Bowen Transports, Inc.

584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bowen Transports, Inc. and Harold E. Jones. Case 14-CA-5063 July 21, 1970 DECISION AND ORDER By MEMBERS FANNING, MCCULLOCH, AND JENKINS On January 13, 1970, Trial Examiner Benjamin A. Theeman issued his Decision in the above-enti- tled proceeding, finding that Respondent Bowen Transports, Inc., 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, the Respondent and the General Counsel filed exceptions to the Trial Examiner's Decision with supporting briefs. 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, the briefs, and the entire record in the case , and hereby adopts the findings , conclusions, and recommenda- tions of the Trial Examiner. 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, Bowen Transports, Inc., Mattoon , Illinois, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.' ' The requirement of sec 2 (a) of the Order for the return of the an- hydrous ammonia operation to the Mattoon terminal for haulage from that terminal shall be subject to any contrary agreement that may hereafter be reached as a result of collective bargaining between the Respondent and the Union port, Inc., had engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3 ) and Section 2(6) and (7 ) of the National Labor Relations Act, as amended , 29 U.S.C. 151, et . seq. (the Act) by: (a) threatening employees (drivers of its trucks) with loss of overtime if they chose Teamsters Local #26, International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of Amer- ica (Union) to represent them; (b) advising the drivers that it would be futile for them to choose the Union to represent them, and , after a contract with the Union had been executed, advising the drivers that it was futile to have selected the Union; (c) threatening the drivers with (i) discharge, (ii) closing of the Mattoon terminal, or (iii ) the transfer of the work of the Mattoon terminal to another ter- minal because of their union activity or, if they filed union grievances against the Respondent; (d) discharging or laying off drivers because of their union activities and refusing to reinstate them or reimburse them for hours of lost work; and (e) transferring work from the Mattoon terminal to other terminals or to independent contractors because of the union activities of the drivers, thus causing the drivers to lose hours of work and refus- ing to reimburse the drivers for such loss. Respondent denies the commission of any unfair labor practices, and contends (a) "that such changes ... in its methods of operations, the reas- signment of equipment, the transfer of employees, layoffs, loss of work , use of independent contrac- tors and similarly alleged activities of Respondent have all been dictated by the economics of the situation and prudent management of the company ..."; and (b ) that the discharge of driver Jones (the Charging Party ) resulted from his serious ill- nesses and was recommended by a physician after a medical examination. Pursuant to due notice, a hearing was held before me on July 29, 30, and 31, and August 1, 1969, in Charleston , Illinois . All parties appeared and were represented by counsel . They were given full op- portunity to participate , adduce evidence, examine and cross-examine witnesses, and argue orally.2 The General Counsel and Respondent submitted briefs. Upon the entire record in the case and from my observation of the witnesses '3 I make the following: TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BENJAMIN A. THEEMAN , Trial Examiner: The complaint' alleges that Respondent Bowen Trans- ' The original complaint was issued on May 27, 1969, on a charge dated April 9, 1969, filed by Harold E Jones, an individual "Respondent 's motion to dismiss the complaint is granted in part and de- nied in part in accord with the findings hereinafter made 3 The testimony of all witnesses has been considered In evaluating the testimony of each witness, his demeanor was relied upon. In addition, in- consistencies and conflicting evidence were considered The absence of a statement of resolution of a conflict in specific testimony, or of an analysis of such testimony, does not mean that such did not occur See Bishop & Malco, Inc., d/b/a Walker's, 159 NLRB 1159, 1 161 Further, to the extent that a witness is credited only in part, it is done upon the evidentiary rule that it is not uncommon "to believe some and not all of a witness' testimony " N.L R B. v. Universal Camera Corporation, 179 F.2d 749, 754 (C.A 2) 184 NLRB No. 59 BOWEN TRANSPORTS, INC. 585 FINDINGS OF FACT I. BUSINESS OF RESPONDENT Respondent, a Delaware corporation, maintains its principal office and one of its terminals in Mat- toon, Illinois . Respondent is a contract carrier in motor truck transportation possessing intrastate authority for the transportation of goods and com- modities in Illinois. Respondent maintains other ter- minals in Illinois, at Tuscola, Hillsboro, Lincoln, and Chicago. During the calendar year ending December 31, 1968, Respondent performed transportation ser- vices valued in excess of $257,000 for U.S. Indus- trial Chemical Company (U.S.I.). U.S.I. during the calendar year ending December 31, 1968, manu- factured, sold, and distributed at its Tuscola, Il- linois, place of business products valued in excess of $37,600,000 which were shipped to points out- side Illinois . During the same period U.S.I. purchased goods and materials from points outside of Illinois which were shipped to points inside Il- linois in an amount exceeding $16,400,000. It is found that Respondent is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE UNION Teamsters Local #26, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Hel- pers of America is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The issues of this proceeding are sufficiently set forth in the statement of the case. B. Background (Also the Mattoon Terminal Is Operated Differently Than Other Terminals) Respondent was incorporated in 1950 by H. G. Bowen, its present president . Then Respondent operated one terminal in Hillsboro from which glass was hauled in truckloads . Shortly after, Respondent moved its headquarters to Mattoon, to a newly con- structed office and garage . Mattoon has been the principal office of Respondent since . In the early 1950's no haulage was done out of Mattoon. In 1960 Bowen sold Respondent to William Paul- lin, who had previously been employed as Respon- dent's manager. By then, the business had increased by the addition of two terminals at Lincoln and Tuscola. The three terminals at Hillsboro, Lincoln, and Tuscola were operated differently than the one at Mattoon. At Hillsboro, Lincoln, and Tuscola the drivers had regular year-round employment hauling products that were nonseasonal. They operated under a union contract that provided for a guaran- teed wage. The products generally hauled were: Hillsboro and Lincoln terminals, glass; and Tuscola, where U.S.I. was located, chemicals. From 95 per- cent to 98 percent of Respondent's haulage was done at these three terminals. By this time Mattoon had become a terminal also. The products hauled were mainly seasonal: road oil from about May through September; an- hydrous ammonia, a fertilizer, 4 for a period of from 4 to 6 weeks in the early spring and possibly a few weeks in the fall; propane and butane gas in the later winter months;5 beer, a low revenue item, was hauled on a weekly basis; and occasional emergen- cy trips or "make work" trips to pick up trailers from other areas to be brought back to Mattoon, etc.' Mattoon drivers were used to fill in temporari- ly at Respondent's other terminals when the work there demanded additional men. This type of em- ployment resulted in the Mattoon drivers having peak riods of employment with long daily driving times ,, interspersed with valley periods of little or no driving time. As a result, the Mattoon terminal was operated on the basis of "make it while you can" during the season to make up for the slack period to follow. During the season some made up to $300 per week. During the off-season however some of the drivers made as little as $50 per week." Under the above circumstances, Respondent found that the type of business done at Mattoon made payment of a guaranteed wage uneconomi- cal." Accordingly, Mattoon was not operated under the union contract. Other than the guaranteed wage, and some other items not pertinent here, Respondent paid the Mattoon drivers in accord with the terms of the current union contract effec- tive at its other terminals. About 1963, the Wage and Hour Division, of the Department of Labor, inspected Mattoon. It noted the absence of the union contract and informed Respondent that without it, Respondent would have to comply with the regulations requiring wage pay- ment on an hourly basis. Respondent complied but 4 This was a US I product . Though produced at Tuscola it was scheduled for haulage by Mattoon drivers. ' A pressurized trailer called "blimp" was used to haul the anhydrous, propane, and butane. ' Another example of a "make work " trip was specified by Bowen , as fol- lows. Well, I pointed out that we occasionally made work for them I cited as one example that we had a trailer rebuilt in St. Louis, it was a Hills- boro trailer, and I had never used this outfit before, so I had the driver go down and get it and bring it back to Mattoon The economical and the logical thing from a cost standpoint would have been to have had a Hillsboro driver go down and get it because they are only 50 miles from St. Lotus, but I had him bring it into Mattoon and then I had him take it to Hillsboro and deadhead back ' Testimony shows that during the season, some of the Mattoon drivers worked as much as 20 hours a day , and around the clock also ' The guaranteed wage under the union contract in 1968 was $ 184 32 It frequently occurred in other years that the drivers made 50 percent or less of the guaranteed wage ' See sec D below for the explanation. 