Jack Walker Trucking Service, Inc.

JACK WALKER TRUCKING SERVICE Jack Walker Trucking Service, Inc. and Edmund Gosser. Case 9-CA-7071 March 20, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On November 29, 1972, Administrative Law Judge William J. Brown issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that Respondent, Jack Walker Trucking Service, Inc., Lexington, Kentucky, its officers, agents, successors, and as- signs, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 2(a): "(a) Offer employees Edmund Gosser, Ralph Gilbert Thompson, Wt;`,am White, James Tomey, Glen Evans, Dexter Wade, and Farris Brandenburg immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges and make them whole for loss of earnings in the manner set forth in the section above entitled "The Remedy." 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings 541 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or otherwise discrimi- nate against employees in reprisal for their participation in concerted activities for the purpose of advancing their mutual aid or protec- tion, nor will we in any manner interfere with, restrain, or coerce them in the exercise of their rights under the National Labor Relations Act, as amended. WE WILL offer our employees whom we discharged on May 7, 1972, immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs and WE WILL make them whole for loss of earnings resulting from our act in discharging them on that date. All our employees have the right to engage in concerted activities for the purpose of mutual aid or protection. JACK WALKER TRUCKING SERVICE, INC. (Employer) Dated By (Representative) (Title) We will notify immediately the above-named indi- viduals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Federal Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686. DECISION WILLIAM J. BROWN, Administrative Law Judge. This proceeding under Section 10(b) of the National Labor 202 NLRB No. 81 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Act, as amended, came on to be heard at Lexington, Kentucky, on October 10, 1972.1 The original charge of unfair labor practices was filed May 25 by the above-indicated Charging Party and the complaint herein was issued by the General Counsel of the National Labor Relations Board acting through the Board's Regional Director for Region 9, on July 18. It alleged, and the duly filed answer of the above-captioned Respondent hereinaf - ter sometimes "the Company," denied, the commission of unfair labor practices defined within the scope of the Section 8(a)(1) of the Act. At the hearing, the parties appeared and participated as noted above with full opportunity to present evidence and argument on the issues. Subsequent to the close of the hearing, written briefs were received from the General Counsel and the Company and have been fully considered On the entire record herein and on the basis of my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF) THE EMPLOYER The pleadings and evidence establish that the Company, a corporation organized and existing under and by virtue of the laws of the Commonwealth of Kentucky, is engaged in business as a common carrier by truck of beer and other products from Lexington, Kentucky, to various destina- tions and, in the course of such business received, during the 12-month period preceding issuance of the complaint herein, gross revenues in excess of $300,000 of which more than $50,000 was received for transportation of beer and malt products directly from points in one State to points in another State. I find, as the Company concedes, that it is an employer engaged in commerce within the purview of Section 2(6) and (7) of the Act. II. THE UNFAIR LABOR PRACTICES For a period of several months prior to May 7 the Company's drivers, seven in number,2 had been discussing among themselves certain areas in which they were dissatisfied with working conditions. In particular they desired to convert their basis of pay from a flat rate dependent on origin and destination to a mileage basis at 10 cents per mile and, apparently of equal if not greater significance, a group health insurance plan under which the employees would pay the required premiums, the Company merely furnishing the requisite group status. Their aspirations also included a week's paid vacation. On Sunday, May 7, seven company drivers3 met at Gosser's home, named Gosser as their spokesman and proceeded to the company terminal to press their requests before Company President Jack Walker. Insofar as insurance was concerned, the drivers' plea had been previously presented to Walker who had said that he would look into the matter. Gosser's testimony is that on hearing the employee demands Walker protested that they would I Dates hereinafter, unless otherwise noted , relate to the calendar year 1972 2 The evidence is unclear as to whether or not Walker's son -in-law, Odell Mitchell , is a regular driver or a casual one If a regular operator, the involve such a cost increase as would make the Milwaukee run cost $90, a figure which he could not afford, at least until he received ICC approval of a rate increase. According to Gosser's account, Walker cursed and ranted, called someone, apparently a shipper, told him to get another truck, and fired all the drivers. The testimony of driver Glen Evans essentially corrobo- rates that of