were it not for the fact that the charge upon which the complaint is based was not filed until May 2, 1966. As a result of the 6-month limitation set out in Section 10(b) of the Act, no unfair labor prac- tice finding may be based on the unilateral changes which the Respondent made in the leases which it required the owner-operators to sign prior to November 2, 1965. On the other hand, this limitation is not applicable as to the changes which the Respondent subsequently made in the leases as a result of its correspondence with the Wiscon- sin Public Service Commission. Whereas most of these changes were as to form, and not substance, the Union was entitled to know that such changes were under con- sideration and should have had a chance to discuss them with the Respondent. That it was not provided such an opportunity, constituted a disregard by the Respondent of its obligations under the Act and was a violation by the Respondent of Section 8(a)(5) of the Act. N.L.R.B. v. Stafford Trucking, Inc., 357 F.2d 829 (C.A. 7). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described 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 of commerce. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and the Union is a labor organization, all within the meaning of the Act. 2. All of the Respondent's truckdrivers, ware- housemen and helpers, excluding office clerical em- ployees and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargain- ing. 3. At all times material the Union has been the exclu- sive representative, for the purpose of collective bargain- ing within the meaning of Section 9(a) of the Act, of all the employees in the aforesaid appropriate unit. 4. By unilaterally making changes in the lease agree- ments for its owner-operators the Respondent has vio- lated Section 8(a)(5) of the Act. 5. By discharging Jerome Pagels on December 7, 1965, and on August 19, 1966, and Romain K. Schultz on December 7, 1965, because of their union and con- certed activities, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 6. By interfering with, restraining, and coercing em- ployees in the exercise of their rights guaranteed under Section 7, the Respondent had engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 8. The General Counsel and the Charging Party have not proved by a preponderance of the evidence that the Respondent interfered with, restrained, or coerced its em- ployees in the exercise of the rights guaranteed by the Act, except by the specific acts and conduct found herein to have been violative. 18 There was testimony in the record that the type of trailer and tractor unit used in the Respondent's operations was valued at from $15,000 to $18,000 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, the Trial Examiner will recom- mend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discriminatorily discharged Jerome Pagels on December 7, 1965, and again on August 19, 1966, and Romain K. Schultz on December 7, 1965, it will be recommended that the Respondent offer them immediate and full reinstatement to their former or substantially equivalent employment and make them whole for any loss of pay they may have suffered by reason of the discrimination practiced against them by payment to them of a sum equal to that which they normally would have earned from the date of their discharge to the date of the offer of reinstatement, less the net earnings during said period, if any.''' The backpay provided for herein shall be computed in accordance with the Board's formula set forth in F.W. Woolworth Com- pany, 90 NLRB 289, with interest thereon at the rate of 6 percent per annum computed in the manner prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. As the unfair labor practices committed by the Re- spondent are of a character striking at the root of em- ployees rights guaranteed by the Act, it will be recom- mended that the Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, the Trial Examiner hereby issues the following' RECOMMENDED ORDER Hribar Trucking, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in a labor organization, or the exercise of protected concerted activities, by discharging employees or in any other manner dis- criminating in regard to hire or tenure of employment, or any term or condition of employment (b) Unilaterally changing the terms or conditions of the lease agreements with its owner-operators (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to 19 In Schultz ' case however the backpay liability of the Respondent must be held to have terminated at some time in August 1966 This is the conclusion of the Trial Examiner on the basis of the sequence of events set forth below In a letter dated July 29, 1966 and in compliance with the arbitration award of July 27 1966 the Respondent offered Romain Schultz im- mediate reinstatement and backpay This letter was sent to Schultz' last known address in Anchorage Alaska A telegram signed by Schultz and dated August 12. 1966 stated that he had received the Company's letter on August I I and that he was returning to Wisconsin and his job with the Respondent via the first available air transportation Schultz. however, did not, in fact. return At the hearing the General Counsel conceded that his office had had no contact with Schultz and that, so far as could be ascertained, he was unavailable On this state of the record it would appear that the Respondent must renew its offer of reemployment to Schultz, in compliance with the terms of the Recommended Order that appears below On the other hand since the Company's offer of reemployment and backpay as of July 29, 1966, was unconditional insofar as the employee knew it must be held to have self-organization , to form labor organizations , to join or assist any labor organization , to bargain collectively through representatives of their own choosing , and to en- gage 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 might be affected by an agreement requiring membership in a labor organization as a condition of em- ployment , as authorized in Section 8(a)(3) of the Act, as modified by the Labor- Management Reporting and Dis- closure Act of 1959. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Jerome Pagels and Romain Schultz im- mediate and full reinstatement to their former or substan- tially equivalent employment which they enjoyed prior to their discriminatory discharges, and make them whole for any loss of pay they may have suffered as a result of said discharges in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement in accordance with the Selec- tive Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) 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 or appropriate to analyze the amount of backpay due (d) Post at its terminal in Caledonia, Wisconsin, copies of the attached notice marked "Appendix. `20 Copies of said notice, to be furnished by the Regional Director for Region 30, after being duly signed by the Respondent's representative, shall be posted 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 Respond- ent to insure that said notices are not altered, defaced, or covered by any other material (e) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply here with.21 IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges any unfair labor practices, other than as herein specifically found. terminated the Respondent 's liability for back wages upon the receipt of such offer by Schultz Research Designing Service, 141 N LRB 211, 216 The record is not complete as to precisely when this occurred, although from Schultz ' telegram this would appear to have been August I I, 1966 That determination, however, is a matter that may appropriately be left for the compliance stage of this proceeding Eastern Die Company, 142 NLRB 601,604,enfd 340F2d607(C A I) 20 In 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 U nited States Court of Ap- peals 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 Re- spondent has taken to comply herewith " APPENDIX NOTICE To ALL EMPLOYEES HRIBAR TRUCKING, INC. 757 Pursuant to the Recommended Order of a Trial Ex- aminer 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 em- ployees that: WE WILL NOT discourage our employees from forming or joining a labor organization or from en- gaging in protected concerted activities by discharg- ing them, or in any other manner discriminating against them in regard to their hire or tenure of em- ployment or any term or condition of employment. WE WILL NOT unilaterally change the terms or conditions of employment of our employees in the following appropriate bargaining unit: All truckdrivers , warehousemen and helpers, exclusive of office clerical employees and super- visors. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization , to form labor or- ganizations , or to join or assist any labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in concertedac- tivities 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 Report- ing and Disclosure Act of 1959. WE WILL offer Jerome Pagels and Romain K. Schultz immediate and full reinstatement to the jobs which they held prior to their discriminatory discharges , and will make them whole for any loss of pay which they may have suffered as a result of their illegal discharges. Dated By HRIBAR TRUCKING, INC. (Employer) (Representative) (Title) NOTE: We will notify the employees named above if presently serving in the Armed Forces of the United States of their 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, Second Floor Commerce Building, 744 North Fourth Street, Milwau- kee, Wisconsin 53203, Telephone 272-3861. 308-926 0-70-49