Buddy L Corp.

National Labor Relations Board - Board Decisions

Apr 25, 1972

196 N.L.R.B. 603 (N.L.R.B. 1972)

BUDDY L CORPORATION
Buddy L Corporation and General Drivers and Help-
ers Local No. 823 , International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers
of America . Case 17-CA-4698
April 25, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On December 20, 1971, Trial Examiner Melvin
Pollack issued the attached Decision in this proceed-
ing. 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 Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings , findings,' and conclusions and to adopt his
recommended Order, as herein modified.
We are in agreement with the Trial Examiner that
Respondent requested an employee to engage in sur-
veillance. We do not believe, however, that the record
supports the Trial Examiner's finding that the Re-
spondent created an impression of surveillance, and
we therefore reverse his finding as to that violation of
Section 8(a)(1).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner and hereby orders that
Respondent, Buddy L Corporation, Neosha, Mis-
souri, its officers, agents, successors , and assigns, shall
take the action set forth in the Trial Examiner's rec-
ommended Order, as herein modified:
1. In paragraph 1(a), delete the words "by creating
an impression of surveillance of union activities."
2. In the attached Appendix marked "Notice to
Employees," delete from the first indented paragraph
the words "create an impression that union activities
are under surveillance."
i The Respondent has excepted to certain credibility findings made by the
Trial Examiner . It is the Board 's established policy not to overrule a Trial
Examiner's resolutions with respect to credibility unless the clear preponder-
ance of all of the relevant evidence convinces us that the resolutions were
incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d
362 (C.A. 3). We have carefully examined the record and find no basis for
reversing his findings.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
603
MELVIN POLLACK, Trial Examiner: This case was heard on
October 27 and 28, 1971, pursuant to charges filed on June
1 and September 1, 1971, and a complaint issued on August
30, 1971, and amended at the hearing. The issues presented
are whether Respondent interfered with, restrained, and
coerced its employees in violation of Section 8(a)(1) of the
National Labor Relations Act, as amended, and whether
Respondent discriminatorily demoted, reduced the driving
schedule of, and discharged driver N. Andy Belisle, in viola-
tion of Section 8(a)(3) and (1) of the Act. The General
Counsel and the Respondent filed briefs after the close of
the hearing.
Upon the entire record,' and my observation of the wit-
nesses as they testified, I make the following:
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
Respondent, a Delaware corporation, manufactures pic-
nic grills, wheeled toys, and juvenile furniture at its plant in
Neosha, Missouri. Its annual interstate purchases and sales
each exceed $50,000. I find that Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The Charging Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Discrimination Against Belisle
Six truckdrivers were employed at the Neosha plant in
November 1970, including Andy Belisle, Jim Charlton,
Tom Gillespie, Dale Ard, Jerry Ard, and Harold Kennedy.
The drivers were paid 10 cents a mile plus $10 for each drop
or pickup. C. J. Charlton, the manager of physical distribu-
tion, told them in November that Respondent planned to
give them a 3-year contract providing for an annual increase
of 1 cent per mile and also new uniforms. He said the 1-cent
increase for the first year would be effective retroactively to
April 1970 and would be paid to the drivers on or before
Christmas 1970 in the form of a bonus. About November
15, the plant management changed and Arvid King suc-
ceeded C. J. Charlton as manager of physical distribution.
Shortly before Christmas, the drivers selected Belisle "to
approach the new management in reference to the contract
and the retroactive pay. ' Belisle spoke to King, who said
Respondent planned to abide by the former management's
orar agreement . The drivers heard nothing about the new
contract at Christmas and at their request Belisle again
spoke to King, who said the new management had no ob-
ligation to abide by any oral contract but that he would sit
down with the drivers during the first week of January and
"work out a contract." The drivers were given new
uniforms , but they heard nothing in January from King
about a new contract.
i The motions of the General Counsel and the Respondent to correct the
record , and the Respondent 's motion to file a second amended answer, are
granted
196 NLRB No. 98
604
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the first week of February 1971, 2 Belisle and Dale
Ard spoke to President Kitts of the Union about representa-
tion of the four drivers then employed by Respondent .3 As
a result of this visit, the four drivers signed "pledge cards"
and the Union on February 9 filed a representation petition
with the Board's Kansas City, Missouri, office.
Early in March 1971, Sales Manager Roy Belk of Jopplin
White Leasing Co. ° told Belisle and Dale Aid that they
would soon be driving new freightliners. When Belisle re-
turned from Joplin, he remarked to the traffic supervisor,
Bill Saddler, that he understood the drivers were getting new
freightliners from Joplin White. Saddler said, "Well, that's
news to me." Belk testified that Belisle questioned him
about the freightliners and that he told Belisle Joplin White
was negotiating with Respondent about the leasing of the
freightliners. He was called by Saddler, who said he should
not talk company business with Belisle.
On March 5, Belisle was called to the office of Personnel
Manager Paul Clemmons. Clemmons, King, and Saddler
were in the office. Belisle was informed that he was being
relieved as a road driver and that he could work either
as an extra road driver or as a yard hostler at $2.57 an hour.5
Belisle elected to work in the yard because it was "steady"
work. At the close of the meeting, Kink told Belisle that any
conversation in the future on his part `in reference to leas-
ing equipment or talking about trucks would be cause for
[his] immediate dismissal ." Belisle asked King if he had
"stretched the truth in any way" about his conversation
with Belk. King said that was "beside the point "6
The yardmen at the Neosha plant use trucks or tractors
to move trailers into or out from the loading dock, make
short trips between Respondent's Neosha warehouses, and
also make local trips.7 Belisle used his large over-the-road
diesel tractor to perform this work, which had been previ-
ously performed with comparatively small gasoline-pow-
ered vehicles.8 He was instructed to load trailers and
boxcars if he had any free time. Driver Kennedy, a senior
employee, requested a transfer to the yard because he need-
ed the work and also wanted to be near his sick wife. On
March 19, he replaced Belisle, who was reassigned to over-
the-road driving.
Respondent employs about 600 production, mainte-
nance, and shipping employees. During the first part of
2 All dates hereafter are in 1971 unless otherwise stated
3 Gillespie and Jim Charlton had left Respondent 's employ.
Belk is employed by Joplin White Motor Co., which serviced
Respondent's trucks.
s Belisle earned about $200 a week as an over-the-road driver.
6 King testified that he warned Belisle not to talk about the leasing of
trucks after he learned from President Gregory of Gregory Motors that
Belisle had told Gregory that King was negotiating with Schweikert of Joplin
White "to have him buy out [Gregory's] lease and replace them with White
freighthners." King at this time was attempting to get a better arrangement
from Gregory , from whom Respondent leased its tractors, and was simulta-
neously negotiating with Joplin White for the lease of freightliners Belisle
testified that he knew nothing about the lease negotiations with Gregory and
that he never spoke to Gregory about the Joplin White negotiations . Belisle's
testimony to the effect that his conversation with Belk led to King 's warning
that he should not talk about the leasing of equipment is consistent with
Belk's testimony. For this reason, and as I consider Belisle a reliable witness,
I credit his testimony that he never spoke to Gregory about the Joplin White
negotiations and that King never reprimanded him for talking to Gregory
Belisle and Kennedy testified that this work had been performed on the
day shift by two men. Traffic Supervisor Saddler and Manager of Plant
Distribution King testified that Belisle took over the yardwork from a single
driver.
8 According to King , the diesel tractor was not being used at this time "in
the long-haul operation," and as Belisle unlike his predecessor was skilled in
its handling , Respondent was able to effect a saving by returning leased
1971, the Oil , Chemical asv ktomic Workers Union con-
ducted an organizing campaign among these employees.
The Teamsters also sought to organize these employees and
intervened in a representation proceeding initiated by an
Oil Workers' petition filed on July 1, 1971.
During March and Appril, Belisle passed out Teamsters
authorization cards in the plant and obtained about 20
signed cards . He also arranged "house group meetings" at
which additional cards were signed . In early April, Traffic
Supervisor Saddler told Belisle that the plant was "off lim-
its except to employees "specifically called in to go to
work," and that, if called into the plant, Belisle was not to
stop in the plant but was to go "straight back to shipping."
Belisle asked Saddler the reason for the "new policy. Sad-
dler replied , "Andy, you know exactly why the new policy
is existing now.... I don't want any more trouble ... Mr.
King has been on my back ." 10 King testified that while
Belisle was working as a yardman , Cook complained to him
"that Andy was not making himself available at all times,
that he would come in, that he would spot a trailer at the
door, and he would disappear into the cafeteria or some
other location in the plant " Cook testified that he sent a
memorandum to Saddler on March 13, complaining that
Belisle "appears to be reluctant to meet the requirements my
schedule demands ." He further testified that on 8 to 10
occasions he found Belisle talking to groups of shipping
employees during working time.
On March 15 , Supervisor Dan Abernathy sent a memo-
randum to Saddler complaining that Belisle "seems to be
reluctant at times to let us know where he will be."
According to Saddler, after receiving these memoranda,
he informed Belisle "it was against company policy to be in
areas other than your own during working time . If [the
drivers] were on their trucks , they could go to the cafeteria
and back and get coffee and that was it."
I find from the foregoing that Respondent was aware of
Belisle's organizing activity and that it restricted Belisle
from entering the plant except to go to the cafeteria.
In mid-April, Kin$ told Belisle that he hoped to rectify
the lack of communication between the drivers and man-
agement . He said the Company could not stand the contract
package the Union was trying to shove down its throat, but
that if the Union were to lose the election scheduled for
April 30, there would be no hard feelings and the Company
would sit down with Belisle as driver representative or with
all the drivers and "hammer out a good , solid contract."
Belisle replied that he was just a driver representative with-
out any authority to tell the drivers how to vote but that he
would "pass this information on to the drivers.""
About a week before the April 30 election , Belisle told
Dale Ard that King said Respondent would give the drivers
"a raise and pretty much everything we asked for" if the
drivers "would back off from the Union." A day or two
later, King called Ard to his office and showed him a letter
stating that in the meeting between King and Belisle, no
promises were made to defeat the Union . King subsequent-
ly told Aid that there could be no discussion 'on contracts
or new equipment or anything with the drivers until after
the union election when we get things straightened out," but
equipment which had been used to perform the yardwork.
Before this time , the drivers had "free access" to the production employ-
ees.
10 Shipping Department Foreman Norwood Cook told David Faust, a
leadman in the shipping department , that Belisle was to speak only to the
foremen and the leadmen in the shipping and receiving department. He did
not tell Faust why Belisle was being restricted.
111 do not credit King's testimony , denied by Belisle , that Belisle said he
might "get the whole election withdrawn" if King would negotiate the "wage
and salary aspect" of the Union 's contract with him.
BUDDY L CORPORATION
that after the election the drivers could meet with the com-
pany officials and try to work out their grievances.
On the afternoon of April 29, Traffic Supervisor Saddler
called Belisle at his home and asked him to come to the
plant, saying that it was "imperative" to speak to him. Upon
Belisle's arrival at the plant, Saddler took him to King's
office. King, in the presence of Saddler and Personnel Man-
ager Paul Clemmons, said they were not trying to sway his
vote "one way or the other" but that the drivers "were
indeed going to get new freightliners." Clemmons remarked
that the company had a 30-day option on the freightliners.
Belisle told Clemnions he had been warned by Xing on
penalty of discharge not to discuss "the lease agreement or
freightliners or anything else." Clemmons replied, "Well,
that s in the past.'
The Union won the April 30 election. A week later, Presi-
dent Walt Schweikert of Joplin White Motor Company re-
marked to Belisle and Dale Ard, "I hear you boys voted
yourselves into the Union and voted yourselves out for new
freightliners." A few days later, Sales Manager Belk of Jop-
lin White advised Belisle and Ard to look for other jobs
because Respondent was going to bring in owner-operators.
On May 13, driver Kennedy informed Belisle that a re-
frigerated unit had picked up a load of grills and toys at the
plant. This information was confirmed by leadman David
Faust, who told Belisle "the owner-operator just came in
here with a reefer and picked up a load for Chicago." Belisle
asked Traffic Manager Robert Williams in his office "why
he had utilized an owner-operator to haul company freight
when we had a driver [Jerry Ard] who had been sitting at
home for approximately 2 weeks without any income." Wil-
liams retorted that it was none of his business and walked
out of the office.12 A few minutes later , King entered the
office and said, "Andy, I understand you have a problem."
Belisle replied that they both had a problem and that the
Company had "never utilized owner-operators in here." He
asked King why the Company had not called Ard "for the
run." King said that neither the Union nor anyone else was
going to tell him how to ship the Company's freight. Belisle
said he was not talking to him as a representative of the
Union but that he was "here in the capacity of the drivers'
representative. Now, we've got a company driver who hasn't
worked in 2 weeks, and you're bringing in an owner-opera-
tor." King at this point walked out of the office.
A little later, King approached Belisle and said he had
"calmed down" and perhaps he had been "a little premature
in assuming that Behsle was union motivated [in] making an
issue out of an owner-operator ." Belisle said that the Union
had nothing to do with it, and that he "just didn't feel as
though [he]could just stand there and let owner-operators
run in and around our drivers without at least saying some-
thing." King explained that he had not been able to reach
Jerry Ard and had called in the owner-operator because no
other driver was available.13
12 Williams testified that he told Behsle he "could use any type of carrier
that [he] wished to." He claimed that Belisle said if Respondent continued
to use owner-operators, he would close the plant down the next day or even
that night. Belisle denied that he made such threats . I credit Belisle.
17 King testified that a leadman told him that "Andy was in the office
making quite a scene." King walked into the office and asked Behsle "If he
had a problem ." Belisle said , "Yes, I think we both have a problem." King
said that Belisle was talking to people who "had no authority to make a
change," that Belisle "would do well to keep his mouth shut while he was in
this area," and that Belisle was "perfectly welcome" to talk to him at any
time. Belisle complained that the Company was not using its trucks properly
and could get "greater utilization" out of its equipment . King said "that was
not a discussion for that time and place" and told Belisle "to keep his mouth
shut." Later that day , they had "a more casual conversation " during which
Belisle said he would take any steps necessary to curtail Respondent 's use of
605
The next day, Traffic Supervisor Saddler, with King's
approval, sent Belisle the following letter:
This letter is to inform you that we cannot and will not
tolerate any further outbursts of insolence and criti-
cism toward the management of Buddy L such as that
displayed by yourself on May 13, 1971. We have not
and do not intend to relinquish managerial responsibil-
ity to you now or in the future.
I am therefore, by way of this letter, advising you that
one more display of disrespect to the management of
this company will result in your discharge.
According to King, Belisle complained that Saddler was
not his supervisor and had no right to "instruct" him. King
said that Saddler was his "superior" and Belisle replied to
the effect that nobody was superior to him. I credit Belisle's
testimony that he did not make such a statement.
On May 20, Belisle told Manager King that he "was
contemplating filing unfair labor practice charges with the
National Labor Relations Board because of the tact that my
miles were down, my runs were down, and they were utiliz-
ing a common carrier to an extent like they had never
utilized them before." King checked the shipping records
and agreed that Belisle's "miles were way down from all the
other drivers." He said "things in his woods were slow" and
he would be glad to give Belisle a good reference if he felt
he could better himself with another company. Belisle "de-
clined the offer." He said he had been told by Union Presi-
dent Kitts that King had said that Respondent was
"definitely getting new freightliners," and added that the
drivers and management were "so far apart" because
Schweikert of Joplin White had told Belisle and Dale Ard
that tin voting the Union in they had voted the freightliners
out. g called Schweikert and said, "I understand you
told the drivers that by voting in the union, they were voting
out those new tractors." King invited Belisle to hear
Schweikert's denial on an extension line, but Belisle refused,
saying "What do you think that Mr. Schweikert would say?"
Belisle called Schweikert later that day and said he was
"sorry" he had put Schweikert "in an uncomfortable posi-
tion.' He explained that Union President Kitts "has assured
us that we were getting new tractors, and you said we
weren't." Schweikert agreed he had been put in an uncom-
fortable position, but said, "Andy, just let it go, and in a few
days this thing will blow over ... you realize that I'm doing
business with those people, and I had no choice but to deny
the conversation."
King testified that Belisle again asked that he be named
spokesman for the drivers and said he had "certain informa-
tion on [King's] truck deal, which if known to "certain
parties would have the effect of blowing up the whole nego-
tiations." King asked him "specifically what it was ." Belisle
said Schweikert had told him Respondent was "attempting
to get out of the truck business' and that the Teamsters
winning the April 30 election "had just cheated him out of
a quarter of a million dollars of sales." King called Schwei-
kert who denied making any such statements. Schweikert
called King "real late in the evening," and said Belisle had
told him that he had "made those statements [because] he
had hoped to place the Union in a much more favorable
position of negotiating the forthcoming contract." King
asked Schweikert "if he would be willing to put this observa-
tion in writing." Schweikert agreed to do so. On May 25,
King received the following letter from Schweikert:
Several days ago I had conversation with Andy Belisle
and Dale Ard at which time I told these two men that
owner-operators and, if necessary, would close down the plant King replied
that Respondent was "paying the bill " and would provide its customers with
service in "the cheapest and most econonucal way."
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union negotiations with the Buddy L Corporation
would not affect our negotiations with Buddy L with
reference to leasing several heavy duty trucks. I made
no statement to the effect that union negotiations be-
tween Buddy L Corporation and the Teamsters Union
would cause us to lose the lease contract. Mr. Belisle
stated that if Buddy L were forced to sign a union
contract that Buddy L would probably consider going
out of the trucking business.
On May 20, Mr. Belisle called me on the phone and
admitted that he himself had made the above state-
ments and admitted that he had told the officials of the
Buddy L Corporation that I made these statements and
that his reason for lying about this was to put the Union
in a better bargainingg position.
Schweikert denied that he told Belisle and Ard that the
Union's winning the election had caused Respondent to
change his mind about leasing freightliners from Joplin
White. He denied making any such statements when called
by King. He later told King that Belisle had called him and
said he had attributed such statements to Schweikert be-
cause he "wanted the Union in a better bargaining position
with Buddy L." He agreed to write a letter to King to this
effect. King came to his office with a stenographer. Schwei-
kert prepared the letter which was then typed by King's
stenographer. 14
On May 25, about 9 p.m., Belisle returned a call from
King. Belisle asked King why he had tried to contact him.
King said, "Well, Andy, I just simply wanted to let you
know that you are being terminated effective immediateyly."
Belisle asked King why he was being terminated. King an-
swered it was in regard to Belisle 's conversations with-Belk
and Schweikert. Belisle asked him if that was the only rea-
son and King said, "No, it also referred back to your warn-
ing letter of the 14th of May."
On May 26, 1971, King sent Belisle the following letter:
This letter is to inform you that your services with the
Buddy L Corporation are being terminated effective
immediately.
This termination is due to your insubordination and
attempted intimidation of management, and interfer-
ence with the Company' s business.
Union President Kitts subsequently advised King that
there would be no bargaining negotiations until Belisle's
discharge was "resolved."
B. Interference, Restraint, and Coercion
As previously stated, the Oil Workers and the Union
during the first part of 1971 conducted organizing cam
paigns among Respondent's plant employees. In early Feb-
ruary, King asked shipping department leadman Faust if he
"knew of anyone ushing the Union." Faust said he did not
and King asked Faust to let him know if he heard of anyone
"doing work for the Union." Also in February, the shipping
department foreman, Norwood Cook, asked Faust if heknew
who was passing out union cards. Faust said "no."
Cook commented that "the people would be crazy to vote
for the Union at this time ...-because the company couldn't
afford it, and it probably would have to pull out . . . ." In
May or June, at a time when the Union was handing out
pamphlets for a meeting, Cook again told Faust that the
employees would be "crazy" to vote for the Union because
the Companycould not afford it and would have to pull out.
In March, Foreman Cook asked Lee Roy Adams, a ship-
14 Schweikert testified that as of the time of the hearing he was still nego-
tiating with Respondent about the leasing of trucks.
ping department employee, if the truckdrivers "were push-
in the Union" in the shipping and receiving department.
Adams said "a few people were interested." In another con-
versation that month, Cook asked Adams if he knew what
would happen if the Union came in ." Adams said, "No,
what?" Cook said they would close the place down. Adams
said he "didn't think this would happen." Cook said "yes,
it would," that the company did it in East Moline.
A few days before Belisle's discharge on May 25, Cook
asked Adams "who was pushing the Union." Adams said he
thought Dave Faust "was playing both sides of the fence."
Cook said he "didn't think so ' and asked Adams if Belisle
was pushing the Union. Adams said he could not "obligate"
himself. Cook then asked if Otis Gorham was pushing the
Union. Adams said he "couldn't say."
C. Analysis and Conclusions
1. The discrimination against Belisle
a. The demotion
The General Counsel contends that Belisle was demoted
to yardwork on March 5 in reprisal for his union and con-
certed activities. Belisle had been the drivers' spokesman in
their efforts to obtain a pay increase. When these efforts
appeared unavailing, they turned to the Union, which filed
a representation petition on February 9. Belisle was notified
on March 5 that he was being relieved as a regular road
driver but could work either as an extra road driver or in the
yard. He accepted the lower paid yardwork because it was
steady" work. As a yard "hostler,' he was assigned to work
allegedly previously performed by two men. He was also
instructed to do loading work when he was not otherwise
occupied. No over-the-road driver had been previously as-
signed to yardwork. The over-the-road diesel tractor used
by Belisle in the yard was much larger than the gasoline
powered equipment used by his predecessors.
King testified that Belisle was offered work as a yard
driver because "the activity for the drivers was quite low,"
Belisle had the least seniority, and there was a vacancy in
the yard. Belisle himself testified that he took the yard job
because it was "steady." He was replaced as yardman on
March 19 by Kennedy, who exercised his seniority because,
as he testified, "I didn't have anything to do ... I needed
the work." It does not appear that Belisle or Kennedy found
the yardwork onerous.I find that Respondent did not dis-
criminatorily demote Belisle on March 5 as alleged in the
complaint.
b. The reduced driving schedule
The General Counsel contends that Respondent, on or
about April 1, reduced Belisle's driving schedule and used
common carriers to perform this work . Belisle worked about
12 days in April and from 10 to 14 days in May. Shipping
clerk Harney, a nonsupervisory employee, told Behslie in
mid-April that Respondent was making shipments by
common carrier that "should have gone by our company
trucks." Shipping department leadman Faust estimated that
shipments by company truck dropped from 30-35 percent
before the April 30 election to5 percent aftertheelection.15On
May 20, Belisle complained to King that his miles were down
because Respondent had increased shipments by common
carrier. King checked the shipping records and agreed that
Belisle's `miles were way down from all the
15 Shipping Department Foreman Cook testified that shipments were 90
percent by common carver before and after the election.
BUDDY L CORPORATION
other drivers." He said things were "slow" and offered Beli-
sle a good reference if he wanted to look for work elsewhere.
King testified that the phasing out of a St. Louis ware-
house between January and May, the elimination of St.
Louis as a major distribution center, and the increase of
direct shipments from plant to customer, reduced the work
of the drivers. Kennedy exercised his seniority in March to
replace Belisle as a yard driver because he had nothing to
do and needed the work. On May 13, Belisle complained
that Traffic Manager Williams had used an owner-operator
when Jerry Ard had been without work for about 2 weeks.
It thus appears that all the drivers, and not Belisle alone,
were suffering from lack of work between March and May.
The General Counsel attributes this lack of work to a dis-
criminatory assignment of the drivers' work to common
carriers. The testimony on this point is inconclusive and the
General Counsel made no effort to subpena Respondent's
records to determine whether or not Respondent assigned
shipments to common carriers which ordinarily would have
been assigned to its drivers. I find that the General Counsel
has not established by a preponderance of the evidence that
Respondent discriminatorily reduced Belisle's driving
schedule.
c. The discharge
Belisle was the drivers' spokesman in their unsuccessful
efforts to obtain a pay increase. The drivers thereafter
signed union cards and Respondent was apprised of the
drivers' interest in the Union when the Union filed a repre-
sentation petition on February 9. Belisle solicited plant em-
ployees to join the Union in March and April. As found
below, Respondent unlawfully interfered with his organiz-
ing activities by restricting his access to the plant. The elec-
tion on the Union's petition to represent the drivers was
scheduled for April 30. In mid-April King told Belisle if the
Union lost the election, Respondent would sit down with
him as the drivers' representative or with all the drivers and
"hammer out a good, solid contract." The day before the
election, King told Belisle that the drivers were going to get
new freightliners. The drivers voted for the Union at the
April 30 election. On May 13, Belisle vigorously complained
to King and Traffic Manager Williams about Respondent's
use of an owner-operator to haul company freight. The next
da , he was warned that Respondent "cannot and will not
tolerate any further outbursts of insolence and criticism
toward the management." On May 20, Belisle told King he
was considering fling unfair labor practice charges because
his "runs were down" and Respondent was making more
use of common carriers than ever before. He remarked that
the drivers and management were "so far apart" because
Mr. Schweikert of Joplin White had told him and Dale Ard
that by voting the Union in they had voted the freightliners
out. King immediately called Schweikert, who denied mak-
ing such statement. On May 25, King told Belisle that he
was discharged because of his conversations concerning
truck negotiations with Belk and Schweikert and also be-
cause of the May 14 warning he had received.
King testified that he discharged Belisle for interfering
with truck negotiations by telling Gregory that Respondent
was negotiating with Joplin White; for falsely attributing a
statement to Schweikert of Joplin White that the employees
had caused him to lose $150,000 by voting in the Union; by
attempting to use the Union as a club to gain personal
advantage; and because he was reluctant to perform his
assigned duties when he worked as a yard hostler in March.
As to the Gregory incident, King testified, "Andy came
in and made mention to one of the supervisors in the plant
that he had heard that I was negotiating with White, and at
607
that time I confronted Andy with this and told Andy that
I felt he was out of line, it was none of his business, and that
it could have a detrimental effect on the negotiations for
these trucks, and at a later date I believe one of the supervi-
sors put that into writing." Belisle credibly testified that he
did not tell Gregory that Respondent was negotiating with
Joplin White and that the foregoing incident occurred on
March 5, in King's office, in the presence of Saddler and
Clemmons, and that it related to Belk's remark to Belisle
and Ard that they would be driving new freightliners. In
these circumstances, I do not credit King's testimony that
he reprimanded Belisle for telling Gregory about the Joplin
White negotiations.
I have no doubt that Schweikert made the remark attrib-
uted to him by Belisle and Dale Ard, but that in calling
Schweikert, King fully anticipated that Schweikert would
deny making any such statement. Belisle called Schweikert
to apologize for putting him in an uncomfortable position
and Schweikert told him to let the incident "blow over,"
saying that he was doing business with Respondent and
"had no choice but to deny the conversation." In these
circumstances, I discredit the testimony of Schweikert and
King to the effect that Schweikert reported to King that
Belisle admitted that he had made the statements he had
attributed to Schweikert.
I consider wholly incredible King's testimony that Belisle
offered to "withdraw the pending election of the Teamsters"
if King named him "manager" for the truck operation, and
that Belisle shortly before his discharge offered to get con-
cessions if King named him "spokesman" for the drivers,
and threatened to blow up the truck negotiations if this was
not done. Belisle's conduct in seeking a pay increase for all
the drivers, and in complaining about Respondent's use of
an owner-operator while Jerry Ard was without work, ne-
gates any inference that he sought to use the Union as a club
to gain personal advantage.
While Belisle may have wandered into the plant while he
worked in the yard, thus leading Supervisors Cook and
Abernathy to complain that he was not around when need-
ed, these complaints were made in mid-March. It does not
appear that Belisle's performance as an over-the-road driver
was in any way unsatisfactory.
Under all the circumstances, including Belisle's activities
in behalf of the Union, Respondent' s promises to lease new
equipment and negotiate a contract with him as the drivers'
representative if the Union lost the election, Belisle's com-
plaint about Respondent's use of an owner-operator while
a driver was without work, and the unconvincing explana-
tion proffered by Kin 3, for his discharge, I find that Respon-
dent dischargedyBelisle on May 25, 1971, for his union and
concerted activities, in violation of Section 8(a)(3) and (1)
of the Act.
2. Interference, restraint, and coercion
I have found above: (1) King and Shipping Department
Foreman Cook questioned leadman David Faust about em-
ployee union activity; King asked Faust to let him know
about anyone who was working for the Union; and Cook
told Faust that the Company would probably close the Neo-
sha plant if the employees voted for the Union. (2) Cook
questioned shipping department employee Lee Roy Adams
about employee union activity, naming Belisle and Otis
Gorham, and told Adams that the Company would shut the
plant down if the Union came in . (3) King told Belisle that
the Company would meet with Belisle or all the drivers and
work out a good contract if the Union lost the April 30
election . He also told Dale Ard that the Company would
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meet with the drivers after the election to work out their
grievances . (4) Respondent interfered with Belisle 's solicita-
tion of the plant employees by denying him access to the
plant during nonworking time.
I find from the foregoing that Respondent violated Sec-
tion 8(a)(1) of the Act by coercive interrogation , requesting
an employee to engage in surveillance, creating an impres-
sion o surveillance, threats of economic reprisal , promi-
ses of benefit, and an unlawful limitation on union solicita-
tion.16
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interfering with , restraining, and coercing employ-
ees in the exercise of rights guaranteed in Section 7 of the
Act, Respondent has engagede in unfair labor practices in,
violation of Section 8(a)(1) of the Act.
4. By discharging N. Andy Belisle on May 25 , 1971, Re-
sppondent has engaged in unfair labor practices in violation
of Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2 (6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices it will be recommended that Respondent
cease and desist therefrom and take certain affirmative ac-
tion to effectuate the policies of the Act.
It having been found that Respondent discriminatorily
discharged N. Andy Belisle in violation of Section 8(a)(3)
and (1) of the Act, the recommended Order will provide that
Respondent make him whole for loss of earnings from the
time of the discharge until the date of reinstatement or offer
of reinstatement . Backpay shall be computed in accord with
F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing
& Heating Co., 138 NLRB 716.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the folrowing recommended:17
ORDER
Respondent, Buddy L. Corporation, its officers, agents,
successors , and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing employees in
the exercise of their right to self-organization, by threats of
discharge or other reprisals, by promises of economic bene-
fits, by coercively interrogating employees as to union activ-
ities or sentiments , by requesting employees to engage in
surveillance of union activities, by creating an impression of
surveillance or union activities, and by prohibiting employ-
ees from engaging in union solicitation during nonworking
time.
(b) Discharging or otherwise discriminating against em-
ployees in regard to hire or tenure of employment, or any
term or condition of employment, in order to discourage
membership in any labor organization.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which it is found
will effectuate the policies of the Act:
(a) Make N. Andy Belisle whole for any loss of pay suf-
fered by reason of the discrimination against him, in the
manner described in the Remedy section of the Trial
Examiner's Decision.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(c) Post at its Neosha, Missouri, plant copies of the at-
tached notice marked "Appendix.""' Copies of said notice,
on forms provided by the Regional Director for Region 17,
after being duly signed by Respondent's authorized repre-
sentative, shall be posted by it 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 Respondent to ensure that said no-
tices are not altered, defaced, or covered by any other mate-
rial.
(d) Notify the Regional Director for Region 17, in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.19
IT IS FURTHER ORDERED that the allegations of the complaint
not specifically found herein to constitute violations of the
Act be dismissed.
16 Respondent's contention that its coercive conduct consisted of "isolat-
ed" incidents is without merit . Daniel Construction Company, Inc. v. N. LR.B.,
341 F 2d 805, 814 (C.A. 4), cert . denied 382 U.S. 831.
17 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.
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 Courts of Appeals
Enforcing an Order of the National Labor Relations Board."
19 In the event that this recommended Order is adopted by the Board after
exceptions have been filed , this provision shall be modified to read : "Notify
the Regional Director for Region 17, in writing, within 20 days from the date
of this Order, what steps the Respondent had taken to comply herewith."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency Of The United States Government
WE WILL NOT threaten our employees with discharge
because of their union activities, promise them eco-
nomic benefits to discourage support of any labor or-
ganization, coercively interrogate them as to their
union activities or sentiments , request employees to
report union activities , create an impression that union
activities are under surveillance, or prohibit employees
from engaging in union solicitation during nonworking
time.
WE WILL NOT discharge or otherwise discriminate
against our employees in regard to hire or tenure of
employment, or any term or condition of employment,
in order to discourage membership in any labor organi-
zation.
BUDDY L CORPORATION
WE WILL make N. Andy Belisle whole for any loss of
pay suffered by reason of the discrimination against
him.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of their
n t to self-organization, to form, join, or assist Gener-
al Drivers and Helpers Local No. 823, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or any other labor organ-
ization, to bargain collectively through representatives
of their own choosing , or to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any
or all such activities.
WE WILL reinstate N. Andy Belisle to his former job
or, if such job is no longer available, to a substantially
equivalent position, without prejudice to his seniority
or other rights and privileges of employment.
BUDDY L CORPORATION
(Employer)
Dated By
609
(Representative) (Title)
WE WILL notify the above-named em loyee, if presently
serving in the Armed Forces of the United States, of his
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge from
the Armed Forces.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, 610 Federal Building, 601 East
12th Street, Kansas City, Mo. 64106, Telephone 816-374-
5181.