Gosser. The testimony of driver Brandenburg is to the effect that on hearing the drivers' demands as voiced by Gosser, Walker first merely said that he was unable to meet them but then walked out, said he would sell out his business, and eventually told the employees that they all were fired and should take their belongings from the terminal premises. Walker's testimony is that, on hearing the employees' demands from Gosser, he told Gosser that he could not afford to meet them unless he received a rate increase from the Interstate Commerce Commission. He further testified that employee Toomey said they would strike unless an agreement was reached and that no one else would drive as they might not get back. Toomey denied threatening that replacements might not get back. I credit his denial and I credit his testimony that none of the drivers during the course of the Sunday confrontation stated that they were quitting their employment. The evidence also indicates that Gosser's signed pretrial statement concedes that he told the drivers to clear out their trucks. I credit the accounts of Gosser and Evans and find that, on the occasion in question, Walker became enraged on hearing the demands of the employees and discharged them. It is clear that the employees' participation in concerted activity looking to improvement of their condi- tions of employment formed the basis for Walker's action in discharging the employees, and I find and conclude that the words and conduct of Walker on this occasion constituted an unfair labor practice within the purview of Section 8(a)(1) of the Act. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section II, above, and there found to constitute unfair labor practices, occurring in connection with the business operations of the Company, as set forth in section I, above, have a close, substantial, and intimate relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing such commerce and the free flow thereof. IV THE REMEDY In view of the findings above set forth to the effect that the Company has engaged in unfair labor practices affecting commerce it will be recommended that it be required to cease and desist therefrom and, in view of the finding of unlawful discharge , from any unfair labor practices (N L.R.B. v. Entwistle Mfg., Co., 120 F.2d 532 number of drivers would be eight 3 The seven drivers are Evans, Gosser , White. Wade. Toomey. Brandenburg, and Thompson JACK WALKER TRUCKING SERVICE 543 (C.A. 4)), and take such affirmative action, including the offering of reinstatement to employees found to have been unlawfully discharged, with backpay computed in accord- ance with the remedial pnnciples of F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. The posting of an appropriate notice will be required. On the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the purview of Sections 2(6) and (7) of the Act. 2. By discharging employees Edmond Gosser, Ralph Gilbert Thompson, William White, James Toomey, Glen Evans, Dexter Wade, and Farris Brandenburg because of their participation in concerted activities for their mutual aid or protection respecting rates of pay and other terms and conditions of employment, the Company has engaged in unfair labor practices within the scope of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the purview of Section 2(6) and (7) of the Act. RECOMMENDED ORDER4 On the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, it is recommended that Respondent, Jack Walker Trucking Service, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from. (a) Discharging or in any way discriminating against employees in reprisal for their participation in concerted activities looking to their mutual aid or protection. (b) In any manner interfering with, restraining, or coercing employees in reprisal for their exercise of their rights under the Act. 2. Take the following affirmative action which appears necessary and appropriate to effectuate the policies of the Act: (a) Offer employees Edmund Gosser, Ralph Gilbert Thompson, William White, James Toomey, Glen Evans, Dexter Wade, and Farris Brandenburg immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges and make them whole for loss of earnings in the manner set forth in the section above entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents for examination and copying all payroll records, social security payment records, timecards, per- sonnel records and reports, and all other records necessary to analyze and give effect to the backpay requirements hereof. (c) Post at its Lexington office copies of the notice attached hereto and marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 9, shall, after being duly signed by Company President Jack Walker, be posted immediately upon receipt thereof and be maintained by the Company for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to ensure that said notices are not altered, defaced, or covered by other material. (d) Notify the Board's Regional Director for Region 9, in writing, within 20 days from receipt of this Decision, what steps have been taken by the Company to comply with the terms hereof. 4 In the event no exceptions are filed as provided by Sec 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 Sec 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 5 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "