Kirvan Truck Line, Inc.

KIRVAN TRUCK LINE, INC. 225 Kirvan Truck Line, Inc. and Local 346, General Drivers, Dairy - Employees, Warehousemen and Helpers and Inside Employees, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 18-CA-3523 November 13, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On May 25, 1973, Administrative Law Judge Allen Sinsheimer, Jr., issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions 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 Administrative Law Judge's Decision in light of the exceptions and brief and has decided to affirm the Administrative Law Judge's rulings, findings,' and conclusions 2 and to adopt his recommended Order. 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 and hereby orders that Kirvan Truck Line, Inc-, Interna- tional Falls, Minnesota, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. 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 are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 Fad 362 (C.A. 3). We have carefully examined the record and find no basis for reversing his findings. We note the Administrative Law Judge's error (apparently typographical) in stating in his Decision that Respondent's drivers signing of the union cards took place on April 10, 1973, rather than the correct date of April 10, 1972. 2 We agree with the Administrative Law Judge that Respondent's unlawful 8(a)(1) and (3) conduct herein was so serious and pervasive that a bargaining order is appropriate under the standards enunciated in N.LRB_ v. Gissel Packing Co., Inc, 395 U.S. 575 (1969), even in the absence of the complaint's specific 8(a)(5) allegation. Respondent not only threatened that it would "never" have the Union in its plant, it also sought to make this certain by unlawfully discharging three of the five employees who composed the bargaining unit. Such conduct effectively prevented the Union's enjoyment of majority status and, in effect, eliminated any chance of its having that status affirmed by the election process- Members Fanning and Penello, further agree with the Administrative Law Judge that, by failing and refusing to recognize and bargain with the Union as the exclusive representative of the employees in the appropriate unit, Respon- dent violated Sec. 8(a)(5) of the Act. Chairman Milleragrees thata bargaining order is appropriate herein as a part of the remedy, but in accordance with his separate views as expressed in United Packing Company of Iowa, Inc, 187 NLRB 878, and General Stencils, Inc., 195 NLRB 1109, he would predicate such order solely on Respondent's serious and extensive 8(a)(1) and (3) violations. DECISION STATEMENT OF THE CASE ALLEN SINSHEIMER, JR., Administrative Law Judge: The above proceeding was heard at International Falls, Minnesota, on July 18,1 November 16, and December 19, 1972. The complaint issued June 7, 1972,2 alleges violations of Section 8(a)(1), (3), and (5) of the Act.3 The issues involve alleged 8(a)(1) conduct, alleged discriminatory discharges of three employees, an alleged refusal to bargain, and also the supervisory status of one person. Upon the entire record, including my observation of the witnesses and after due consideration of the briefs of the General Counsel and the Respondent, I make the following: 4 Findings and Conclusions 1. THE BUSINESS OF THE RESPONDENT Respondent, a Minnesota corporation with its principal place of business at International Falls, Minnesota, is engaged in the business of hauling and transporting freight in interstate commerce . During the 12-month period ending December 31, 1971 , Respondent received more than $50,000 in revenue for hauling goods and supplies from the State of Minnesota to other States in the United States. I find that Respondent is engaged in commerce and a business affecting commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 346, General Drivers, Dairy Employees, Ware- housemen and Helpers and Inside Employees, affiliated i On July 18, a settlement agreement was taken which was subsequently set aside by the Regional Director on September 5. 1972, with the parties in accord that it had not been complied with. 2 An original charge was filed April 18, 1972, and an amended charge June 5, 1972. 3 Following the setting aside of the settlement agreement , the hearing was reset for hearing by me. The complaint was also amended during the hearing to correct certain typographical errors and in addition to correct the date of termination of David Peterson to April 16 and again amended to allege a subsequent termination of David Peterson on August 8 following his reinstatement on July 27, 1972. 4 The .parties submitted an exhibit to be received after the close of the hearing as C.P. Exh. 3 for which a place had been reserved at the conclusion of the hearing. On January 8, 1973, Attorney Charles Frisch submitted a letter to the -undersigned to which was attached a letter from Attorney Greenberg to Attorney Bye and also attached a paper marked Exh. C with a heading "Andrew Joseph Hauner " On January 15, the undersigned issued an order stating that unless good cause to the contrary was shown by January 29, that these letters and the paper headed Exh. C would be received in evidence as C.P. Exh 3 in lieu of the letter which it was provided at the conclusion of the hearing on December 19, 1972, would be furnished as C P. Exh. 3. No objection to said order was submitted and the aforesaid letters and attachment Exh. C are hereby received as C.P. Exh. 3. The General Counsel submitted a motion on January 26, 1973, to correct the transcript in two respects and advised that counsel for Respondent and the Charging Party had been advised and had no objection. The requested changes involved change of the date of January l to June 1, 1972, on p. 221, 1. 