Wes-Flo Co., Inc.

WES-FLO CO, INC. Wes-Flo Co., Inc. and Frank Earl Frazier, Thomas G. Green, and Vincent T. Lacey. Cases 12-CA-6640, 12-CA-6671, and 12-CA-6734 February 6, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On August 29, 1975, Administrative Law Judge Phil Saunders 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 Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings,' findings2 and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Wes-Flo Co., Inc., Tam- pa, Florida, its officers, agents, successors, and as- signs, shall take the action set forth in the said rec- ommended Order. i As Respondent concedes, the Board does not permit pretrial discovery as matter of normal practice. E g., N L.R B v. Interboro Contractors, Inc., 432 F.2d 854, 858 (C.A. 2, 1970); J H Rutter-Rex Mfg. Co., 194 NLRB 19 (1971), enfd. in relevant part 473 F.2d 223 (C.A. 5, 1973). The Respondent rests its claim of prejudice essentially on the fact that credibility issues were critical; however, parties to Board proceedings are routinely provided with any affidavits taken by the General Counsel, if requested, before cross- examination, for the particular purpose of testing credibility. We do not believe providing the names of witnesses and copies of affidavits before trial would significantly advance the search for truth, particularly in light of countervailing considerations. Respondent does not argue that it was sur- prised or that at any time during the hearing it sought and was improperly denied an adjournment or recess because of any surprise. We find that the exception is without merit. 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule 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 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951) We have carefully exanuned the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE 801 PHIL SAUNDERS, Administrative Judge: Based on charges filed by Frank Frazier, Thomas Green, and Vincent Lacey, a complaint against Wes-Flo Co., Inc., herein Respondent or the Company, was filed on March 20, 1975,' alleging violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. Respondent filed an answer to the complaint denying it had engaged in the alleged unfair labor practices. Subsequent to the hearing before me on this matter, both the Respondent and General Counsel filed briefs. Upon the entire record in this case, and from my obser- vation of the witnesses and their demeanor,2 I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The Respondent is a Florida corporation with an office and place of business located in Tampa, Florida, and is engaged in business as a carrier of motor freight within the State of Florida, and also engaged in the operation of a warehouse. Reynolds Metals Company is a Delaware corporation operating a plant in Tampa, Florida, and plants in other States, and annually receives goods and materials valued in excess of $50,000 at its various plants directly from outside the state where the plant is located. Respondent, during the past 12 months, has derived gross revenue in excess of $50,000 from Reynolds Metals Company for the warehous- ing of that Company's aluminum products. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Teamsters, Chauffeurs and Helpers Local Union No. 79, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, here- in called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Respondent's over-the-road trucking operations are performed pursuant to an equipment lease agreement with Gator Freightways, and Gator holds the carrier authority under a permit from the Florida Public Service Commis- sion. The Respondent's hauling is for customers of Gator Freightways, and for such hauling the Company is com- i All dates are 1975 unless stated otherwise 2 The testimony of all witnesses have been fully considered, and the ab- sence of a statement in the resolution of a conflict in specific testimony, or absence of an analysis of such testimony, does not mean that such resolu- tion or analysis was not made See Bishop and Malco, Inc, d/b/a Walker's 159 NLRB 1159, 1161 (1966). 222 NLRB No. 128 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pensated by a percentage of the gross revenue therefrom. The Respondent's over-the-road runs are primarily be- tween Tampa and Miami, Dania, Hialeah, Fort Lau- derdale, West Palm Beach, Fort Pierce, and Jacksonville. The main company terminal and headquarters are in Tam- pa. The normal commodities hauled include empty alumi- num cans, beer, packing materials, and Purex products, and the major shippers are Anheuser-Busch, Reynolds Metals, Purex, Weyerhauser, and Crown-Zellerback. At the present the Company has approximately 50 to 60 trac- tors and 135 trailers in its over-the-road operation. Arthur Perry, the president of Respondent, is still personally in- volved in all facets of the operations, including assistance in the dispatching office and even in the checking up on his drivers while they are out on the highways. The main issues in this case are whether Frank Frazier, Thomas Green, and Vincent Lacey were fired by Respon- dent because of their union activities, and whether Arthur Perry made statements to a recently fired employee, Charles Bryant, which violated Section 8(a)(1) of the Act. It is clear from the record that during January there was a union organizing campaign going on among Respondent's truckdrivers, and a union meeting was held in Tampa on Saturday; January 11, and which was attend- ed by Frazier, Green, and Lacey.3 Thomas Green was hired by the Respondent in 1974 as an over-the-road driver, and was discharged on January 14. On Monday, January 13, Green made a delivery by truck to West Palm Beach and was returning to Respondent's main terminal in Tampa on State Road 710, when he was stopped by an official of the Florida Public Utilities. The official checked the company equipment being operated by Green, and then gave him a written