586 DECISIONS OF NATIONAL nevertheless continued paying the men in accord with the union contract . To accomplish this, Respondent established two sets of books for Mat- toon : one based upon the provisions of the union contract (except for the guaranteed wage); the other on the requirements of the Wage and Hour Division. The current union contract provided that the drivers be paid on a miles-plus -hours basis; i.e., so much per mile plus a stated amount per hour of loading and unloading time . 10 The union contract made no provision for overtime . Wage and Hours required that Respondent pay the men on an hourly basis; i.e., 40 hours straight time plus overtime at time-and-a-half where it occurred . The system devised by Respondent in establishing its dual set of books worked as follows : Using the weekly gross wage paid the driver at the union rate the Respon- dent derived an hourly base rate that would yield the same gross amount computed on a straight time and overtime basis." Differences in pennies were adjusted in favor of the men to the nearest quarter hour. Every week the Respondent gave its Wage and Hour computations to the drivers so that they could fill out their timecards. Under this dual book- keeping system the hours the drivers worked had practically no direct relationship to the hours re- ported for Wage and Hour purposes . Also, this dual system created confusion among the men as to whether they always received the correct pay and created confusion about the payment of overtime. Many times the drivers consulted the bookkeeper for explanations of the weekly payment . Errors in pay did occur but they were usually corrected the following week or shortly thereafter. Early in 1968 , Bowen bought the business back.12 In June 1968 he took over active management. The business was conducted in about the same manner as mentioned above . At this time , Respondent em- ployed overall about 30 drivers and 5 administra- tive personnel. Bowen introduced economics in the operation of the business , spent in excess of $300,000 to replace obsolete equipment with modern tractors and trailers , and commenced an active campaign to sol- icit new business. 13 The haulage portion of the Mat- toon terminal had always been run at a loss. The new campaign attempted unsuccessfully to increase the haulage business at Mattoon to cut down this loss. In June 1968, when Bowen took over active management, there were eight drivers operating out of Mattoon . In order of seniority they were Jack 10 At the time of the hearing the union rate was 11 cents per mile plus an allowance per trip of 1-1/2 hours for loading and unloading at $3 84 per hour 11 Because overtime was included , the base rate used by Respondent was always lower than the hourly rate called for in the union contract At the time of the hearing Respondent was using $3 16 per hour for wage and hour purposes instead of the $3 84 figure mentioned in the preceding foot- note 12 In May 1968, Bowen acquired Cushman Transports , Inc , a carrier LABOR RELATIONS BOARD King, Aaron Oakley , Harold Brandon , Harold Jones, Charles Barr, David Galbreath , Lloyd Mc- Connell ,'" Timothy Gass, and Joseph Preston. The dispatcher was a Mr. Tutt. Runs or work was as- signed strictly according to seniority . The driver with the most seniority received the best run (the one that paid the most ) and so on down the line until all assignments were made . The dispatcher made the driving assignments . The usual method was to call the assigned driver at his home before 5 p.m. the day before the run was to be made. C. King Becomes Dispatcher and a Supervisor In June or July 1968 , Tutt informed Bowen that he was going to leave and the dispatcher 's job was posted. King and Jones were the only drivers who applied. Bowen gave the job to King . Respondent contends that King in the dispatcher's job was not a supervisor. This contention is error. The record clearly establishes King to be a supervisor. Bowen's testimony shows that he considered the dispatcher's job to be a supervisory one. In discussing the action he took in promoting King, Bowen compared it to the way in which he handled promotions when he formerly operated a big trucking line. Then he always followed the practice of promoting from the ranks. "[WI e always offered our supervisory staff jobs to the rank and file, the drivers or the dock workers and so on who were qualified." That practice he followed in making King the dispatcher.15 Bowen testified that he visited the Tuscola ter- minal about once a week. This terminal was about 25 miles from Mattoon . In Bowen's absence the Tuscola operation is under the charge of the dispatcher . He is the man who takes orders from the customer and gets the equipment lined up, etc., and "more or less [does] the same job that Jack King does in Mattoon." The number of drivers at Tuscola varied from time to time. Sometime in 1968 there were eight. There is little doubt that under such isolated conditions the dispatcher at Tuscola exercised supervisory functions. From the middle of April to about the middle of July 1969, Bowen sent King to Tuscola to be in charge of operations there. This action confirms the super- visory character of King's position. The record shows that King had authority to hire and fire. Preston, seeking employment at Respon- dent, spoke to King several times and was told there was no work. King gave him an application to fill out, which Preston did and returned . Later King licensed under the interstate Commerce Commission It was based in Chicago with other terminals in Detroit and Cincinnati 13 He brought his son Peter Bowen in as a sales manager and made him vice president 14 About October 1968 Galbreath and McConnell transferred to Chicago to work for a terminal that Bowen was opening there m Prior to becoming dispatcher, King obtained an withdrawal card from the Union informing the union representative that he was becoming a dispatcher The unit of employees at the terminals covers only drivers BOWEN TRANSPORTS, INC. 587 put Preston to work . Preston's only contact prior to employment was King . King testified that Preston's application was approved by someone higher up but was unable to specify the individual . There is no evidence in the record that Preston was in- formed by King that his employment was subject to approval by any person other than King. The record shows further that the drivers understood that King had the right to hire and that other drivers were hired by him under the above procedure. In addition to the above, King had authority to lay off drivers, direct them not to come to work, or direct them to take additional work . Oakley had been driving for about 18 hours in 1 day. On his return, King ordered him out on another run. Oakley objected. King insisted "These have got to go out." Oakley stated he was going home and going to bed . King told him if that 's the way he thinks about it, "you just go home and you stay there." Oakley said, "O.K." and changed his clothes to go. At this time, King told him to forget it, to go home , "get your rest and come back and take these orders." Oakley did so. Another instance occurred on March 18 , 1969. Oakley was released from the hospital after an operation . He reported back to the terminal . King ordered him to get releases from his doctor and surgeon before he would assign him to any work. King, on several days in 1969, directed Barr to drive another load or take additional loads after Barr had already driven 10 hours on that particular day. King directed the Mattoon drivers to report at other terminals to drive trucks. Gass testified that King "wouldn't ask you" to go to Tuscola, "He'd ordinarily just call you and tell you to." Bowen testified that King "would be the one to ask [the drivers ] if they wanted to transfer to another terminal ." Barr testified that in February 1969 he asked King for a transfer "back to Mattoon." The record contains other evidence of King's su- pervisory status . In light, however, of N.L.R.B. v. Metropolitan Life Insurance Co., 405 F.2d 1169, it would only lengthen this decision unnecessarily to list them . Metropolitan Life holds that Section 2(11) speaks in the disjunctive16 and to constitute a person a supervisor it is sufficient to show that the person performs any one of the functions, or, in the performance of his duties, possesses one of the enu- merated powers and responsibilities set forth in Section 2(11). King's responsibilities and duties as above stated come clearly within this holding. Ac- cordingly, it is found that King is a supervisor within the meaning of Section 2(11) of the Act.17 D. The Union Campaign Begins at the Mattoon Terminal After Bowen's return in 1968, the drivers at the Mattoon terminal, desirous of working under a union contract, started organizing. In July Jones went to the Mattoon union hall and obtained cards. King had recently been made dispatcher and was not included in the movement. By early September each Mattoon driver had signed a card. Some