4 and p. 317,1.2 and 3 of the transcript. The motion is hereby granted and the changes made accordingly. 207 NLRB No. 20 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and _ Helpers of America, herein called the Union, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction On April 10, 1973, four of Respondent's drivers, Peterson, Hauner, Buelow, and McCourt, executed cards authorizing the Union to represent them. A fifth driver, apparently a temporary one, was not solicited. At the time the authorization cards were signed Respondent employed five -drivers and Robert Scholer as a dispatcher and an occasional driver.5 It was admitted by Respondent (during the hearing) that the following unit, as set forth in the complaint, is appropriate, and I so find: "All full time truck drivers of the Employer; excluding all other employees, guards and supervisors, as defined in the Act, as amended." On April 11, 1972, the Union sent a telegram to Respondent stating that it represented a majority of the employees and requesting a meeting for the purpose of contract negotiations. Respondent admitted receiving the telegram but would not agree as to the date of receipt. On April 11, 1972, the Union filed a representation petition (covering employees in the aforesaid unit) with the Regional Office of the Board in Minneapolis which Respondent acknowledged receiving on or before April 13, 1972. As previously set forth,- a settlement agreement was executed but not complied with, following which the hearing was resumed. It is conceded that the Respondent has not, and is not, bargaining with the Union. On April 16, 1972, Respondent discharged drivers David Peterson and David McCourt. On May 10, 1972, Respon- dent suspended driver Andrew Hauners for 30 days and during that period terminated his employment. Peterson was rehired on July 27 and again terminated on August 8. Cy Kirvan was the president and principal owner of the Respondent and an admitted supervisor. Robert Scholer was his son-in-law, a part owner of the Company and dispatcher of the Company to whom the drivers reported upon their leaving or returning when Kirvan was not present. Scholer drove about 10 trips a day each during the past year. He put together the assignment papers and assigned work to drivers, handled expense money and gave them their pay and they were instructed to call him to turn in their papers when they returned. He also set up loads. The foregoing- indicates that Scholer was a supervisor within the meaning of the Act and I so find. B. The Alleged 8(a)(1) Activity According to former employee driver Andrew Hauner, on April 20 he had a conversation with Cy Kirvan and stated, about 60 hours was all he was allowed to drive in 7 days. -Kirvan said he had never heard of anything like that. 5 Scholer's status as an employer-supervisor is in issue to be considered hereafter. 6 Driver Victor Buelow appears to have quit about the first week in May. Hauner was then asked what else was said and responded "Well I didn't say any more. He got around to the Union, that he knew, at the time, I guess, that we had requested union recognition and he said he would never have anything to do with them. He says `they can jump up-and down on me and stomp me in the ground and kill me or anything,' and he'd never have the Teamsters in there." Kirvan denied that he used the words set forth in paragraph 7 of the complaint which alleges that "On or about April 19, 1972, Cy Kirvan told employees at Respondent's place of business that he would rather be dead than operate under a contract with the Union and that the Union could kill him but he would never have the Union in his operation." Kirvan also testified, "Never had I discussed - the Union with those men" (in April). He admitted that he discussed the matter of the union contract later in the summer with Peterson. McCourt testified that shortly after his termination he had a conversation with Scholer. McCourt said, "I had stopped Ben (Anderson, another driver) and was talking to him, and he (Scholer, came by) asked me he said `What is going on around here. The boss is mad enough to fire everybody.' I said `I don't know, but I think we'll find out pretty soon,' and he (Scholer) -says `well I will tell you one thing, no union is going to keep me out of my truck.' " Scholer did not testify and I am crediting McCourt's testimony with respect thereto. This statement indicates both Scholer's awareness of and animus towards the Union. At the end of July or beginning of August after he had been reinstated, Peterson made some trips wherein his truck engine became warm and which led to his termina- tion. Peterson testified that between his second and third trip he had a pleasant conversation with Cy Kirvan (with Scholer present) and the subject .was, "Oh this union business and he asked me what was wrong around there and what I thought was the trouble, why we did what we did and all this." Peterson was asked if they discussed negotiations and responded that he told Kirvan they would not sign a regular contract, that it would be a special commodities contract, that none of them were after a raise, but they wanted a little more time off and better working conditions. Kirvan's version of this conversation is quite different. Kirvan testified that Peterson told him that he was no longer running the operation, they would run it for him and that Peterson said in essence that the trucks would be incapacitated. Kirvan said that on Peterson's last trip "he busted the engine. "7 In view of certain testimony hereafter, I am, in addition to crediting McCourt's statement about