re- port citing some minor problems, and which report Green turned in to Respondent's dispatcher when he returned to Tampa a few hours later. On the next day Green was fired, and the reason given was that he was "off route" by driving on State Road 710. Respondent has determined the roads that it wants its drivers to use, and has also given its drivers Florida road maps which are marked to show the designat- ed roads or routes to be taken. State Road 710 runs from West Palm Beach to Okeechobee, but it is not marked as one of the designated routes. Green testified that State Road 710 was a better highway than the approved route marked on the company map, that he had upset four cases of beer on one occasion due to the roughness on the marked route, said that Jim Rogers, the Respondent's night dispatcher, had told him that Road 710 was the route they "usually ran," that other company driv- ers used Road 710, stated he was never told that being off route was dischargeable offense, and that the only reason for the marked routes on the company maps were to avoid weight scales. Green admitted his awareness of being off 3 By letter dated April 18, 1975, without prejudice to their position on the merits, the Respondent offered reinstatement to each of the three discrimi- natees involved herein, and all three accepted the offer and returned to work. Subsequently thereto it appears that Green voluntarily quit his job and Lacey is having medical problems, but for purposes here it is sufficient to note that on April 18 a valid offer of reinstatement was made and accept- ed. ° See G.C Exh 2. route on January 13, at the time he was stopped and his equipment checked. Anthony Gucciardo, a former driver for Respondent, testified he did not always follow marked routes, and that drivers were told by company supervisors not to go on roads "with scales." Gucciardo said that he had also driven Highway 60, an unmarked road on the map, and in so doing had broken down three times with the Company sending help to him, but nothing was ever said to him about these incidents even though on one occasion the Re- spondent had to send a mechanic out to his truck. Gucciar- do further stated that when driving for Respondent he had also taken Route 710 when making trips to West Palm Beach because it was a faster road, and he had seen other drivers of Respondent taking the same road. Frank Frazier stated that he also drove on Route 710, and on one occa- sion while on 710, he was stopped by a highway trooper who gave him a ticket showing the truck had been over- weight. Frazier said he turned this ticket over to the dis- patcher and Respondent paid the fine, but was never told by the dispatcher or any other official of Respondent that he should not have been on this road. Cecil Horn testified he had driven Route 710 before getting a company map, but that he did not drive on it thereafter. Witnesses for the Respondent testified that the Compa- ny has a firm rule against being off route, and when drivers are actually caught off route they are subject to discharge. Night Dispatcher Rogers denied giving Green or other drivers permission to drive on Route 710. The Respondent's witnesses explained in considerable detail why Route 710 is objectionable and less safe than the ap- proved roads. Admittedly, prior to March 1973, Route 710 was actually used by Respondent, but there was testimony that an accident occurred on Route 710 in March 1973 which resulted in the decision to pull all of the Respondent's trucks off this road. According to the Respondent's witnesses there are three basic hazards on Road 710: roughness of pavement, narrow pavement with only two lanes, and practically nonexistent shoulders. It is also a "lonesome stretch" of 50 or 60 miles with only one small town, Indiantown, and from which service calls are exorbitantly high. Frank Frazier was employed by the Respondent as an over-the-road driver from March 27, 1974, until his dis- charge on January 17, 1975, and the reasons given were that on January 15 he returned very late from his dispatch to Hialeah, and on the next day, January 16, he was unrea- sonably late in making his trip from Tampa to Jackson- ville.5 This record shows that on January 15, Frazier was dis- patched from Tampa at 4:30 a.m. for a delivery to the Winn-Dixie warehouse at Hialeah; that he called the Tam- pa dispatcher from Hialeah at 1:15 p.m., and was then 5 The decision to discharge was made by Arthur Perry who testified he did so because of Frazier's "conversion" of company equipment and being off route. Parenthetically, it should be pointed out that Perry' s use of the word "conversion" is not to be confused with the precise legal definition, but, rather, it is his term to describe a situation where a driver does not have a satisfactory explanation for his delays on the road Perry 's decision to discharge Frazier was communicated to W.M. "Skip" Borders, the Respondent's personnel manager. Borders testified the reason for the dis- charge was that Frazier had taken excessive trip time on January 15 and 16 WES-FLO CO, INC. instructed to return to Tampa with 24 pallets and 2 cases of damaged goods; and that he arrived back in Tampa at 1:30 a.m. the following morning. The distance between Hialeah and Respondent's Tampa terminal is about 247 miles and the normal driving time one way is around 5 to 5-1/2 hours, but the total time elapsed for Frazier's round trip on January 15 was 21 hours, approximately 6 or 7 hours lon- ger than was normal for such a trip. After his call to the day dispatcher in Tampa at 1:15 p.m., Frazier did not call the dispatch again until about 8 p.m., and then informed Jim Rogers, the night dispatcher, that he was in Clewiston, which is about 90 miles northwest of Miami, and that he had stopped to sleep for about 3 hours enroute and had also experienced some trouble with the battery cables on his tractor. It took Frazier about 1 hour to correct this problem with the