were solicited by Jones; others signed cards at the union hall. Jones was considered the key employee in the organization effort by Bowen and the employees. In August 1968 the drivers held a few meetings in the union hall at Mattoon with Bounds, state or- ganizer for the Union. At one he told them that he felt voluntary recognition from Respondent would be forthcoming because of the union contract exist- ing at Tuscola.18 In September 1968 Bounds called Respondent to arrange a meeting. In the meantime, Bowen had had an accident, had been injured, and was away from work. Bounds informed Jones and some other drivers that he intended to wait for Bowen's return. On October 22, 1968, Bounds and another union representative met with Bowen and his son at the Mattoon terminal.19 None of the drivers was present. The discussion was friendly. The Union asked for recognition. Respondent asked for an extra week to contact its attorney. The meeting ended on that note. Although there were several telephone calls between Respondent and the Union thereafter, and there were meetings between Respondent and the drivers, the union representatives had no further meeting with Bowen until January 21, 1969, when a union contract was signed, effective February 1, 1969. This contract was the same as the Tuscola contract and included a guaranteed wage clause. Under this clause, a union driver received at least the guaranteed wage if a driver of lesser seniority was employed at any time during the particular week. It was the operation of the guaranteed wage clause that gave rise to Respondent's problems at the Mattoon terminal. Seasonal or irregular haulage did not fit a guaranteed wage. Bowen explained this as follows: Oh, I told them that under the guarantee they would limit us to working or hauling, I guess I should say, only when we knew that freight which we knew about at the beginning of the week. * 1e Sec 2(11) defines a "supervisor" of a merely routine or clerical nature, but requires the use of indepen- any individual having authority , in the interest of the employer , to dent judgment hire, transfer, suspend, lay off, recall, promote, discharge , assign, re- The cases cited by Respondent in support of its contention that King ward, or discipline other employees , or responsibly to direct them , or is not a supervisor are inapposite to adjust their grievances, or effectively to recommend such action, if 'B It had been in effect about 15 years in connection with the foregoing the exercise of such authority is not Bowen incorrectly places this meeting in early December 1968 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I tried to explain to them by example that if we started out the week with two drivers, the union contract has a clause in it which has a scale in there showing how many extra drivers you can have. For example, if you had two regular drivers, the guarantee applies to 80 per cent of the drivers. Well, obviously you can't take 80 per cent of two drivers and come out with an even figure, so there is a scale in there which says that, for example, if you have two drivers, you can have one extra. Now, then, let's assume that on Thursday or Friday of that week your very best customer calls up and says I've got a load of freight I want you to move, and these three drivers are out on that particu- lar day, at that particular time they are out on runs.... I was trying to explain to them by way of ex- ample what would happen, that we would have to turn that Thursday or Friday load down because we would have to call out Driver No. 4, and that would make us pay driver No. 3 a full week's pay even though he might only have worked one or two days. Obviously, no opera- tor can do that. E. Bowen Meets with Jones and Gass in Early November 1968 When the road oil season was drawing to a close, in early November 1968 , a meeting occurred between Bowen and drivers Jones and Gass, ar- ranged at the request of the latter two. Union ac- tivity or union organization was not mentioned. Jones in effect told Bowen he didn't know how to run the business and asked Bowen, "What are you doing about getting business ?" Bowen replied, "We've got more solicitors now by far than Paullin ever had, we are working on it all the time." Bowen gave Jones the same response when the latter asked what would happen when the road oil season was over. The hauling of butane (the next seasonal product) was next discussed. There was agreement that the rate paid the drivers was too low and was a cause for dissatisfaction. Bowen pointed out that 20 Respondent's customer was Marathon Oil located in Robinson, Il- imois Heretofore, Marathon had purchased butane from Phillips Petrole- um at Tuscola. Respondent then hauled the butane in blimps dunng the winter months using Mattoon drivers At or about the time of this meeting, Bowen had been informed that Marathon was making its own butane at Robinson and would no longer need transportation from Tuscola The record contains no haulage of butane during the winter of 1968-1969 until January 1969 Then, a breakdown occurred at the Marathon plant and in January 1969 Respondent hauled 21 loads Jones was the driver " After attending this meeting, Miller disappears from the record King testified he was present during the entire meeting His testimony is of a general nature with regard to the conversation King does confirm that Bowen said they "would be better off without" the Union. King when Paullin had contracted to haul butane he had met the rail rate and that no trucker could make money hauling on that basis . Bowen also told Jones and Gass that his customer had advised him that there would be no further butane haulage this winter because his customer was manufacturing bu- tane at its plant instead of having it delivered.20 The meeting ended with nothing determined. F. Meeting on November 17, 1968, Between Bowen and the Mattoon Drivers Also in early November, Jones and the drivers set about arranging a meeting with Bowen to discuss the union contract. They spoke to King about it. King spoke to Bowen and reported back that there would be a meeting . Bowen and King agreed that it would be best to hold the meeting on a Sunday. No driver worked on Sunday and the Mattoon drivers were usually home for that day. King, accordingly, set the meeting day for November 17, 1968, and posted a notice on the bulletin board. Present at the meeting were all the drivers then working at Mattoon: Oakley, Brandon, Jones, Barr, Gass, Preston, and a new driver, Miller'21 and Gal- breath and McConnell who were working at the Chicago terminal . Of these, Oakley, Jones, Barr, Gass, and Preston testified with regard to the events of the meeting. Present on behalf of Respondent were H. G. Bowen, Peter Bowen, King, and Wiley, an office employee. Of these H. G. Bowen and King testified. No union representative was invited to or present at the meeting. The meeting lasted about 1- 1/2 hours during which much discussion occurred on the advantages and disadvantages of a union contract at Mattoon. The drivers testified that Bowen threatened them with economic reprisals if the drivers went union. Bowen denied that he made any threats.22 He testified that on request of the drivers he explained to them the disadvantages of working under the contract, particularly that they would be limited to the earnings of the guaranteed wage; advised them that to all intents and purposes they had everything now that the contract would give them, except pen- sion, and concluded that in his opinion "they would be better off" without the Union.23 On the credited testimony of the drivers it is found that at the November 17 meeting Bowen told the drivers that if they wanted a union contract testified A Well, he asked Mr Bowen what he thought about it [the contract] O Did you hearMr Bowen's discussion after that" A Yes What did Mr Bowen say" A He said, well, he said, "If you want a contract we can have a con- tract, we've got them everywhere else," but, he says, "I think you would be far better off without one " Peter Bowen was present at the hearing but did not testify. I The drivers testify that, among other things, Bowen said they "would be hurting themselves" by getting a union contract BOWEN TRANSPORTS, INC. 589 they could have one but, if they got it, he would close out the operation at Mattoon and hire drivers in Tuscola to do the work. Further he told them that if they were working at Mattoon under the contract they would be limited to earning the guaranteed wage thus cutting their wages down; they would "lose [their] extra work"; and their "overtime would be cut off."24 Such threats of economic reprisal in connection with a union cam- paign are violative of Section 8(a)(1) of the Act.25 Bowen's actions immediately after the meeting give additional substance to the foregoing conclu- sions. On November 20 he placed an advertisement in the Journal Gazette, the daily newspaper of Mat- toon. The significant portion read as follows: WANTED the point of origin of the U.S. Steel movement. In accounting for the use of the Mattoon paper, he stated that it had been difficult to obtain owner- operators in Chicago26 and that he might have more success in Mattoon even though the number of owner-operators in Mattoon (a city of 19,000 population) was limited. Further, he testified that he used the Mattoon newspaper because that was where Respondent's offices were and the owner- operators would have to come to Mattoon to be in- terviewed. When questioned, admitting that November and December were lean months, Bowen did not reasonably account for the fact that the advertisement appeared late in November so soon after the meeting. In view of the foregoing, it is concluded that the advertisement was intended to further Bowen's statement at the meeting of November 17 to take steps to close down the Mattoon terminal. OWNER-OPERATORS INTERSTATE AND INTRASTATE CUSHMAN TRANSPORTS, INC. BOWEN TRANSPORTS, INC. The place of contact was Respondent's address in Mattoon. The advertisement ran for 12 days and for another 15 days from December 3, 1968. Owner-operators are individuals or concerns who own and operate their own trucks on a contract ba- sis. The use of owner-operators at Mattoon would decrease the haulage by drivers employed there by Respondent. Bowen's testimony as to the reasons for the ad- vertisement was vague and conflicting as to the tim- ing and purpose. When first questioned he stated the purpose of the advertisement was to find drivers that he might use during the road oil season beginning in April-May 1969. Subsequently he stated that the advertisement was to find owner- operators to be used in Chicago by Cushman Trans- ports. He recalled that at that time Cushman was negotiating with U.S. Steel for some business that would require haulage out of Chicago. With regard to this movement he stated that he did not know 24 Gass, Jones, and Preston testified that Bowen said "there would be no more overtime " Bowen denied he made the statement In his support, he pointed out that the union contract does not provide for overtime In November 1968 the union contract was not in effect at Mattoon, and the guaranteed wage was not being paid There is considerable doubt as to what "overtime" may have referred to in the Mattoon operation The drivers were confused because of their knowledge that overtime was in- cluded as an item in the double system of bookkeeping set up by Respon- dent to comply with Wage and Hour Regulations Jones testified he worked overtime but never got paid for it The record contains testimony that over- time may refer to the "extra work" at the Mattoon terminal mentioned above Whatever the interpretation of overtime, there is little doubt that the term, in the context used by Bowen when speaking to the men, con- veyed to the men the idea that they would lose income if they went union This was the particular thought he was pressing Such a statement is proscribed by the Act 25 Respondent contends that Bowen's statements were explanatory, G. Transfer and Loss of Work The General Counsel alleges that since the November 17, 1968, meeting Respondent, in furtherance of his antiunion campaign, transferred equipment and work from the Mattoon terminal to independent contractors and to Respondent's other terminals, thereby causing Oakley, Brandon, Jones, Barr, Gass, and Preston to lose hours of work. The ensuing discussion will deal with this contention month by month. 1. The movement of traffic during the period November 17, 1968, through February 1969 By November 1968, the date of the meeting between Bowen and the drivers, the drivers out of Mattoon were, in order of seniority, Oakley, Bran- don, Jones, Barr, Gass, and Preston.27 Of these six Barr was temporarily stationed at the Decatur ter- minal and would return to Mattoon in February 1969; Oakley went on vacation for the first 2 weeks of December, worked 3 or 4 days including New Year's Eve, went to the hospital on January 2, 1969, and returned to work March 18, 1969. The drivers left, in order of seniority, were Brandon, Jones, Gass, and Preston. The period from November through February in the past had always been a slack period at Mattoon. nonthreatening, and protected under Section 8(c) of the Act Such a con- tention could be said to apply to statements other than the threat to close down the Mattoon plant For example, Bowen testified that by entering into a union contract the men were "putting some restrictions on your- selves." More particularly he was referring to the fact that they would be limited to the guaranteed wage , that the operation of the guaranteed wage would cause them to lose "extra work" that he had allocated to the Mat- toon terminal instead of to Tuscola or the other terminals. Under the guarantee clause the extra work could be more cheaply done at the other terminals, economy of operation and good business would require that it not be done at Mattoon. Such explanatory remarks lose their 8(c) protec- tion when made together with or under the umbrella of threats of economic reprisal 26 Chicago is approximately 175 miles from Mattoon " King had become dispatcher in .'uly 1968 McConnell and Galbreath had transferred to Chicago 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The same period in 1968-1969 was no exception. The record contains no information that would per- mit a comparison of the business done during this period from year to year, including 1968. The record contains no evidence that any run during this period scheduled to leave from Mattoon did not do so. The record does not show for the period November 1968 through February 1969 that any business or run that had issued out of Mattoon dur- ing that period in previous years was transferred by Respondent to be hauled from some other terminal. The record does not show that any work during this period was performed by an independent trucker except one instance in February 1969 discussed hereafter. The record shows that business fell off" and that the drivers at the Mattoon terminal did get some work but did not get all the "work they wanted." There is no significant evidence in the record that shows that the lack of work was at- tributable to other reasons than lack of work. Jones testified, for example, that in previous years during the seasonal slack, drivers of lower seniority than his were laid off "up to two months some of them maybe two or three weeks." For the period from November 17 through December 1, 1968, there is no record of the activi- ties of Brandon and Oakley. Barr was stationed in Decatur. Preston was given no runs at all. Gass, who was senior to Preston,, received 16 hours for the week ending November 30. For that week Preston applied for and received workmen's com- pensation. The record contains no evidence of the activity of Jones except for the statement that his work "fell off considerably." For the month of December 1968, the record contains no information with regard to the activities of Brandon. Oakley was on vacation the first 2 weeks and had 3 or 4 days' work the remainder of the month including New Year's Eve. Oakley was senior to all the remaining drivers. There is no com- plaint that he was deprived of any work. Gass received 11-1/2 hours' work during the week end- ing December 7; 32-1/2 hours the week ending December 14; 8 hours' work the week ending December 21; and 11 hours' work the week ending December 28. Some time late in December Gass applied for a job with Yellow Transit Company and went to work for them on January 3, 1969. In his application to that company he stated that Respon- dent had "laid him off for lack of work." He testified that the job at Yellow was better than the one at Respondent because the hours were shorter, the pay more regular and there was no problem 28 See In 20 showing the loss of the butane movement for this season 48 It is reasonable to conclude that here Jones is referring to the butane movements in January 1969 caused by the breakdown of production at the Marathon plant See fn 20. 30 Preston testified that he hauled beer and brought in a new trailer 31 This statement was made despite the fact that in February Respondent ceased hauling beer For many years Respondent had hauled beer from the Mattoon terminal to Belleville, Illinois, "always one load a week sometimes two " In February 1969 Respondent communicated with has customer and about paychecks. Also he stated without amplifica- tion that he "was not getting along so good" at Respondent's. As to Jones, the record contains no evidence as to work performed by him during December. As with November, he testified that his work "fell off considerably." There is no evidence in the record that any of Respondent's work in December was farmed out to independent truck operators. Jones testified that in December one of the blimps was removed from Mattoon. The state- ment is too vague to be credited. Jones, without specifying the particular time, admitted that he drove propane in the winter of '68/69 and that dur- ing the months of December 1968 and January and February 1969 he pulled about 2 dozen loads con- tained in blimps.29 For the month of January 1969 the record con- tains no information with regard to the work of Brandon. Oakley was in the hospital. As stated above Jones was driving blimps (product unidentified) with an unspecified frequency. Jones testified, "At the time Oakley was in the hospital, that left Brandon and I, Barr hadn't transferred back from Decatur yet, and there was some weeks that I'd probably work 80, 90 hours." It is signifi- cant that during this month two drivers with lesser seniority than Jones were also driving. For the week ending January 11, Preston drove 12-3/4 hours; the week ending January 18, 15-3/4 hours; and for the week ending January 25, 23-1/2 hours.30 Gass, who was about to start work for Yellow Transit, drove one load on January 4. For the month of February 1969 the record con- tains the testimony of Jones that the work picked up.31 As in January, Oakley was in the hospital. The work was left to Brandon and Jones. The latter's statement that he worked as much as "80, 90 hours a week" included February. Preston, the lowest man on the seniority list, drove once on February 1, 1969. The only other driver that month, according to the record, was Barr. How much he drove or when, the record does not show. During February, Respondent used an independent trucker on one occasion to haul a load under the following circum- stances: R. R. Donnelly & Sons, publishers, was a client of Respondent in Mt. Morris, Illinois. Respondent picked up a load. The truck to be used by Respondent could not be used because of scored pistons. Respondent had no other truck available in Mattoon. Donnelly required immediate delivery. Respondent used the services of Tutt, its former dispatcher, to move the load.32 The record contains no evidence to show that this movement by the in- advised him that "under the guarantee [of the union contract] we had to pay the driver more than we were getting from him for hauling it " For that reason, he would no longer haul it Jones hauled the last three loads of beer 32 Jones testified that Respondent used no independent trucker in January or February 1969 Barr filed a grievance in connection with this item and stated in it that Respondent had "no equipment available to pull this load " BOWEN TRANSPORTS, INC. 591 dependent trucker was caused by other than economic necessity and the emergency situation. Under these circumstances it is found that the reduction in work that occurred at the Mattoon ter- minal from November 17, 1968, through February 1969, resulted from economic causes and the con- sequent nonemployment of the drivers was not violative of the Act. 2. Transfer in March 1969 from Mattoon to Tuscola of the movement of anhydrous ammonia U.S.I. is an affiliate of National Distillers. At its Tuscola plant it manufactures liquified petroleum gases, denatured alcohols and solvents, synthetic plastics, pure alcohols, ether, commercial acids, and fertilizer solutions (anhydrous ammonia). Respondent, using a terminal located on U.S.I. premises, has been transporting U.S.I. products for the past 16 years. Until 1969,'the transportation of anhydrous am- monia was given special treatment by Respondent. Trucks with pressurized tanks capable of withstand- ing a 265-pound pressure test were used. In the trade these are known as "blimps." In the season 1968-1969 Respondent owned and operated three blimps33 that were stationed at Mattoon. Though the anhydrous was manufactured at Tuscola, Respondent, with the consent of U.S.I., had always scheduled the movement out of Mattoon using Mattoon drivers.34 The transportation of anhydrous depends on the spring planting season of the Illinois farmers which occurs as soon as the winter weather breaks.35 Usually, planting starts in early March and con- tinues for a 6-week period through April. During the season the drivers were required to work almost around the clock to supply the peak need of the farmers for the product. A complicating factor in the delivery schedule was that a rainstorm (preventing the use of the anhydrous by the farmer) would cause an immediate cessation of deliveries. Bowen admitted that until the spring of 1969 an- hydrous had always moved out of Mattoon with Mattoon drivers. In March 1969 Bowen transferred the blimps to Tuscola.' From that time forward no anhydrous moved from Mattoon. Respondent con- tends that the transfer to Tuscola occurred in response to and because U.S.I. complained about difficulties that resulted from the system of schedul- ing via Mattoon; that to satisfy these complaints he made the transfer. The record shows that the real reason for the transfer of the anhydrous movement to Tuscola was in retaliation against the Mattoon drivers for stating they would file, and actually fil- ing, grievances requesting payment of the guaran- teed wage under the contract. March 7, 1969, was the last time Jones drove a blimp out of Mattoon with anhydrous. The same day, immediately before driving off, in the presence of King and Barr, Jones had a discussion with Bowen about his paycheck for the previous week. In that week Jones had not driven the full guaran- tee period, but under the guarantee he was entitled to payment of $184.32: "He received $95.96. His complaint was brought to Bowen's attention and the discussion followed. Bowen told Jones that he was not going to pay the difference, that Jones would have to file a grievance to get it. Bowen further said that if he did file a grievance, Respon- dent would start laying off drivers, move the equip- ment from Mattoon, and even cut off runs. Jones did not argue with Bowen but left to make the above-mentioned run. King and Barr remained . Barr was waiting for his wife to pick him up, but the conversation con- tinued . In response to King's question , Barr said he had no intention of filing a grievance because he did not have the guarantee "coming," but that he believed Jones would. King responded that Jones had always been a- troublemaker even under Paul- lin; that if he did file the grievance Bowen "would pull the blimps out of Mattoon to Tuscola and there would be no anhydrous for Mattoon drivers to pull." On March 10, 1969, Jones filed his grievance. It is not clear from the record whether Respondent shifted the movement of anhydrous to Tuscola after March 7 or after March 10. But the record is clear that from the day of the Bowen/King threats to the time of the hearing no anhydrous moved from Mat- toon. All the anhydrous moved out of the Tuscola terminal . In connection with this shift , the number of drivers at Tuscola increased. When the season closed the blimps remained in Tuscola. Bowen and King both denied that they made the above statements. I credit Jones and Barr. Respondent contends that Bowen transferred King and the blimps to Tuscola as a result of com- plaints from U.S.I.; that this transfer was solely for economic reasons and therefore not violative of the Act. The record does not support these conten- tions. U.S.I. had been complaining about the Mat- toon terminal for many years before the 1969 season. The 1969 season started out with the use of 3' As already stated blimps were also used for the transportation of bu- tane and propane "On occasions, in an emergency, Tuscola drivers would drive when Mattoon drivers could not handle all the traffic " The traffic manager for U S I testified During the spring fertilizer season, which is rather difficult for any- one to understand that 's not intimately acquainted with a farmer and their panic of application of specifically anhydrous ammonia in the very short time they have between the preparation of the ground and the planting of the seed , yes, we had experienced some problems with long-distance scheduling , and with the long-distance movement of manpower and equipment This is perhaps magnified by the fact that any producer during this period or distributor has considerably more orders during a 24-hour period than physically possibly you can deliver, and as additional orders come in, you change your priority all day long, and so you are wanting to change your schedule 38 As shown later, at this time King was also sent to Tuscola for a period of 5 to 6 weeks 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mattoon scheduling.37 The record shows no specific incident that would cause Bowen to cut off the practice of the past 15 years nor does it show any specific complaint by U.S .I. at that particular time that sparked the transfer as The record clearly shows that Bowen, prior to the March encounter with Jones , had no intention of transferring the movement of anhydrous from Mattoon to Tuscola. Bowen prior to March 1969 kept the blimps at Mattoon though he knew that for several years the Union had been urging Respon- dent to station the blimps permanently at Tuscola. His intent to keep the blimps at Mattoon was ac- centuated by the fact that in August 1968 Bowen was advised by U.S .I. there would be no future an- hydrous shipments. At that time , Bowen started planning to sell or transfer the blimps . About 2 or 3 months later U.S.I. told him that their plans were changed and the delivery of anhydrous would con- tinue and asked Bowen to go through another season . Bowen agreed and started the season out of Mattoon . It was not until the knowledge of the fil- ing of the grievances that he suddenly , and without apparent reason , changed the system to ship out of Tuscola. There may be some validity to the asser- tion that the change was economically sound or gave rise to a more efficient operation. But there is insufficient evidence in the record to show that these factors motivated the change . Rather it is more reasonably concluded that Bowen made the change to avoid the filing of grievances by the drivers for payment of guaranteed wages as in- dicated above. It is well established that the filing of grievances under a union contract is protected by the Act. Respondent's threat and action interfered with, restrained , and coerced employees in the exercise of their rights as guaranteed by Section 7 to engage in collective-bargaining and self-organizational ac- tivities. Accordingly, it is found that the threats and actions are violations of Section 8(a)(1) of the Act. 3. Events at Mattoon from March 1969 to date of hearing For the month of March 1969 the record shows little concerning the hauling activities out of Mat- 'r Jones hauled some loads of anhydrous scheduled from Mattoon the latter part of February through March 7, 1969. 