Scholer with respect to the Union, also crediting Hauner's testimony above that Cy Kirvan threatened that he would never have the Teamsters in his operation. This is based on both my observation of the witnesses and the probabilities with respect to certain events relating to the discharges, as asserted by Kirvan, infra. I find that by Kirvan's threat to Hauner, Respondent thereby violated Section 8(a)(l) of the Act. 7 The truck incident is discussed in detail hereafter My findings with respect thereto would also negate any implication of intentional damage. KIRVAN TRUCK LINE, INC. 227 C. The Discharges of David Peterson As set forth, on April I1 the Union sent Respondent a wire requesting recognition which was admittedly received at an unspecified time. Sometime on April 11, the Union filed a petition with the Board, seeking representation among the employees in the unit found appropriate above. A copy thereof was mailed that day to the Respondent and admittedly received on April 13. Respondent as of that time was accordingly aware of the union activities of its drivers. On or about April 16, Kirvan terminated two of the four full-time employees then employed by the Respondent for reasons to be considered hereafter. As found above, on April 20, Kirvan made the statements that under no circumstances would there be a union in the plant. Driver Victor Buelow said that he left the employ of Kirvan the first week in May and that shortly before then, he had a conversation with Kirvan about the Union. Buelow testified that Kirvan asked him "what is all the union business about" and Buelow told Kirvan that all the drivers were in agreement and felt that something had to be done and that this was the way they were going to solve their problems. Buelow could not remember any response by Kirvan. David Peterson testified that in early April 1972 he heard Kirvan remark that the employees he had right then were the best employees he had ever had.. Kirvan did not directly deny the statement. He said he didn't remember making the statement but that he wouldn't positively deny that he made it. Kirvan testified that Vic Buelow was a good man and Andy Hauner was a very good man but that Peterson wasn't what he would call an extra good driver and that Peterson was always "complaining and crying." As for McCourt, Kirvan testified that he objected to certain things about McCourt which will be considered infra, but Kirvan also stated "he was a good driver." According to David Peterson, he worked for the Respondent from about October 1970 until May 1971 and then from about September 1971 until he was discharged on April 16, 1972, and then again from July 27, 1972, until his subsequent discharge on August 8, 1972.8 Peterson's separation notice dated April 17, 1972, states his last day of actual work was April 15, 1972, the date work began was September 30, 1971, and that the explanation for separation was "Running truck low on oil. Argument with management." With respect to this termi- nation, Peterson testified without any contradiction that Respondent had never warned or reprimanded him for the way he performed his job, except to get his bills in and that he had been told when he was first assigned to his truck to watch the oil and that he did so. On the evening of April 13, 1972, Peterson drove his truck to International Falls from St. Paul and at Virginia, Minnesota, noticed there was an oil leak, and added all the oil that he had with him. Peterson had been given a certain amount of oil to carry to be used in case the oil was low. According to Peterson, the gauge registered normal from that point to International Falls and upon his return he reported the leak to Dispatcher Scholer, who said okay and handed him papers for another load which Peterson declined to take because he had already driven more than 60 hours that week. Peterson also showed Kirvan that the oil was low on his truck but Kirvan said he was unable to see because he didn't have his glasses. Kirvan testified that he normally carried his glasses in his pocket. Kirvan then told Peterson to drive the trailer to the Boise Cascade mill and back, a distance of about 7 miles each way. Peterson's testimony with respect to the oil was confirmed by Hauner, who had been following him. Peterson also testified that he used the oil he carried with him first before he would have purchased any. Peterson further said that between Virginia, Minnesota, and International Falls there was no place he could have stopped for oil if he had needed it. According to Peterson, when he came in on Sunday, Kirvan told him he would not be going out. Peterson asked when he would and Kirvan evaded his question. Peterson said he asked if he was fired and that Kirvan said, "You want to put words in my mouth?" Kirvan accused him of running the truck low on oil but Peterson pointed out that he had used all the oil he had and no station was open between Virginia and International Falls. Peterson also said the truck was about a quart low on oil at the time he brought it in. According to Peterson, the conversation was a quiet one with no profanity or raised voices. When he came back the next day, Kirvan had his final check ready and he accepted it with no words exchanged. According to Kirvan, Peterson engaged in excessive profanity when Kirvan accused him of running the truck low on oil. Peterson said that Kirvan was sitting in a chair with a grin on his face when he told him on Sunday, April 16, about the oil being low. Hauner, who heard a little of the conversation, said that he heard a few words but did not hear any profanity or raised voices. On the 13th, neither Kirvan nor Scholer acted as if the oil leak was of consequence. Scholer was going to send Peterson out again with the truck until Peterson declined because of excess hours. Kirvan told Peterson to take the truck the 14 miles to and from the Boise Cascade mill. During the course of the brief discussion on April 16 between Kirvan and Peterson, according to Peterson, Kirvan said Peterson should have called him. Peterson said he told Kirvan he didn't help him the last time he had trouble on the road. The latter, according to Kirvan, referred to an incident at night in subzero weather when nothing could be done. Kirvan claimed that Peterson liked to throw his weight around. Also, according to Peterson, on his return on the 13th the truck still showed on the gauge that the oil was satisfactory but Kirvan asserted that the gauge alone would not be adequate. In evaluating this first termination of Peterson, the termination of McCourt occurring at about the same time is to be noted and Peterson's second discharge on August 8 will also be considered. Following the opening of the hearing on July 18 and the settlement agreement, Peterson was offered employment and returned on July 27. He was thereafter terminated again on August 8, allegedly for burning out a truck. 8 According to Kirvan , prior to the April 16 termination, Peterson quit once or twice before that but did not specify when or why. one time between 1969 and 1971 and came back and that he discharged him 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Peterson testified he reported the truck was heating up after both -his first and second trips, and that the mechanic tried to solve the problem. There appears to be no contradictory evidence and I credit Peterson's testimony. Between his second and third trip, Kirvan and Peterson had a talk about union negotiations. There is sharp disagreement in their testimony. Peterson testified he told Kirvan that the employees were not after higher pay primarily but more time off and would agree to a special commodities contract and not insist on the standard national contract. Kirvan contended that Peterson threat- ened to damage his equipment and testified, "No, he was talking to me. He says, `They're going off. We are going to knock them out one by one.' I said, `Just how can you do that?ff 'Well, we'll see.' And he-took the truck out and then brought her back, she was off the road, they was done." According to Kirvan, "I sent him (Peterson) out and he came back. That was the last trip the truck made because he busted the engine. I don't know how and don't know anything about it." Kirvan was then asked, "Q. What evidence do you have for that, that he had done it, or that the engine was busted for that matter? A. He had done it!, 9 Kirvan was asked what happened to the engine and testified, "It had been run hot and it cracked the head and put water down through the top of the engine and scored all the cylinders and the head was cracked and had to be replaced and had to have new bearings in it. Of course, when you take the bearing out, you put a new one in.,, As set forth, when Peterson returned from his third trip, the engine still overheated and Kirvan discharged Peter- son. Kirvan asserted that Peterson intentionally damaged the diesel engine by "crowding the governor," that is overapplying gas at the maximum speed which, according to Kirvan, caused the engine to heat, scored the cylinders and cracked the head. Peterson denied that he "crowded the governor" or that it was possible to do so. Kirvan's testimony with respect to "crowding the governor" was contradicted by Gerry Moen, business agent for the Union with 25 years of over-the-road experience. Moen testified it was not possible to burn up a diesel engine by giving it too much gas at the maximum amount of RPM's. Moen explained why as follows:. A. Because the governor is set for an empty load of 2,250 and a loaded pull of 2,100, and when the governor reaches that speed that's all it will go. It is just like shutting the fuel off. Q. What happens if you give it more gas? What happens to the gas? A. It runs back to the tank. Kirvan claimed that there was about $1,800 of repair work but no bills were submitted. Peterson also testified that the day after the discharge, he saw Scholer driving the truck. Kirvan, testified that the truck was test-driven by a mechanic after Peterson's discharge, but he had the mechanic work on it and test run it for several days before discharging Peterson after his third trip to be sure the truck had really been damaged. Exactly why Scholer was driving it isn't too clear if Kirvan thought there was the damage 9 Peterson, as set forth supra, gave an entirely different version of the conversation Further, I am finding infra that Peterson was not responsible that he asserted they found after the engine was torn down. More significant, in addition to Moen's testimony, is the fact that it is undenied that Peterson had pointed out that the truck was overheating after the first trip and after the second trip. If he had any intention of doing something wrong or was doing what he shouldn't have done, what would be his purpose in asserting that the truck was overheating, telling Kirvan about it, and trying to find out why? It appears rather clear that Peterson was trying to ascertain what was wrong and to rectify it, and I so find. The question is, why in both instances of termination was Peterson discharged? Although Kirvan referred to the oil leak which they were able to find and rectify, and although this was mentioned on the separation notice re the April 16 termination, when Kirvan testified he predicated Peterson's termination upon the alleged profan- ity addressed to him. Kirvan said that Peterson used excessive profanity at the time he terminated him in April. As set forth, Peterson and Hauner testified there was no profanity. While there may' well have been some strong expressions, based on my observation of the witnesses, the conflict between the first separation notice and Kirvan's testimony as to reasons for termination, and the record as a whole, I am crediting Peterson's and Hauner's testimony that Peterson did not engage in profanity directed to Kirvan in his conversation with Kirvan. With respect to the termination in August, according to Kirvan, prior thereto Peterson had told him that no matter what the Union agreed to, the men would engage in conduct that would put him out of business . The likelihood of that action appears to be somewhat remote since, for if such were to occur, Peterson, himself, would have been out of a job. There may well have been some misunderstanding as to what would occur, but I doubt that such a threat was made and find it was not. The terminations of Peterson on April 16 and August 8 do not appear to have been for "good cause" nor for justifiable reasons but rather based on pretexts. Whether or not the union activities of Peterson were the real basis will be considered subsequently. D. The Discharge of David McCourt McCourt began work for Respondent in February and drove a conventional truck without a sleeper, being the only driver to do so. He had requested permission of Kirvan to make his trips in I day but Kirvan refused. According to McCourt, he only had one dispute with Kirvan over the time he should or should not leave. Kirvan testified there were constant disputes with McCourt with respect to his leaving. According to McCourt, during his last week of employment, Scholer started assigning him 1- day trips. He asked Scholer to continue and Scholer agreed. McCourt also testified Respondent did not reprimand him orally or in writing during his period of employment. Kirvan, as stated, said McCourt was a good driver. On April 16, McCourt stopped at Respondent's office to see where he was dispatched. He took the expense money which was on the wall out of the envelope, saw the bills, for the damage to his truck. KIRVAN TRUCK LINE, INC. 229 concluded he could make it by leaving about 4 p.m., and left. About 1:30 to 2 o'clock, according to McCourt, Scholer called him to tell him about the trip. McCourt told him he would leave around 4, to which Scholer voiced no objection. McCourt said he arrived about 4:45. Kirvan was there and the first thing Kirvan asked was "Do you have your expense money?" Before McCourt could answer, Kirvan told him "Turn in your key, we don't do things around here that way." McCourt said he explained it was not like stealing money and that Kirvan replied, "No," and then said, "We don't wait for nobody around here." McCourt testified that once the money was placed with the bills, the driver was charged with it. Kirvan did not contradict this, but said that the drivers who picked up the money were the experienced ones whom he trusted (such as Buelow and Hauner) and also that when they picked up the money, they were expected to take off with the truck, not necessarily on their route but at least depart with the truck which McCourt had not done. McCourt and Kirvan agreed that McCourt's termination notice stated that the reason was "personal"-which appears to be a different reason. Kirvan testified in essence that he terminated McCourt because he didn't leave on time, by which he testified he meant noon, but Kirvan did not testify that he told McCourt to leave at that time. Kirvan said he told McCourt the week before to "start out when I want him to start so he can get his driving hours in." McCourt denied that Kirvan gave him any specific instructions about departure time, other than when he first started employ- ment and during his last week when Kirvan had told him with respect to a "load to the city" 10 he could leave with a particular load any time he wanted. Kirvan indicated that the trip on Sunday would be about 400 miles and he expected McCourt to get 8 hours' rest before making delivery in the morning, which Kirvan wanted to occur before 8 o'clock. A trip of 400 miles presumably would take more than 8 hours to complete if a driver were, conforming to the normal speeds and stops. However, as stated, there is no evidence that any specific time of starting was directed for this Sunday trip and Scholer did not object to McCourt's starting out at 4. On the other hand, I note Kirvan's testimony that he was having disagreements with McCourt over the times that he left because of Kirvan's concern about McCourt's driving too many hours in a day or driving too many hours without rest and that an accident might result. Kirvan in his testimony predicated McCourt's termination on the ground that it was because McCourt would not be able to get to where he was expected to within the time allotted. There is no question that drivers left for various locations at practically any and all hours so there was no specific hour for leaving. This would depend on the length of the trip as well as other schedule requirements. On McCourt's separation, as stated, Kirvan gave the reason "personal." Ktrvan explained that he did not want to mention money so as not to harm McCourt. Kirvan testified: Q. You are not making any claim that he did anything wrong in taking $40? A. No; I never charged him with that at all. On his discharge I put "personal" on it because I didn't want to harm the fellow. Because if I put something like "money" on there first you have to prove it, and second of all, it has a bad reflection on the future. Q. So it was failure to adhere to the starting time that you wanted him to leave? A. That is right. While Kirvan appears to be putting the termination on the basis of departure starting time, he indicates he marked "personal" so as not to deal with the matter of money which Kirvan did not assert was illegally taken and which admittedly was taken in similar manner by other employ- ees as part of their expense money. The confusing explanations and inconsistent positions with respect to the termination support a conclusion that it was neither for good cause nor justified. Again the question remains was the termination because of union activity? In my judgment, both Peterson's initial dismissal and termination and McCourt's termination occurring on April 16 were both pretextual and the result of the Union's organizational activities in which they participated. I base this finding on the timing of the terminations immediately following awareness of the Union's organizational activi- ties among its drivers, the credited statement made by Kirvan to Hauner on April20 that Kirvan would under no circumstances have a union,ii the fact that these constitut- ed two of the four then regular drivers, and that McCourt was admittedly a good driver,12 on my finding, supra, that Peterson's termination (of April 16) could not be justified and appeared to be pretextual and on my finding that as to McCourt's termination, Respondent's explanations are inconsistent, confusing, and unjustified. For all of these reasons, I conclude and find that McCourt and Peterson were terminated on April 16 because of the union activities which had occurred and that Respondent, by so terminat- ing Peterson and McCourt, violated Section 8(a)(3) of the Act. The same applies to Peterson's subsequent termina- tion (on August 8)-it having essentially no valid basis. Peterson, himself, had twice reported the overheating and Kirvan's effort to place the blame on Peterson because of "crowding the governor" cannot be established' except through Kirvan's testimony in the nature of a conclusion which in turn was rebutted by the testimony of both Peterson and Moen which I am crediting. I have concluded and find that this latter termination relates back to Peterson's prior termination and that Peterson was again terminated on August 8 because of his prior union adherence and in violation of Section 8(a)(3) of the Act. E. The Discharge of Andrew Hauner Andrew Hauner was employed by Respondent from 10 St Paul-Minneapolisi - 12 At the time of the termination, according to McCourt, Kirvan told 11 Respondent's attitude toward the Union is also manifested by him "As a driver you are tops, but if you don't want to do things the way we Scholer's remarks, supra ("The boss is mad enough to fire everybody") to do them we don't want you around." As previously set forth, Ktrvan himself McCourt shortly after McCourt's termination-indicating Kirvan was quite testified that McCourt was a good driver, angry about the union activity. 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD October 1969 until he was suspended on about May 9 or 10. At no time was he reprimanded or criticized. Kirvan testified that Hauner was a very good man. Kirvan had never spoke to him or criticized him for violating any Department of Transportation or ICC rules. On May 10, Respondent wrote Hauner suspending him for 30 days because his log showed violations of driving hours. Under the regulations of the Department of Transporta- tion, responsibility for observance of rules is on both the carrier and the driver.13 The rules involved in Hauner's case : requirement of 8 consecutive hours off duty as specified, a limit of 10 hours of consecutive driving, and of 60 hours on duty in a 7-day period. Kirvan said that until he had been advised by Hauner about a 60-hour limit in a 7-day period he was unaware of such a requirement. Whether this were so or not is not material since it was Respondent's responsibility to see that these rules were adhered to. Kirvan said that he was aware of the 8-hour break and a -limit of 10 hours consecutive driving and 15 hours total work time in a day, including waiting time. Respondent controlled the number and length of trips and insisted on meeting particular delivery schedules. It also had sent its drivers on so many trips per week that they had worked longer than 60 hours per week. Buelow so testified and it also appears that this had occurred with respect to Peterson and Hauner. Buelow said he had run as many as 3,900 miles in a week which could have been 70 or 80 hours. Peterson said that he had exceeded 60 hours a week in a 7-day period. Hauner also testified that was the reason he started turning in his logs just the way he had been dispatched from about March and April 1972, although he had not done so from the time he was first hired. Hauner was asked what caused him to start doing this and replied "What we all wanted was to run the legal hours so we'd have a little time off." While accurate logs would aid the Respondent in computing the hours, Respondent was not unaware of the distances and the extent of driving involved. In fact, the expense money which it gives to the drivers takes into account the distance that they're expected to go. Respondent accordingly would necessarily have to have been aware of any material variation from the required hours. Of course, if such were of a very minor nature, it might not know this. Respondent therefore both legally and practically was responsible for any marked or substantial variation in hours from those required and accordingly bore a joint responsibility with Hauner for any excess of hours that he would have worked in a particular week. Respondent would also be responsible for any excess hours of driving or work during a day, although perhaps less likely to note such than the excess during the week. In any case, it has the legal responsibility therefor. The situation at the time of Hauner's incident was as follows. He reported for duty at 7 o'clock on May 2, took a load to Lakeville, Minnesota, slept 5 hours on the way, and returned to International Falls at 9 the next day. He was then given his bills for the next load which he took on and left again without any off-duty time. Accordingly, during a 26-hour period he had 5 hours of sleep. On a subsequent trip he was sent to Waukesha, Wisconsin, nearly 600 miles, and instructed to make delivery during that workday. He slept 5-1/2 hours and continued his trip until he was stopped at the scale in Carlton, Minnesota. At this scale he was checked for certain defects in the truck and it was then noted by the DOT representative that Hauner had not had the requisite amount of sleep, had driven too many continuous hours, and also his total hours appeared to be in excess of the weekly requirements. It is clear that whatever failures of compliance- with regulations Hauner had at this point was because of Respondent's scheduling of his work and the Respondent was equally liable with Hauner for the manner and extent of dispatch in violation of the rules. Under the circumstances, the suspension of Hauner for 30 days appears to be arbitrary and unreasonable. The letter of May 9 from Kirvan to him reads th4t his log "show violation of driving hours," that "his knowledge of the regulations came from your years of driving plus the fact you informed me just the other day, what the regulations were." It then adds: "If this had happened to an inexperienced driver, then I would say it could have been because he was not duly instructed in his field." It concludes: "But for a driver of your ability and knowledge, there is no excuse and I have no other recourse but to give you a 30-day suspension starting May 10, 1972, to protect myself and the truck lines." Following this, during the 30-day suspension period, Kirvan proceeded to hire a lease operator and to terminate Hauner's employment completely. The foregoing was done to a man who was admittedly an excellent driver about whose work there were no com- plaints, who had been sent on the assignment and schedules set by the Respondent, which was accordingly responsible therefor. Why was such action taken with respect to Hauner? Why the suspension when the ultimate responsibility lay with the Respondent rather than Haun- er? Second, why then the termination? Why the immediate lease-operation transaction which replaced Hauner perma- nently? The only logical conclusion is that the Respondent sought to eliminate Hauner as the final one of those who had participated in the union activity. Based on the foregoing, I conclude that Hauner (as well as McCourt and Peterson) was also terminated for his participation in the union activity which, as previously indicated, Respondent was made aware of as early as April 13, if not before. I accordingly find that Respondent, by terminating Hauner, violated Section 8(a)(3) of the Act. F. The Alleged Refusal to Bargain As previously set forth, the parties agreed to the unit found appropriate. On April 11, when the Union requested recognition by telegram which the Company admittedly received, it represented a majority. (four) 14 of the five persons stipulated to have been in the unit. 15 It was further agreed that Respondent did not recognize the Union. Respondent's participation in the unfair labor practices 13 See DOT regulations 395.1 and 395.3(a) and (b) issued under Sec. 204, signed cards so that as of that date the Union represented a majority 49 Stat. 546, as amended; 49 U.S.C-304, unless otherwise noted. 15 Scholer. as found above, was a supervisor excluded therefrom. 14 As set forth supra, on April 10 four of the five employees in the unit KIRVAN TRUCK LINE, INC. 231 found above are clearly of such a nature that the coercive effects cannot be eliminated by the application of traditional remedies with the result that a fair and reliable election cannot be held. I accordingly find that it is appropriate, and requisite that Respondent be ordered to bargain upon request with the Union's and am recom- mending such order. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. A broad cease and desist order is warranted in view- of Respon- dent's conduct found above. It has been found that Respondent unlawfully dis- charged Peterson, McCourt and Hauner. It will therefore be recommended that Respondent offer these employees immediate and full reinstatement to their former jobs, or if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings suffered by reason of the discrimination against them, by payment to them of a sum of money equal to that which they normally would have earned, absent the discrimina- tion, less net earnings during such period, with backpay computed on a quarterly basis in the manner established in F. W. Woolworth Company, 90 NLRB 289, plus interest at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It will be further recommended that Respondent preserve and make availa- ble to the Board, upon request, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary and useful to determine the amounts of backpay due and the rights of reinstatement under the terms of these recommendations. Upon the foregoing findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging David Peterson and David McCourt on April 16 and suspending Andrew Hauner on May 8, 16 See N.L.RB v Gissel Packing Co., Inc., 395 U.S. 575 (1969). 17 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, and recommended Order herein shall, as provided in 1972, and thereafter discharging him, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and, independently, Section 8(a)(1) of the Act. 4. All full-time truck drivers of the Employer; exclud- ing all other employees, guards and supervisors as defined in the Act, as amended, constitute a unit appropriate for the purposes of,collective bargaining within the meaning of Section 9(b) of the Act. 5. Since April 10; 1972, the Union has been, and is now, the exclusive representative of all employees in the appropriate unit within the meaning of Section 9(a) of the Act. 6. By failing and refusing, at all times on and after about April 13, 1972, to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) of the Act. 7. By threatening that it would never deal with the Union, Respondent has violated Section 8(a)(1) of the Act. 8. By all of the foregoing, Respondent has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, and -has thereby engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the above findings of fact, conclusions of law, and the entire record, and pursuant to-Section 10(c) of the Act, I hereby issue the following recommended: ORDER 17 Respondent, Kirvan Truck Line, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Local 346, General Drivers, Dairy Employees, Warehousemen and Helpers and Inside Employees, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any other labor organiza- tion, by discharging or terminating employees, or in any other manner discriminating in regard to hire or tenure of employment or any term or condition of employment. (b) Failing or refusing to bargain collectively with the above-named labor organization as the exclusive bargain- ing representative of all employees in the appropriate unit, described above. (c) Threatening it would never deal with the Union, and in any other manner interfering with, restraining or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement in conformity with Section 8(a)(3) of the Act, as amended. 2. Take the following affirmative action designed to effectuate the policies of the Act. 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. 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Upon request, bargain collectively with the above- named labor organization as the exclusive representative of the employees in the appropriate unit, and embody in a signed agreement any understanding reached. (b) Offer David Peterson, David McCourt and Andrew Hauner immediate and full reinstatement to their former positions, or if those positions no longer exist, to substan- tially equivalent positions, without prejudice to their seniority or other rights or privileges, and make them whole for any loss of earnings, in the manner set forth in "The Remedy" section of the Administrative Law Judge's Decision. (c) Preserve and make available to the Board or its agents all payroll and other records, as set forth in "The Remedy" section of the Administrative Law Judge's Decision. (d) Post at its International Falls operation and facilities, copies of the notice attached hereto as "Appendix." 18 Copies of said notice, on forms provided by the Regional Director for Region 18, shall, after being duly signed by Respondent, be posted immediately upon receipt thereof in conspicuous places, and be maintained for a period of 60 consecutive days. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced or covered by any other material. (e) Notify the Regional Director for Region 18, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 18 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 National 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." WE WILL NOT refuse to bargain collectively with the above-named Union, as your exclusive bargaining representative. WE WILL NOT in any other manner interfere with, restrain or coerce you in the exercise of the rights guaranteed employees in the National Labor Relations Act, which are as follows: To engage in self-organization To form, join or help unions To bargain collectively through a representa- tive of their own choosing To act together for collective bargaining or other mutual aid or protection To refuse to do any or all these things. Since it has been found that we unlawfully dis- charged David Peterson, David McCourt and Andrew Hauner, WE WILL offer to give them back their regular jobs, or if those jobs no longer exist, we will give them substantially equivalent jobs, and WE WILL pay all the above-named employees for the earnings they lost because of the discrimination against them, with 6 percent interest. WE WILL, upon request, bargain collectively with Local 346, General Drivers, Dairy Employees, Ware- housemen and Helpers and Inside Employees, affiliat- ed with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of our employees in the appropriate unit, and put into a signed agreement any understanding reached. The appropriate unit is: All full-time truck drivers of the Employer; excluding all other employees, guards and super- visors as defined in the Act, as amended. 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 punish you, in order to discourage membership or support for Local 346, General Drivers, Dairy Employees, Warehouse- men and Helpers and Inside Employees, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or any other labor organization. WE WILL NOT threaten that we will never deal with the Union to stop you from joining or helping a union. KIRVAN TRUCK LINE, INC. (Employer) Dated By (Representative) (Title) 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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 316 Federal Building, 110 South Fourth Street, Minneapolis, Minnesota 55401, Telephone 612-725-2611.