battery. Although the Respondent does not prohibit its drivers from stopping for a nap if they are sleepy, it does request that the drivers call the dispatch office in Tampa if they are going to be stopped for more than whatever time is neces- sary to eat. Frazier did not call the dispatch office when he stopped to sleep, but did call after waking up, as aforestat- ed. At 1 p.m. on January 16, Frazier was dispatched from Tampa to Jacksonville. On leaving Tampa, Frazier headed out of town by the way of the 30th Street Extension, which parallels Interstate 75 to the north from Tampa. Shortly after getting on the 30th Street Extension, Frazier stopped at a small store on the outskirts of Tampa to telephone his wife, and in order to do so it was necessary to park his truck on the shoulder of the road. When Frazier returned to the truck he discovered that one of his tractor tires was bogged down in the soft fill on the shoulder of the road, and as a result he spent about 4 hours working by himself gradually inching the tractor forward in his efforts to get it back on the road. After doing so Frazier then drove to Wildwood, about 60 miles north of where he had been stuck, and then called Dispatcher Rogers in Tampa, who had reported for duty at 6 p.m., and advised Rogers of the cause of the delay. Frazier -then drove on to Jacksonville, but did not arrive at the terminal there until sometime late that night-' Upon his arrival in Jacksonville Frazier en- countered further difficulties in getting the terminal un- locked, but after about an hour or so a watchman ap- peared, and Frazier testified he then hooked up and brought back to Tampa the load he had been given or assigned at the time he left Tampa. Frazier also testified that before starting back from Jacksonville, he called Dis- patcher Rogers and inquired if anyone would be waiting for his load, and was informed no one would be waiting. Frazier got back to Tampa about 3 a.m. on January 17. Respondent President Arthur Perry testified that he had gone up to the Jacksonville terminal on the afternoon of January 16 for a business meeting and arrived there around 5 p.m. and, in keeping with his customary practice, checked the dispatched records and noted there was a load of draft beer to be hauled back to Tampa. Perry stated he then learned from the Jacksonville dispatcher that the beer 6 Jacksonville is approximately 210 miles from Tampa, and usually takes about ,4 hours one way. 803 load had been booked in expectancy of Frazier hauling it back to Tampa on his return that evening. According to Perry, he then called Tampa to determine if they had heard from Frazier and what his proximity was to Jacksonville, but was advised that Frazier had not called in. Perry stated that at this point of time Frazier should have been at the Jacksonville terminal, since the distance from the Tampa terminal is 210 miles and the normal driving time is about 4 hours. According to Perry, he was already aware of Frazier's delay on the Hialeah run the day before, as aforestated, and he then decided to switch the load of draft beer to Robert Way, who he said was the only other driver available at the Jacksonville terminal, but that Way had previously been scheduled to haul a nonpriority load back to Tampa. Vincent Lacey, also an over-the-road driver, was em- ployed by the Respondent around October 15, 1974. The last day he actually worked was Friday, January 10, 1975. It is Respondent's position that Lacey did not make him- self available for work on Monday and Tuesday, January 13 and 14, and that he acknowledged to Arthur Perry, on January 14, that he had quit. In his testimony Lacey described himself as the "instiga- tor" of the union activity, and stated he had picked up union cards around the middle of December 1974, and had started getting drivers to sign them. On Saturday morning, January 11, Lacey and the other drivers met with a repre- sentative of the Union to obtain additional information as to their organizational efforts, but testified that Al Castel- lano, one of the drivers who had been expected to attend, did not show up at this meeting and as a result he (Lacey) telephoned him, and was then told by Castellano that he had been advised by Arthur Perry the night before that he (Perry) knew about the union meeting and the identity, of those involved, and that the Company was going to "come down hard" on those persons, and that Lacey would be fired on Monday. Lacey then called the Respondent's day dispatcher, Randy Perry, on the morning of January 11 while the union meeting was still in progress, to find out if he was scheduled to be dispatched on Monday, but Randy Perry told him to call back later after the dispatch schedule was prepared. Lacey called back at about 2:30 that af- ternoon and was then advised there would be no runs on Monday and that if the Company needed him the dis- patcher would-call. Lacey, stated he did not receive any calls and as a result he phoned the company terminal on Monday morning, January 13, and was then advised by Randy Perry that there was nothing available as yet, but he would call Lacey if they got anything. Lacey stated that again he did not receive any calls, but after he had heard from Tom Green on Tuesday afternoon, January 14, that Green had, been fired, he then called the terminal that same evening and asked Arthur Perry if his paycheck was ready. He testified that Perry answered affirmatively and also told him they had tried to reach him until 1 p.m. that day, but that he and Skip Borders had then decided that Lacey had another job, and they had also requested the preparation of his final paycheck which was already in, Borders' posses- sion, and which Lacey could pick up the following morn- mg. Lacey further testified that he picked up his final pay- check sometime before noon the next day, January 15. 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Arthur Perry testified that he had never discussed the subject of the Union with Al Castellano. Randall Perry stated that the schedule sheet for January 13 shows that Lacey was listed theron as being one of several drivers who were "on call," and he had no recollection of any tele- phone call from Lacey on Saturday, January 11, but that his normal response to, inquiries from "on call" drivers, when there are no runs available, is that he will call them as soon as a run is available. Both Randall Perry and Arthur Perry testified that they attempted to call Lacey on Janu- ary 13 and 14, but without success. Randall Perry testified that as additional loads became available on January 13, he telephoned various "on call" drivers, and that afternoon he telephoned Lacey's home at 2 p.m. for the purpose of giving him one of the loads, but received no answer. Night Dispatcher Jim Rogers also stated he attempted to call La- cey on January 13, but could get no answer. Randy Perry testified that on January 14 Lacey's name was on the roster and he called him at home twice, but got no answer on the first call, and on his second call a "femi- nine voice" answered and informed him that Lacey was not home. Randy Perry said he made it a practice not to talk to "drivers wives." Arthur Perry stated that when he called Lacey a child answered the phone and told him that his dad was not home. Arthur Perry admitted receiving a call from Lacey dur- ing the late evening of January 14, but according to Perry he then told Lacey they had been trying to get ahold of him for 2 days, assured Lacey that he had not been fired, and told him that union activity had nothing to do with his status. Perry testified that at the conclusion of their conver- sation Lacey informed him that he already had another job. It is alleged in the complaint that on February 7 Arthur Perry interrogated and threatened employees, and created the impression of surveillance of union activities. All of the independent 8(a)(1) allegations concern statements made to Charles Bryant by Perry. Bryant had been terminated on the morning of February 7, allegedly because he had ruined two tires, and then had a conference or discussion with Arthur Perry soon thereafter in which his discharge and the subject of the Union was discussed. On the occasion here iii question, Arthur Perry informed Bryant that he knew the drivers were trying to get the Union in, told Bryant that on a certain date he (Bryant) had signed a card for the Union, that on January 31 Bryant was passing out cards at the terminal in Dania-Fort Lau- derdale, further informed Bryant that before he'd see the Union come in "he'd lock the doors up," but if the Union was successful he'd write the contract himself to make "it rough" on the employees so that everyone "would regret" signing a card. Perry then further told Bryant that he was a young man and would have no problem getting a job, but then referred to Frank Frazier and said, "he's kind of an old man and he ain't going to be able to get a job so easy." Perry then mentioned driver Cecil Horn and told Bryant that he was also a problem, and "if he didn't watch out he'd be gone before too long." 7 7 Questions were raised as to whether any statement made by Perry on this occasion could be considered a violation of the Act as Bryant had been Arthur Perry denied all of Bryant's foregoing testimony. Perry testified that he went to Miami on the afternoon of February 6, and did not return to Tampa until February 8, but then admitted that he did talk to Bryant on either Feb- ruary 8 or 10, and in their discussion they argued about the two tires the Company accused Bryant of running flat, while Bryant contended that both of the tires blew out .8 Final Conclusions In order for me to accept Perry's denial of all the union statements attributed to him by Bryant, as aforestated, I would have to conclude that in their February discussion Perry never at any time mentioned or made any reference whatsoever to the Union, that he and Bryant only talked about working conditions and the two truck tires, and that the several statements attributed to Perry about the Union and its consequences, were merely imaginative thoughts or hallucinations on the part of Bryant because actually abso- lutely nothing at all was ever said to Bryant on this occa- sion about the Union. From the sequence of events, the demeanor of the witnesses, and based on the circumstances and facts in this record as a whole, I am not prepared to make such conclusions, and I find otherwise. The foregoing testimony which has been credibly attri- buted to Perry includes instances of an unlawful threat to close down his trucking operations, a threat to write a con- tract that could result in loss of benefits, threats of dis- charge because of union activities, and creating the impres- sion of surveillance of union activities. These are types of employer conduct which are clearly prohibited by Section 8(a)(1) and consistently held violative of the Act. It is also well-established Board and court law that in determining whether an employer's conduct amounts to in- terference, restraint, or coercion within the meaning of Sec- tion 8(a)(1), the test is not the employer's intent or motive, but whether the conduct is reasonably calculated or tends to interfere with the free exercise of the rights guaranteed by the Act and, of course, the fact that employees were neither fearful nor apprehensive of their rights is immateri- al. Turning now to the three discriminatees named herein. The Respondent maintains and argues that the General Counsel has failed to offer sufficient proof showing prior knowledge of their union activities. A violation, of Section 8(a)(3) requires, as an element of its proof, the employer's knowledge of the employee's union activity. This neces- fired by the Company shortly before this conversation However, it is clear from the record that Bryant sought this interview with Arthur Perry in regard to his request that he be put back to work by Respondent. As point- ed out, in this situation Bryant was an applicant for employment, and of course, the Board has long held that statements to applicants , or to a former employee seeking reemployment, concerning the fact that the Company had previously fired other employees because of their union activities , is a viola- tion of Sec 8(a)(1) of the Act Fotofab Corporation, 181 NLRB 700 (1970). 8 For the purpose of attacking Bryant's credibility the Respondent pre- sented testimony to the effect that from a visual inspection of these two tires, both produced at the hearing, that the condition of the badly distorted one was caused by running it flat for a long distance , and that the other companion tire eventually blew from the extra weight and the heat generat- ed by the flat tire The Respondent further attacks Bryant's credibility on the basis of statements in his affidavit, and in particular his contention that certain drivers made less money after the union meeting on January 11. WES-FLO CO, INC. sary element, however, "need not be established by direct evidence, inference may be drawn from the surrounding circumstances." 9 I draw such inference here. I am satisfied that Arthur Perry learned, through sources close to him, as clearly indicated in the testimony given by Lacey and Bryant, that the three discriminatees involved herein were active supporters of the Union, and also knew that all three of them had attended the union meeting on January 11.10 Throughout this entire record the Respondent repeatedly points out that Perry was continually involved on a daily basis in every phase of his trucking business including the answering of the phone and even in the dispatching of the drivers. Under such circumstances, it is highly unlikely that with this constant vigilance and scope of daily contacts, Perry would be uninformed about union activities and identities. From this record it appears to me he was fully informed, and that he determined to disrupt interest and activity in the Union by immediately discharging the three drivers involved herein. No other conclusions better fits the facts, as I see them. I do not believe that Green would have been discharged for being off route without union motivation on the part of the Respondent. There is a good deal of testimony in this record that other over-the-road drivers were constantly op- erating on numerous roads not approved by the Company, but in the absence of extenuating circumstances were never fired because of this. As pointed out, both Randy Perry and Jim Rogers testi- fied that Respondent does not allow drivers to operate on State Highway 60 and/or U.S. Highway 27, north of State Road 70, unless the driver is making a specific delivery off such roads, and that any driver on these highways not making deliveries would be off route and subject to dis- charge. However, Anthony Gucciardo gave credited testi- mony to the effect that on three different occasions he had trouble with his truck on State Road 60 and contacted Respondent to inform them of his problems and where he was located, and at no time did anyone comment to him for being on Route 60, as aforestated. While Dispatcher Jim Rogers has no direct responsibilities in hiring and fir- ing, it is still worth noting here that by his own admission he could not recall any other driver, other than Green, who had been discharged for being off route. Moreover, on Sep- tember 17, 1974, Travelers Insurance Company submitted a document to the Respondent noting that both Green and Frazier were improperly driving on Highway U.S. 27. Re- spondent, when receiving this report, brought the report to the attention of the two drivers and which stated they were speeding and tailgating, but Respondent made absolutely no issue of the fact that they were not driving on an ap- proved road. Vincent Lacey credibly stated that late in the evening on January 10, he was returning from a Jacksonville trip to Tampa, and exited north of Tampa on Highway 53, and 9 N.L KB. v. The Pembeck Oil Corporation, 404 F 2d 105, 110 (C.A. 2, 1968), enfg. in pertinent part 165 NLRB 367 (1967) 10 Both Green and Frazier signed cards for the Union and attended the union meeting on January 11, and Lacey had picked up cards at the union hall, urged others to sign them, and also attended the union meeting on January 11. 805 that Arthur Perry was following him to check his speed and had passed him on State Highway 54. Arthur Perry agreed that he followed Lacey on this occasion in question to check his speed, and the only difference in his testimony was that the road on which he followed Lacey ,was State Highway 52. Perry further testified that his drivers, when running between Tampa and Jacksonville, were supposed to be on the Interstate Highway when in the city limits of Tampa, and drivers would be off route if they drive on other roads. As the General Counsel points out, both State Road 52 and 54 are roads off the Interstate north of the Tampa city area, and are not approved company routes, and it is therefore clear that Lacey was off route when followed by Perry, but Perry did not at any time stop La- cey or fire him, even though he had followed and clearly observed Lacey driving on a road not marked by the Com- pany as a designated route. Respondent Safety Manager Robert Childers gave the names of three or four drivers who had supposedly been discharged for being off route, but on cross- examination agreed that two of them had also destroyed property- knocking down light poles and tearing the top of -a trailer off-while other discharged for being off route had either abandoned their trucks or had engaged in some other types of serious misconduct. In the final analysis, I credit the testimony of Green to the effect that it was a frequent practice of the drivers not to follow the designated routes established by the Compa- ny, and that drivers were not discharged when only minor consequences resulted from being off route, as was the situ- ation on January 13 when Green merely received a citation for equipment defects while driving on State Road 710. As to Frazier the Respondent contends that his return trip from Hialeah on January 15 took 6 or 7 hours longer than normal and becuase of this delay he had to be scratched from a scheduled run the next morning, and fur- ther contended that his delay to Jacksonville on the next day caused another inconvenience. The Company argues that had Frazier been on time in Jacksonville, he could have hauled a waiting load of draft beer, a priority item, back to Tampa that evening, but that fortunately another driver from Tampa was in Jacksonville, and the load of draft beer was then rescheduled to him, as all detailed ear- lier herein. I reject the contentions and arguments of the Respondent, and find that union considerations triggered and motivated the discharge of Frazier. Frazier explained that he came back late from Hialeah because he had become sleepy and pulled off the road to take a nap and when he awoke he was unable to start his truck because of some battery difficulties which required about 1 hour to correct. The Respondent concedes- that drivers have every right to take naps when they feel the need and frequently do so, but insist that the drivers first call into the Tampa terminal- It is noted that Frazier called the Tampa terminal about 1:15 p.m. on January 15, so Day Dispatcher Randy Perry knew Frazier was in Hialeah and returning. Frazier next called Tampa at approximately 8 p.m. that same evening and informed Night Dispatcher Rogers he had taken a nap and had encountered battery problems and after so advis- ing Rogers, Frazier then proceeded to drive on into Tam- 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pa. Nothing was said to Frazier about his return trip delay when he arrived at the terminal, and there is no credited evidence in this record that this delay caused the Company any serious inconvenience, if any at all. Randy Perry sug- gested that counting the 3-hour nap period and the 1 hour for battery trouble, Frazier still should have returned by 11 p.m., but did not get in until 1:30 a.m. the next morning. In view of this testimony the Respondent is apparently basing their period of discontent on 2-1/2 hours, and on a delay that actually did not cause the Respondent any real prob- lems whatsoever. On January 16, Frazier left Tampa at 1 p.m. but was delayed on his trip to Jacksonville because he had pulled his truck into an area near a small store just outside of Tampa, and the truck had gotten stuck in the soft shoul- ders, and rather than calling the Respondent, he tried to get the truck out by himself and this took him several hours, as aforestated. Frazier admitted he had made a mis- take by not calling the terminal when he became stuck." Frazier also contended that while he got to Jacksonville quite late that evening, he still picked up the load that he had previously been assigned to bring back to Tampa, and brought that same load back after being told there was no rush. Respondent attempted to show that, by arriving late in Jacksonville on the night of January 16, Frazier caused the Company considerable problems due to the fact there was a rush load of draft beer in Jacksonville that Frazier was supposed to pullback to Tampa. In regards to this load of beer, Day Dispatcher Perry testified he had assigned'an- other driver, Tuttle, to drive from Tampa to Jacksonville in order to pick up the beer load when Frazier had not called in. However, as further pointed out, after examining the dispatch sheets for the time period in question, Perry had to change'his testimony as it was clear that Tuttle had not made any trips 'to Jacksonville during this period. Randy Perry then changed his testimony to say that the only dir- ver who could have made the trip was a driver by the name of Subrick,'but after again examining the dispatch sheets he testified that Subrick could not have made the trip from Jacksonville to Tampa. Perry then concluded, on redirect examination, that there was also the possibility that anoth- er driver who was already enroute to Jacksonville, could have been switched off to the draft beer load because it had a priority status. Night Dispatcher Rogers stated that Frazier was to call Tampa when he arrived in Jacksonville and receive instruc- tions as to what load he would bring back, and that he was the one who would give Frazier such instructions. Rogers said he was aware that a load of draft beer was being load- ed in Jacksonville, but that Respondent's driver, Robert Way, pulled this load back to Tampa, and that Randy Per- ry had assigned this beer load to Robert Way before he (Rogers) had reported to work. Arthur Perry testified that when he arrived at the Jacksonville terminal on the day in question, he called Tampa and asked whether they had II Whenever drivers have problems on the road they are supposed to call Tampa and the Company will either send out help from the Terminal if they are within 50 to 60 miles, or get assistance to them from a nearby service station if they are further out heard from Frazier, and after being informed that Frazier had not called in, he made the decision to have the load of draft beer pulled to Tampa by Robert Way, and so in- formed the Tampa dispatcher's office. It is notable that neither dispatcher mentioned any phone conversation with Arthur Perry concerning the beer load in Jacksonville, which both testified was dispatched from the Tampa termi- nal. It would appear that Arthur Perry merely testified in order to salvage the contradictory testimony of his two dis- patchers. Moreover, there is no reliable evidence in this record that Frazier was ever specifically scheduled to pull the beer load in question back to Tampa, and efforts by witnesses of the Respondent to establish the same were highly conflicting and misleading, and, in the final analy- sis, Rogers testified that Dispatcher Randy Perry had as- signed the beer load to Robert Way. In fact, Rogers was asked if the Company ever changed trailers or assignments, and he replied that sometimes it is necessary to do so, and then stated, "Well, we have scheduled loads, and we have, like, priority loads. We have to change loads to get the load moving. If one man isn't there on time, another man gets there ahead of him, we can pull that trailer on out with an earlier man." From his testimony and from other indica- tions in the record, it is obvious that the Company is con- tinually changing their plans and drivers as unforeseen cir- cumstances develop, and their entire operations' and system of communications are all geared to these rapidly changing situations. Therefore, even assuming, arguendo, that Frazier had been scheduled to pull the beer load back from Jacksonville and his delay in route prevented him from doing so, this development would not be unforeseen, nor would it be particularly unusual in the overall opera- tions. Furthermore, Frazier did call Dispatcher Rogers from wildwood during the early evening of January 16, and at this time there was no mention of any load to be hauled back or that someone else had been assigned the beer load because of his delay. I have found that the Respondent was motivated by union considerations in the discharge of Fra- zier. No other conclusion will fit the facts and patterns, as I see them. Respondent contends that it did not fire Lacey or fail to dispatch him, but rather that Lacey voluntarily quit in or- der to return to work for F. T. Kelly Company, a former employer. E.R. Bradshaw, the traffic manager, for Kelly Company, testified that on January 10, he called Lacey's home and advised his wife that he had a job opening: On the next evening Lacey called Bradshaw and told him he would let him know on Monday or Tuesday whether he would take the job. Lacey then called him on Tuesday, January 14, and informed Bradshaw he would take the job, but first had to make another run for the Respondent, and also wanted to give the Respondent his notice to quit. Bradshaw said that he could hold up the trip until Thurs- day and Lacey said that he would be able to begin work by that day. Lacey then reported to work on that Thursday and continued to work for F. T. Kelly Company until laid off. On Saturday, January 11, while at the union meeting, Lacey called the terminal on two or three occasions to find out if he would be dispatched on the following week, as previously indicated herein. On Monday he phoned again, WES-FLO CO, INC. 807 but was told that he would be called if a trip or load devel- oped.12 As also indicated earlier herein, various witnesses for the Respondent testified that on both January 13 and 14 they made several telephone calls to Lacey's home but, other than members of his family answering the phone, they were unable to reach Lacey. From the demeanor of the witnesses who testified before me, and from other factors, circumstances, and the sequence of events as enumerated in this record, I reject this testimony, I do not believe that anyone from the Company called Lacey or his home on either January 13 or 14.13 It further appears from this record that Lacey was not put on the dispatch sheet for January 15, and which was made up during the preceding afternoon by Randy Perry. Randy Perry testified he discussed this matter with Person- nel Manager Borders and was told to treat Lacey as having quit. As pointed out, it would therefore appear that on the afternoon of Tuesday, January 14, Respondent decided to remove Lacey from its list of drivers and, in fact, terminat- ed him before receiving any word from Lacey concerning his taking of another job. As detailed earlier herein, Lacey called the terminal on Tuesday evening and spoke to Arthur Perry, and who then told Lacey that Respondent had decided he had probably gone to another job and had his check made up that af- ternoon. On the following morning, January 15, Lacey went to the terminal and picked up his last paycheck. It is clear from this record that the drivers are paid on Friday for the work performed on the week before, and if a driver is fired he will then be, paid on the day of firing, but if he quits he will be paid on the regular Friday payday. Lacey's paycheck is dated January 14, but Perry testified that Lacey asked about his final check in their conversa- tion, and as a result he called his office on the next morn- ing, January 15, and had his wife make out Lacey's pay- check dated the day before. I believe Lacey's testimony to the effect that when he called on Tuesday and asked about his paycheck, he was then informed by Perry that it had already been prepared and was available. As pointed out, this version is supported by the date on the check, and the fact that Lacey had not been marked down for dispatch on January 15. In the final analysis, the credited evidence in this record shows that Lacey was still working for the Re- spondent on the dates material hereto, and had given no indications to the Company that he might be quitting. In fact, as late as Monday morning, January 13, Lacey called the terminal and at this time was available and willing to work. When Lacey called Bradshaw on January 14, and told him he would take the job with F. T. Kelly Company, as aforestated, he again put off his actual starting time by saying he had to make a trip to Jacksonville for his current employer. I agree that this chain of events certainly shows that Lacey was not anxious to return to work for Kelly, but rather was actually holding this job open while waiting to see whether he was still working for the Respondent. How- 12 The dispatch sheet for Monday, January 13, shows that Lacey was "on call" for this date. 13 Lacey's wife gave credited testimony that she was home on all the dates material hereto and would have answered the phone in the absence of her husband. ever, whether Lacey had or had not accepted a job with Kelly Company is of little or no consequence, as the Re- spondent bases its termination of Lacey on their conten- tion that they attempted to call Lacey for hauls, but were unable to get hold of him, and, therefore, were under the assumption he had quit. Moreover, it would appear to me that even if the company dispatchers and others were un- able to directly contact Lacey on January 13 and 14, there would still be insufficient grounds to discharge him. This record shows that quite frequently the dispatchers are un- able to contact drivers who are "on call," and in such situa- tions merely skip over the name and pass down their list to the next driver. This is a rather common practice in the overall operations of the Respondent's business, and under normal circumstances would be no basis for any discharges or for drawing any conclusions that a driver had quit. Based on all of the circumstances and factors outlined above, I find that Lacey was also discharged because of union considerations. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operation of Re- spondent described in section I, above, have a close, inti- mate, and substantial relationship 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 de- signed to effectuate the policies of the Act. A broad cease- and-desist order is warranted in view of Respondent's dis- criminatory conduct and other violations. It has been found that Respondent unlawfully terminat- ed Thomas Green, Frank Frazier, and Vincent Lacey on the dates heretofore indicated, and in accordance therewith it will be recommended that Respondent make them whole for any loss of earnings they may have suffered as a result of the discrimination against them by payment of a sum equal to that which they would normally have earned, ab- sent the discrimination, from the date of the discrimination to the date of Respondent's offer of reinstatement, as indi- cated early herein, with backpay and interest computed in accordance with the Board's established standards.14 It will be further recommended that Respondent preserve and make available to the Board, upon request, all payroll rec- ords, social security payment records, timecards, personnel records and reports, and all other records necessary and useful to determine the amount of backpay and the right to reinstatement under the terms of these recommendations. 14 F. W Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing & Heating Co, 138 NLRB 716 (1962) 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the mean- ing 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 Frank Earl Frazier, Thomas G. Green, and Vincent T. Lacey, thereby discouraging mem- bership in the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By interfering with, restraining, and coercing their employees in the rights guaranteed in Section 7 of the Act, as detailed herein, Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Sec- tion 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 15 The Respondent, Wes-Flo Co., Inc., Tampa, Florida, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in the Union, or any other labor organization of its employees, by discharging employees or otherwise discriminating against them in re- gard to their hire and tenure of employment or any term or condition of employment. (b) Threatening to close its doors if the Union was suc- cessful in organizing. (c) Threatening to write a contract that could result in loss of benefits to employees. (d) Threatening employees with discharge because of their activities on behalf of the Union. (e) Creating the impression of surveillance of union ac- tivities. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self- organization, to form, join, or assist labor organizations, including the above-named organization, to bargain collec- tively through representatives of their own choosing, to en- gage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Make whole Thomas G. Green, Frank Earl Frazier, and Vincent T. Lacey for any loss of earnings they may have suffered by the discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its place of business and terminal in Tampa, Florida, copies of the attached notice marked "Appen- dix." 16 Copies of said notice , on forms provided by the Regional Director of Region 12, after being ,duly signed by Respondent's representative, shall be posted by Respon- dent 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 Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (d) Notify the Regional Director of Region 12, in writ- ing, within 20 days from the date of this Order , what steps have been taken to comply herewith. 15 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, 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. 16 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 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 discriminate in regard to the hire and tenure of employment or any term or condition of employment of our employees because of their membership in and activities on be- half of the Union herein or of any other labor organi- zation of their choice. WE WILL NOT threaten to close our doors in event of the Union. WE WILL NOT threaten to write a contract that could result in the loss of benefits to employees in event of the Union. WE WILL NOT threaten employees with discharge be- cause of their union activities. WE WILL NOT create the impression of surveillance of employees' union activities. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form, join or assist labor orga- nizations, including the Union herein, to bargain col- lectively through a bargaining agent chosen by our employees, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any such activities. WE WILL make whole Thomas G. Green, Frank Earl Frazier, and Vincent T. Lacey for any loss of pay they suffered by reason of our discrimination against them together with interest thereon. WEST-FLO Co., INC.