3' Respondent put in evidence a letter from U S I praising Respondent's 1969 delivery performance The record shows this letter was solicited by Respondent after the filing of the charge in this action The letter refers to the transfer to Tuscola and attributes improved performance to the transfer from Mattoon However , neither the letter nor the U.S I representative through whom it was introduced gave any specific instance preceding March 7 that would give rise to the transfer `0 On March 11 , Preston took over the management of a service station in Mattoon It is found that Respondent's efforts to communicate with, or to obtain resignation letters from , Preston and Gass are not improper. '0 No finding is made as to the amount of work each would have per- formed 41 King on cross-examination admitted that he spoke to Oakley and Bran- toon. All the drivers agree that "things was awful slow" and nothing was moving . Oakley returned on March 18 and was put to work hauling road oil and paper. He hauled no anhydrous ammonia nor did he drive any blimps. The record contains no infor- mation as to Brandon 's activities . As already stated Jones, on March 7, drove the last load of anhydrous ammonia assigned to a Mattoon driver . Also this was the last time he drove for Respondent. Barr drove three times in the first week of March. Between March 13 and 1539 Jones and Barr received layoff notices based on "lack of work." It is found that these layoffs are illegally discriminato- ry. The record shows that at the time Jones and Barr were laid off, anhydrous was moving out of Tuscola. It is reasonable to conclude that had it not been for Respondent's illegal transfer of this move- ment to Tuscola, then either Jones or Barr or both would have been assigned this work in Mattoon.40 Under these circumstances, the layoff of Jones and Barr is a direct consequence of Respondent 's action in violation of Section 8(a)(1) and is therefore il- legally discriminatory in violation of Section 8(a)(3). When Oakley returned to work on March 18 he held the conversation with King , referred to in sec- tion III C, above, in which King required him to get the doctor's medical releases. This conversation continued with King asking Oakley if he had heard of the layoff of Jones and Barr. Oakley stated he was aware of it. King then continued "if you and Brandon demand your union scale and your guaranteed time ... Mr. Bowen is just going to close this up and take over to Tuscola and you'll get a letter you're laid off." Brandon testified that about a month after Jones was laid off he held a conversation with King . The latter told Brandon that if any more grievances are filed, those drivers below the grievant in seniority would be laid off, and further, the filing of grievances would cause Respondent to close Mattoon and move to Tuscola.41 These conversations between King and Oakley and King and Brandon are violative of Sec- tion 8(a)(1) of the Act. The road oil season was about ready to com- mence. About April 1 a meeting occurred between don about the filing of grievances and continued Q. What did you tell him9 A. I told him that if there wasn 't enough work to keep the two of them going over the guarantee, that we'd have to lay one off Mr Oakley was off sick from an operation for the first part of the year, for probably two months or somethinglike that. Q. Did you recommend that they not file gnevices9 A. I told them it would probably be better if they didn't. Q In fact, didn't you tell them that if they filed grievances there wouldn't be any work to do, is that correct? A. No, I did not. Q What did you tell them the filing of grievances would do, what effect would it have) A. Well, it would lay the gguys off down to what just had to be there for what runs there was BOWEN TRANSPORTS, INC. 593 Bowen and his son and Oakley, Brandon, and Barr.42 Bowen testified that he called the meeting because the drivers had been pestering his customer to find out when the road oil season would start. He stated that the meeting was brief and the following occurred: He told the drivers that under arrangements with his customer the road oil season would start soon;43 they were not to bother his customer; and that he would call them for work in the order of their seniority; Oakley asked him what was going to be done after the road oil season, to which he responded that the salesmen were out trying to work up some business. Oakley, Brandon, and Barr amplified Bowen's testimony. In addition to the above, they stated that he told them he could not afford to pay the guaran- teed wage , or the loading and unloading time as provided in the union contract; that if the drivers wanted to run the loads the difference would be out of their own pockets; that he had spoken to the Union about it and the Union had said they would give him no trouble ;44 that he had promised the customer he would haul the road oil this year, but if it became too costly he would have to give it up. The General Counsel alleges that the statements of Bowen at the April 1 meeting constitute an 8(a)(1) violation .45 It is found that this allegation is unsub- stantiated by the evidence. As found herein Bowen's statements relate to the economic position of Respondent with regard to the coming road oil season.46 In that framework they are not coercive and do not exceed the per- missible limits of Section 8(c) of the Act. From this meeting forward until the time of the hearing, Oakley, Brandon, and Barr were the three drivers used by Respondent. Barr, after his layoff notice, was called back to work on April 21, the day Jones was discharged.47 The record contains no evidence as to the circumstances under which the three drivers hauled their loads; nor does it contain any evidence as to the manner in which they were paid. The record does show that the number of drivers employed at Mattoon for this period was less than for an equivalent time the previous year. The record shows that the reduction is due to lack of work after the termination of the anhydrous season. There is no substantial evidence to the contrary. Nor is there any substantial evidence in the record to show that Respondent's tractors, other than the blimps, were transferred from Mattoon during the period subsequent to March 1969.46 Under these circumstances, it is found, except as otherwise found herein, that the reduction in work that oc- curred at the Mattoon terminal from March 1969 through the time of the hearing resulted from economic causes, and the consequent nonemploy- ment of drivers was not violative of the Act. The record does show that independent owners were used by Respondent during the 1969 road oil season to haul road oil.49 Bowen testified that Respondent used independent owners when his own tractors were not available50 to meet the customer's demands for urgent delivery. There is no substantial evidence to the contrary. Respon- dent points out that this practice had been in effect during the 1968 road oil season. As stated above, there is no substantial evidence that Respondent moved his tractors from Mattoon in this period. Ac- cordingly, on the basis of the foregoing and the record as a whole, it is found that there is no sub- stantial showing that the use by Respondent of in- dependent owners during the 1969 road oil season was proscribed by the Act. H. The Saga of Harold E. Jones As stated above, Jones was the key man in the organization of the drivers at Mattoon and the chief speaker at the meeting with Bowen on November 17, 1968. He was number three in seniority among the drivers after Oakley and Brandon. He was hired by Respondent in 1961 and had driven consistently since without layoff. Bowen considered him a troublemaker, complainer, and an undesirable em- ployee . King and Jones both admitted they did not get along well or like each other, even though for a while both drove a truck together. Jones was diabetic . From the time he was hired he wore a medal on a chain around his neck advis- ing to that effect . He treated himself daily by injec- tion. Paullin, King, and the other drivers knew that he was a diabetic prior to June 1968 when Bowen took back the active management of Respondent. In September 1966 Jones had a heart attack and '= The layoff of Jones and Barr was still effective . Jones, senior driver to Barr, was not asked to attend. Barr was notified by telephone to be present As stipulated by the parties the first road oil run was made on May 2, 1969. " Oakley testified that after the reference to the Union, Bowen said "If we didn't want to haul it, why, he'd get a few brokers." Upon specific questioning as to this statement, Brandon answered that "he heard that said" but does not recall it being said at the April 1 meeting Barr did not corroborate Oakley. Bowen denied making the statement. Under these cir- cumstances, it is found that Bowen did not make the statement about "few brokers" at the April 1 meeting. " The allegation and General Counsel 's argument stem from a somewhat different statement of facts than found above The potential breach of the union contract is not in issue See the next section of this Decision for a discussion of this subject. "The testimony of the drivers is vague as to the number of tractors maintained at Mattoon and their movement to and from Mattoon for any particular period. Jones testified that Mattoon was used as a repair facility for all the Bowen trucks, he couldn't tell which trucks were being moved in and out but one could tell there "wasn 't near as many", the number of trac- tors was reduced to three The period Jones referred to was from December 1968 through March 1969. The record contains no evidence concerning the number of tractors maintained at Mattoon after March 1969 1 The complaint raises no 8(a)( 5) issue Jones testified that he un- derstood that under the union contract the employer had the right to lay off employees rather than pay the guaranteed wage S0 Oakley testified that the independent owners used their own tractors to pull Bowen trailers. 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was hospitalized. Jones' personnel file with Respon- dent contained a copy of a hospital report dated October 8, 1966, showing that he had been discharged from the hospital on October 4, 1966. This report showed the diabetic condition. In addi- tion to the insulin, Jones took medicine regularly to alleviate the heart condition. Jones continued to drive for Respondent after Bowen took over. No question was raised about his health or its effect upon his driving. In March 1969, King, referring to the existent slack period, indicated to Bowen a desire to drive again . The record is not clear on precisely what fol- lowed but it is assumed that King expected to be the driver with top seniority, as he had been before becoming the dispatcher. On March 19, 1969, Jones filed a grievance contesting King's top seniority. This caused King to change his mind about becoming a driver. King resented Jones' ac- tion, considered it "dirty pool," and decided to get back at Jones. Shortly afterward he spoke to Bowen, advised him of Jones' health record, and recommended to Bowen that Jones be required to take a physical examination.51 He told Bowen that Jones "had been a troublemaker in a lot of dif- ferent cases, and that we could get rid of him by him having a physical because he couldn't pass an I.C.C. physical."" As stated above Oakley had recently been released from the hospital and returned to work on March 18. Bowen commented on this fact and told King that under the circum- stances, "we'd better have all the men examined. "53 Letters were written to Oakley, Brandon, Jones, and Barr advising each to take physical examina- tions at the Respondent 's expense . Jones' letter was dated April 2, 1969. Without objection, Jones took his physical on April 9, 1969. About April 1254 Jones spoke to Bowen on the telephone about returning to work. He was told that the Respondent was waiting for the results of the physical before any further determination could be made; that Respondent would notify him by letter. On April 21, 1969,55 Respondent discharged Jones by letter stating as follows: We have received the medical examination re- port of Dr. Hardinger. It is his opinion that you are not qualified to drive due to various ail- ments . A copy of the doctor's report is en- closed. Accordingly you are discharged effec- tive immediately. Respondent advised the Illinois secretary of state of the medical report on Jones. On June 25, 1969, the office of the secretary of state of Illinois notified Jones that it had received a report of his 61 Bowen testified he was unaware of Jones' disabilities Jones testified that he did not know if Bowen knew of Jones' illnesses before King told him sx Respondent was an intrastate carrier and not subject to I C C regula- tions The union contract provided that the employer could require the drivers to take physical exam nations. When asked, the Union stated it had no objection to the procedure In the meantime Bowen had held the meeting with Oakley, Brandon, physical disability and advised him that he was not entitled to his operator's license . Under Illinois law the license became invalid 10 days after notice. On June 27, 1969, Jones took another medical ex- amination with another doctor who reported him capable to drive. Jones took the report to the secre- tary of state. The latter reinstated Jones' license first, by issuing a letter dated June 27, 1969, rescinding the revocation notice of June 25 and finally by reinstating the license on July 23, 1969, without restriction. The record shows that between the dates of June 25 and July 23, 1969, Respondent communicated twice with the officials in the office of the secretary of state with a view towards getting Jones' license revoked. Respondent informed the secretary, among other things, that in its opinion Jones was not fit to, and should not be allowed to, carry a chauffeur's license.S6 Respondent contends that it discharged Jones because of his physical disability. The General Counsel contends that the whole course of action from King's conversation with Bowen through the discharge based on the cited letter was a pretext, and the discharge was discriminatory in violation of Section 8(a)(3) and (1). The record supports the General Counsel. To use the vernacular, King was "sore" at Jones for filing the seniority grievance and wanted to get back at him. He cooked up the physical examina- tion scheme. Since the scheme presented what ap- peared like a valid method of getting rid of Jones, Bowen bought it. Certainly, the reasons advanced by Bowen in arranging for the physical examina- tions do not stand up under analysis. Bowen gave two reasons why he started the examinations in March 1969: (a) "I always had the drivers ex- amined periodically, and when we had the big truckline, that was an annual thing" and (b) Oakley had been in the hospital for a serious operation. As to (a): Bowen took over active operation of the business in June to July 1968. For the period of about 8-10 years prior some of the drivers had taken physical examinations. The record does not contain evidence to show that such examinations were the regular policy of the Company, nor that all the men then employed at Mattoon had been through such examinations . After Bowen took over again, he waited 10 months before he decided to establish and commence the program of physical examinations. No reason is given for the delay. The timing in March, however, was significant. The union contract had been executed effective as of February 1. The guaranteed wage (an item that Bowen was set against) was now effective chiefly and Barr to discuss the coming road oil season referred to in the preceding section Bowen gives no adequate reason why Jones was not invited to this meeting even though he was Barr 's senior It is concluded that Bowen had already resolved that Jones would be discharged On April 16, 1969, Jones took a job with another company In talking to one of the state officials Peter Bowen referred to Jones in a derogatory manner BOWEN TRANSPORTS, INC. because of Jones' efforts. Jones had recently filed grievances requesting adjustments on his wages to comply with the guarantee wage clause of that con- tract. Respondent had illegally laid off Jones by letter dated March 13, -1969, because of these grievances. There is little doubt that with these recent events fresh in mind Bowen was easily con- vinced that the King suggestion could be a likely method of getting rid of this union gadfly. Further, Bowen testified with regard to physical examina- tions, that "it has always been my practice, and we are presently doing that at Tuscola." When questioned more closely Bowen became vague. He stated that there was a rotation process at Tuscola, "They apparently had some kind of a plan that comes up every so often. I haven't examined the plan or anything like that, . . ." Such actions do not accord with the concept that Bowen was proceed- ing as a matter of policy to establish an active regu- lar system of physical examination for the drivers. As to (b): Oakley went into the hospital about January 2, 1969, for what Bowen called a "very serious operation" to remove a "cancerous malignancy." He was released later in January but did not report back to work until March 18 . Before accepting him, King required Oakley to get several medical certifications that he was fit for work. Under these circumstances, reference to Oakley as a basis for a physical examination program was entirely gratuitous. Further, it would be considered reasonable that if Bowen were really imbued with the idea of regular physical examinations, the return of Oakley would have been the necessary spark to set the wheels in motion. Obviously it was not, but the desire to get rid of Jones was. There is no doubt that Bowen, moved by public spirit, is desirous of maintaining a physically fit group of drivers to reduce the possibilities of road accidents. However, it is clear from the record in this case that another motivation, and certainly the more pressing one, was to use this scheme to eliminate Jones because of his union activity and because of his persistence in filing grievances under the union contract. With this intent, Bowen entered into the program of having the men take physical examinations with the expectation that Jones would fail his and thus be subject to discharge. Such motivation and action are violative of Section 8(a)(1) and (3) of the Act .57 IV. THE EFFECT UPON COMMERCE OF RESPONDENT'S UNFAIR LABOR PRACTICES The activities of Respondent set forth in section III, above, occurring in connection with Respon- dent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several ' See Southern Tours, Inc., 167 NLRB 363 In view of this discussion and finding, it is considered unnecessary to discuss Bowen 's subsequent actrvi- 595 States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, it is recom- mended that it cease and desist therefrom and take such affirmative action as appears necessary and appropriate to effectuate the policies of the Act. Having found that Respondent's violations in- clude discriminatory layoffs and discharges, and that it is considered that there exists a danger of commission of other unfair labor practices, it is recommended that Respondent be ordered to cease and desist from infringing in any other manner upon rights guaranteed by Section 7 of the Act. Having found that Respondent discriminatorily laid off Barr on March 14, 1968, and rehired him on April 21, 1968, it will be recommended that Barr be made whole for any loss of earnings from the date of the wrongful layoff until the date of rehire. Having found that Respondent discriminatorily laid off Jones on March 13, 1968, and then on April 21 discriminatorily discharged him, it will be recommended that Respondent offer Jones a full and immediate reinstatement to his former or sub- stantially equivalent position of employment without prejudice to his seniority and other privileges and that Jones be made whole for any loss of pay he may have suffered as a result of Respondent's unlawful conduct. Having found that Respondent discriminatorily transferred the movement of anhydrous ammonia from Mattoon to Tuscola, it will be recommended that Respondent restore the operation at Mattoon to the status quo ante by returning the movement of anhydrous ammonia to the Mattoon terminal.' The record does not show the extent of the movement of anhydrous at Tuscola. Thus, there is no way at this time to determine the loss of work that was caused at Mattoon by reason of the unlawful transfer. If it is shown in the compliance stage of this proceeding that a driver at Mattoon other than Barr and Jones lost work by reason of such illegal transfer, such driver shall be made whole for any loss of pay he may have suffered as a result of Respondent's unlawful conduct. Backpay for Barr, Jones, and such other drivers shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest added thereto in the manner set forth in Isis Plumb- ing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact ties before the Illinois secretary of state sa See Manley Transfer Company, Inc , 164 NLRB 174,175 427-835 0 - 74 - 39 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and upon the entire record herein, I make the fol- lowing: CONCLUSIONS OF LAW 1. Bowen Transports, Inc., is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Local #26, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with , restraining, and coercing its employees in the exercise of the rights guaran- teed by Section 7 of the Act, as found above, Respondent has engaged in unfair practices within the meaning of Section 8(a)(1) of the Act. 4. By discriminating in regard to the hire and tenure of employment of employees Barr, Jones, and other drivers, thereby discouraging member- ship in or activities on behalf of a labor organiza- tion, Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(3) of the Act. 5. The aforesaid conduct constitutes unfair labor practices affecting commerce within the meaning of the Act. 6. Other than as found above, Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. RECOMMENDED ORDER Bowen Transports, Inc., Mattoon, Illinois, its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening to close its Mattoon terminal, or to transfer the movement of traffic from the Mat- toon terminal to some other terminal if the em- ployees choose to be represented by a union or file grievances under a union contract. (b) Transferring its trucking equipment from its Mattoon terminal to another terminal if the em- ployees choose to be represented by a union or file grievances under a union contract. (c) Threatening its employees with economic reprisals, curtailment of work, or more onerous working conditions because of their union sym- pathies, activities , or membership, or the filing of grievances under the union contract. (d) Discouraging membership in Teamsters Local #26, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by dis- criminating in regard to the hire and tenure of em- ployees or any term or condition of their employ- ment. (e) Discharging, laying off, or refusing or failing to reinstate with full backpay any employees by reason of their membership in or assistance or sup- port to said Teamsters Local #26, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, or because the employees filed grievances under the union contract , or dis- criminating in any other manner in regard to their hire and tenure of employment, except to the ex- tent permitted by the proviso in Section 8(a)(3) of the Act, as modified by the Labor-Management Re- porting and Disclosure Act of 1959. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization , to form, join, maintain membership in, assist , or support said Teamsters Local #26, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Hel- pers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection , including the filing of grievances, or to refrain from any and all such activities, except to the extent that such right may be affected by agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Terminate the arrangement for movement of anhydrous ammonia from its Tuscola terminal and return the operation to the Mattoon terminal for haulage from that terminal. (b) Offer to Harold E. Jones immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered as a result of the discrimination against him, in the manner set forth in "The Remedy " section of this Decision. (c) Make Charles Barr whole for any loss of pay he may have suffered as a result of the discrimina- tion against him in the manner set forth in "The Remedy" section of this Decision. (d) Make any Mattoon driver, other than Barr and Jones, whole for any loss of pay he may be able to show that he suffered by reason of the transfer of the movement of anhydrous ammonia from Mat- toon to Tuscola during the 1969 anhydrous season. (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Decision and Recommended Order. (f) Post at its plant at Mattoon , Illinois, copies of BOWEN TRANSPORTS, INC. the attached notice marked "Appendix."" Copies of said notice, on forms provided by. the Regional Director for Region 2, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision and Recommended Order, what steps have been taken to comply therewith.8° IT IS FURTHER ORDERED that the complaint be dismissed as to the allegations not herein found to be unfair labor practices. '° In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board " shall be changed to read " Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 00 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in wasting, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which both sides had the opportu- nity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice and to keep our word about what we say in this notice. WE WILL NOT discourage our employees from engaging in activity having for its purpose the submission, presentation, and processing of grievances pursuant to the terms of a collec- tive-bargaining agreement, by discharging, refusing to reinstate, or in any other manner discriminating against any of our employees in regard to their hire or tenure of employment, or any term or condition of employment. WE WILL offer Harold E. Jones immediate and full reinstatement to his former or substan- tially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for 597 any loss of pay he may have suffered by reason of the discrimination against him. WE WILL take immediate steps to pay Charles Barr all pay which he lost because we laid him off on April 14, 1968, plus interest. WE WILL NOT threaten to close our Mattoon terminal or to transfer the movement of traffic from the Mattoon terminal to some other ter- minal if our employees choose to be represented by a union or file grievances. WE WILL restore to the Mattoon terminal the movement of anhydrous ammonia heretofore transferred to the Tuscola terminal, and will pay any Mattoon driver, in addition to Barr and Jones, all pay he may have lost by reason of such transfer. WE WILL NOT threaten our employees with reprisal of any kind because of their union sympathies, activities, or membership, or the filing of grievances. WE WILL NOT discourage membership in Teamsters Local #26, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization by discriminatori- ly laying off and refusing to reinstate any of our employees or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of em- ployment. WE WILL NOT in any other manner interfere with, restrain, or coerce any employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Teamsters Local #26, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in other concerted ac- tivities for the purpose of collective bargaining or other mutual aid and protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. All employees are free to become, remain, or refrain from becoming or remaining, members of any labor organization. BOWEN TRANSPORTS, INC. (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This notice must remain posted for 60 consecu- pliance with its provisions may be directed to the tive days from the date of posting and must not be Board's Office, 1040 Boatmen's Bank Building, 314 altered, defaced, or covered by any other material. North Broadway, St. Louis, Missouri 63102, Any questions concerning this notice or com- Telephone 314-622-4167.