Hochstetler & Sons, Inc.

National Labor Relations Board - Board Decisions

May 24, 1976

224 N.L.R.B. 39 (N.L.R.B. 1976)

HOCHSTETLER & SONS
Hochstetler & Sons , Inc and Chauffeurs, Teamsters,
and Helpers Local Union 414 , a/w International
Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America . Case 25-CA-7128
May 24, 1976
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
On December 2, 1975, Administrative Law Judge
Ivar H Peterson issued the attached Decision in this
proceeding Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel filed a
brief in support of the Administrative Law Judge's
Decision
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 briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge only to
the extent consistent herewith
Respondent is engaged in the business of storing
and transporting grain, fertilizer, and gravel by truck
It employs 12 drivers, of whom 6 are over-the-road
drivers making long-distance hauls, and 6 are yard-
men who make local deliveries and pickups The
present proceeding involves only the over-the-road
drivers
On March 7, 1975,2 the six over-the-road drivers
signed authorization cards on behalf of the Union
On March 10, the Union wrote Respondent request-
ing recognition On March 13, the Union filed a rep-
resentation petition with the Board requesting an
election in a unit of over-the-road drivers On May
30, an election was held which the Union won On
June 19, it was certified as bargaining representative
of the unit employees
We find that Respondent interfered with, coerced,
and restrained employees in violation of Section
8(a)(1) by the following conduct engaged in after re-
ceiving the Union's request for recognition
' 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
examined the record and find no basis for reversing his findings
2 All dates mentioned hereinafter are in 1975
39
I On March 15, Respondent's president, Hoch-
stetler, held a meeting in which he told the drivers,
in substance, that he was thinking of turning
Respondent's hauling business over to owner-opera-
tors thereby eliminating any need for the services of
the drivers In the context of the commenced union
activity and subsequent unlawful conduct, we find
that this statement constituted a threat of reprisal
2 On March 22, Hochstetler held another meeting
with the drivers at which he "asked them what I had
done wrong that they want someone else for their
boss " He also suggested to the drivers that they join
the Union individually, but apparently make no de-
mand upon Respondent
3 On May 28, two days before the election, Re-
spondent held a meeting of the drivers which was
addressed by Ray Blankenship, its attorney Accord-
ing to the credited testimony, Blankenship told the
drivers what would happen if the Union got in and
how much more it would cost the Respondent He
further stated that in the past Respondent had made
work for the employees, but if theyjoined the Union
there "would be no work made for us, but they
would protect the yard help "
We further find that by the following conduct Re-
spondent discriminated against employees in viola-
tion of Section 8(a)(3) and (1)
1 Over-the-road drivers were customarily paid a
bonus if they kept their trucks serviced properly and
kept proper records of their hauls According to the
credited testimony of employee Cripe, this bonus was
withheld from the drivers for the week ending March
22, following the Union's organizing activity No ex-
planation for this action suggests itself except that it
was taken in retaliation for the employees' union ac-
tivity
2 Prior to the election, it was customary for the
drivers to service their own trucks, thereby increasing
their earnings On election day, May 30, Hochstetler
refused to allow employee Cripe to service his truck
saying, "No, you guys are damn union now You
ain't going to service your trucks no more " Thereaf-
ter, the yard help serviced the trucks When Cripe
asked Hochstetler why he was not allowed to service
his truck, Hochstetler replied, "You guys are going to
pay for it You brought it on yourself "
3 After the election, the over-the-road drivers re-
ceived fewer long-distance hauling assignments so
that their earnings dropped substantially Mean-
while, the yardmen were assigned long-distance
hauls Thus, the nonunion yardmen benefited at the
expense of the unionized over-the-road drivers The
Administrative Law Judge rejected the economic de-
fense of Respondent and found that the drop in
earnings of the over-the-road drivers was the result of
224 NLRB No 7
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
retaliation directed at them because of their organiz-
ing activities We agree 3
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 3
of the Administrative Law Judge
"3 By taking away the over-the-road drivers'
earned bonuses for the week of March 22, 1975, by
refusing to allow its drivers to perform service work
on vehicles driven by them, and by curtailing the
assignments of over-the-road drivers to long-distance
hauls, the Respondent violated Section 8(a)(3) and
(1) of the Act "
THE REMEDY
It having been found that the Respondent has en-
gaged in unfair labor practices, it will be ordered that
it cease and desist therefrom and take certain affir-
mative action designed to effectuate the policies of
the Act
Inasmuch as it has been found that the Respon-
dent discriminatorily deprived its over-the-road driv-
ers of long-distance runs and earned bonuses, we
shall order that they be offered such assignments and
bonuses on a nondiscriminatory basis and, in addi-
tion, be made whole for any loss of wages and bonus-
es suffered by reason of the Respondent's unlawful
conduct in accordance with the Board's formula set
forth in F W Woolworth Company, 90 NLRB 289
(1950), with interest thereon at the rate of 6 percent
per annum as set forth in Isis Plumbing & Heating
Co, 138 NLRB 716 (1962)
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Hochstetler & Sons, Inc, Topeka, Indiana, its offi-
cers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Making threats to its over-the-road drivers and
questioning them concerning their activities on be-
half of the Union, Chauffeurs, Teamsters, and Help-
ers Local Union 414, a/w International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America
(b) Discriminating against any of its over-the-road
drivers in the assignment of long-distance hauls, in
the payment to them of earned bonuses, in the per-
formance of service work on vehicles driven by them,
or in any other manner with regard to any term or
condition of employment
(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights under Section 7 of the Act
2 Take the following affirmative action which is
deemed necessary to effectuate the policies of the
Act
(a) Offer its over-the-road drivers long-distance
hauls and earned bonuses on a nondiscriminatory
basis
(b) Make its over-the-road drivers whole for any
loss of earnings and bonuses they may have suffered
by reason of Respondent's unlawful discrimination
against them in the manner set forth in the section of
this Decision entitled "The Remedy "
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amounts of
backpay due under the terms of this Order
(d) Post at its offices and place of business in
Topeka, Indiana, copies of the attached notice
marked "Appendix " 4 Copies of said notice, on
forms provided by the Regional Director for Region
25, after being duly signed by Respondent's repre-
sentative, shall be posted by it immediately upon re-
ceipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material
(e) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges violations
of the Act not specifically found herein
3 The complaint alleges that on or about April 1 and 2 Respondent pro-
vided driver John Troyer with less employment than he normally would
have received because of his union activity in violation of Sec 8(a)(3) Troy-
er did not testify The only testimony as to Troyer was offered by Hochstet-
ler who denied that any discrimination had been practiced against Troyer
The General Counsel apparently argued that Respondent was required to
prove by its business records that Troyer was not discriminated against The
Administrative Law Judge , through inadvertence, failed to make any find-
ing as to whether Respondent had discriminated against Troyer We shall
dismiss this allegation of the complaint The General Counsel has the bur-
den of proving a prima facie case of discrimination, but has not done so
here The mere allegation of a violation is not proof and cannot serve to
shift the burden to a respondent to introduce any evidence
4In the event that this 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 "
HOCHSTETLER & SONS 41
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT make threats to and question
our over-the-road drivers concerning their activ-
ities on behalf of the Union
WE WILL NOT discriminate against any of our
over-the-road drivers in the assignment of long-
distance hauls, the payment of earned bonuses,
and the servicing of trucks or otherwise discrimi-
nate against any employee because of member-
ship in or activity on behalf of Chauffeurs,
Teamsters, and Helpers Local Union 414, a/w
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
or for engaging in protected union activity or
exercising rights guaranteed by the National La-
bor Relations Act
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Sec-
tion 7 of the Act
WE WILL offer our over-the-road drivers long-
haul assignments, earned bonuses and truck ser-
vicing on a nondiscriminatory basis and WE
WILL make them whole for any wages and
earned bonuses lost as a result of our discrimi-
nation against them
HOCHSTETLER & SONS, INC
DECISION
STATEMENT OF THE CASE
reprisals if they became union members or gave the Union
any assistance, on or about May 28, threatened employees
with less hours of employment, discharge, or other reprisals
on account of their union membership or assistance to the
Union, commencing on or about May 30, provided its
over-the-road drivers with less employment than they nor-
mally would have received and refused to allow employees
to perform service work on Respondent's trucks and
changed the locks on the doors in order to prevent employ-
ees from performing such work, and, on or about April 1
and 2, provided employee John Troyer with less employ-
ment than he normally would have received By the fore-
going conduct, the complaint alleged that the Respondent
engaged in unfair labor practices affecting commerce with-
in the meaning of Sections 8(a)(3) and (1) and 2(6) and (7)
of the Act In its answer, dated July 21, the Respondent
admitted the jurisdictional allegations as well as the status
of the Union as a labor organization, but denied thai it had
engaged in any unfair labor practices
Upon the entire record in the case, including consider-
ation of the briefs filed with me by counsel for the General
Counsel and counsel for the Respondent on November 5,
and my observation of the demeanor of the witnesses as
they testified, I make the following
FINDINGS OF FACT
i JURISDICTION
The Respondent, an Indiana corporation, has at all ma-
terial times maintained its principal office and place of
business in Topeka, Indiana, where it is engaged in storing
and the interstate transportation by motor vehicle of grain,
fertilizer, and gravel, and the custom application of fertiliz-
er It is admitted and I find that the Respondent is engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act and comes within the Board's jurisdictional stan-
dards It is further admitted that the Union is a labor orga-
nization within the meaning of Section 2(5) of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
IVAR H PETERSON, Administrative Law Judge The hear-
ing in this case was held in Kendallville and Fort Wayne,
Indiana, on September 22 and 30 and October 1, 1975,
based on the complaint issued by the Acting Regional Di-
rector for Region 25 on July 16, which in turn was based
on the charge filed on June 6 by Chauffeurs, Teamsters,
and Helpers Local Union 414, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Union Briefly
stated, the complaint alleged that since on or about De-
cember 7, 1974, the Respondent, Hochstetler & Sons, Inc,
interfered with, restrained, and coerced its employees by
questioning them concerning their own and other employ-
ees' union membership, activities, and desires by William
Hochstetler, president of the Respondent, warning its em-
ployees that it would close its facility if they did not refrain
from becoming or remaining members of the Union or giv-
ing it any assistance or support, on various dates threat-
ened its employees with subcontracting, discharge, or other
A Introduction
Early in March, Richard Cripe, one of Respondent's
truckdrivers, went to the Union's hall in Fort Wayne and
secured a supply of authorization cards On March 7, Cripe
and five other drivers signed authorization cards which
Cripe took to the union hall and gave to Business Agent
Robert Warnock Sometime between March 10 and 16,
President Hochstetler received a letter from the Union re-
questing that it be recognized as the bargaining agent for
the truckdrivers Within a week, Hochstetler had a meeting
with the six drivers who had signed cards Of the total of 12
drivers, the 6 with whom he met were the men who ran
long hauls and who were paid on a percentage basis On
March 13, the Union filed a petition requesting that it be
designated as the exclusive representative of the truck-
drivers On March 22, Hochstetler met with the six driv-
ers, after receiving the Union's letter, and, as he testified,
"asked them what I had done wrong that they want some-
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one else for their boss " On April 25, the Regional Director
directed an election in a unit consisting of all over-the-road
drivers employed at the Topeka facility, excluding all other
employees and supervisors Out of approximately 25 eligi-
ble voters, 5 votes were cast for the Union and none
against, while 11 ballots were challenged Upon investiga-
tion, the Regional Director concluded that nine challenged
voters were ineligible and that the remaining two chal-
lenges were not determinative and thus found it unneces-
sary to pass on their eligibility Accordingly, he certified
the Union as the exclusive representative of the employees
in the appropriate unit on June 19 The Regional Director,
in his decision, noted that the drivers operate runs lasting
between 6 to 10 hours and cover up to 250 miles in dis-
tance, and that 6 of the yardmen performed an unspecified
amount of local pickup and delivery driving generally
within a radius of 25 to 50 miles of the plant As stated
above, the Union, on June 19, was certified as the exclusive
representative of the drivers
B Changes in Working Conditions
Union Representative Warnock telephoned Hochstetler
during the last week in March or the first week in April,
and testified that he had received phone calls from Cripe,
Troyer, and Hollar to the effect that Hochstetler had
threatened to bring in brokers and get rid of the trucks On
cross-examination, Hochstetler admitted that he had met
with the six drivers and had told them that he was consid-
ering going owner-operator Warnock stated that Cripe
told him that one truck had been picked up in the yard and
repossessed, a fact which Cnpe also related Warnock also
stated that the drivers told him that Hochstetler had said
that he was going to take away their bonus and that it was
costing him $2,000 to $3,000 to beat the Union and that
that sum was going to come out of the drivers' checks and
he did not need them and that he would replace them
Hochstetler testified that, at one of the meetings, he told
the drivers they were not supposed to get the bonus when
they did not do things right He also acknowledged that a
truck had been pulled out of his yard because the engine
needed to be repaired, but denied that the truck was repos-
sessed or that he had so informed Cripe He admitted that
the drivers had been told that they weren't supposed to get
the bonus when they did not do things right but that they
were, nonetheless, paid the bonus He denied that he made
the statement that the money to fight the Union was com-
ing out of the employees' pockets in the event the Union
came in He further denied having made the statement at-
tributed to him by Cripe to the effect that he would replace
the drivers either with brokers or owner-operators, or that
he would not "have a bunch of dumb union truckdrivers in
here "
Hochstetler testified that at one of the meetings with the
drivers before March 1 they were told that "they wasn't
supposed to get the bonus when they didn't do things
right," but that, nevertheless, "we was good-hearted and
give it to them anyways just trying to get them to do the
right thing " On the other hand, Cripe answered, on
cross-examination, when asked by Respondent's counsel
whether "bonuses were not taken away for more than a
week" "one week" and, on redirect, stated that that was the
week of March 22 In view of Respondent counsel's ques-
tion to Cnpe, and since no business records were submit-
ted, I credit Cripe
Warnock testified that, in speaking to Hochstetler, he
endeavored to assure Hochstetler that he and the Union
could work together He related that Hochstetler said, "I'm
not going to have some Union goon telling me how to run
my business," and that "a bunch of dumb truckdrivers
aren't going to tell me how to run this operation It's my
business " Further, Warnock related that Hochstetler said
he was not going to talk to him without a lawyer present
and then hung up Hochstetler denied that he said any-
thing to the effect that he was going to fight the Union and
keep it out of his business Hochstetler testified that at the
July 15 meeting with the drivers, which was also attended
by Respondent's representative Blankenship, Cripe "said if
we put any local yard drivers on the truck at Yoder Ready
Mix that they wouldn't come back," and that Warnock
said, "Now, calm it Let's keep this under control " Ac-
cording to Hochstetler, at a meeting with the drivers on
March 15 he told them that he was thinking of going into
the owner-operator business
Paragraph 6(d) of the complaint alleged that on or about
April 1 and 2 the Respondent "provided its employee John
Troyer with less employment than he normally would have
received " Troyer was not called as a witness and, so far as
I can ascertain, the only testimony concerning him was
given by Hochstetler who stated that he was lowest in se-
mority and had the oldest truck which had a motor prob-
lem, and was also off on occasion These circumstances, so
Hochstetler testified, accounted for the fact that Troyer
had fewer trips than the other drivers A compilation of his
earnings was placed in the record and this document con-
tained the statement that Troyer "was one hundred percent
honest, always kept perfect records as required, tried hard-
er than any other driver to do a good job, and he was
always clean " Counsel for the General Counsel, in her
brief, argues that the Respondent deprived Troyer of mak-
ing a run on or about April 1 and 2 and contends that the
Respondent's "denial of such action is insufficient since
the best evidence of the run is the daily log sheets of the
drivers, which the Respondent failed to put in evidence"
and, inasmuch as I sustained her objection to Hochstetler's
"conclusionary oral denial of refusing to run Troyer on
April 1 and 2, 1975," her contention is that the Respondent
"has failed to rebut the allegation that it refused to run
Troyer because of his union activity " Thus, she argues that
the Respondent, by "refusing to give him job assignments"
retaliated against him for his union activities, thereby vio-
lating Section 8(a)(3) of the Act
On Wednesday, May 28, 2 days before the election,
Hochstetler called a meeting of the employees at the home
of Elizabeth Hochstetler, his mother and the Respondent's
secretary-treasurer Hochstetler introduced Ray Blanken-
ship as his representative and the latter spoke to employees
about their rights in connection with the election Accord-
ing to Cripe, Blankenship "told us what would happen if
we got the Union and how much more it would cost the
corporation if we got the Union," and, further, stated that
in the past Hochstetler had made work for the employees
HOCHSTETLER & SONS 43
and that, in the event they joined the Union, there "would
be no work made for us, but they would protect the yard
help." He further related that Blankenship "said that if we
did get the Union in we was going to have to live with it."
Blankenship was in attendance at the hearing but neither
he nor any other witness produced by the Respondent de-
nied that he made the foregoing statements. In conse-
quence, counsel for the General Counsel argues that "these
statements must be taken to be admitted" and that the
testimony of Cripe and another employee witness, Keith
Hollar, to the same effect, stands uncontradicted and, in
consequence, "the threat to employees constitutes still an-
other violation of Section 8(a)(1) of the Act."
Prior to the election, it had been customary for the driv-
ers to service their trucks. On the day of the election Cripe
told Hochstetler, or his brother James, an official of the
Respondent, that his truck was due for service and he was
told that he should service it after he was through voting.
However, he was not allowed to do so as the Respondent's
representative "came out and pulled the keys." Cripe spoke
to Respondent Hochstetler on the intercom, asking wheth-
er it would be all right to service his truck. Hochstetler
answered, "No, you guys are damn union now. You ain't
going to service your trucks no more." Thereafter, the yard
help, so Cripe testified, serviced the trucks. Cripe also stat-
ed that he asked Respondent Hochstetler why he was not
allowed to service his truck and received the following re-
ply: "You guys are going to pay for it. You brought it on
yourself."
Hochstetler testified that before May the mechanics and
"once in a while" a driver serviced the trucks but that after
May 30 mechanics serviced the trucks and drivers did so
only if a mechanic was not on duty. Hochstetler also ad-
mitted that he changed the locks on the garage door and
that thereafter the drivers could not service the trucks un-
less he or his brother "opened the gates" on which he had
changed the locks. Thereafter, the mechanic, Tony Andrea,
serviced the trucks. Hochstetler admitted that he changed
the locks in order to keep the drivers out, as they had keys
to the lock that had been on the door theretofore. Andrea
and Hochstetler testified that parts had been taken without
permission from the parts cage in the garage area and that
the decision to change the locks was made in October 1974.
The record shows that parts had been missing since 1965.
Counsel for the General Counsel points out that the
change Hochstetler made in October consisted of putting a
lock on the parts cage and not on the garage area in which
the drivers serviced their trucks, and that changing the lock
on the garage door was not an economic measure but
caused by the Union. Counsel for the General Counsel
contends that in doing this Hochstetler "had altered the
condition of employment of his drivers, and thereby violat-
ed Section 8(a)(3) of the Act."
It is contended by the Government that the
Respondent's "ultimate retaliatory move" against the em-
ployees occurred after the May 30 election. In support,
counsel points out that the week after the election Cripe
worked only 1 day, his truck remaining in the yard. Hollar
was called in from running a load by James Hochstetler for
the reason that Hollar was using Cripe's tractor. The fact is
that it had been common practice for the drivers to change
equipment in the past. Following the election, the drivers
obtained fewer job assignments and, in consequence, their
earnings were less. Customarily Cripe drove over 1,000
miles a week and had been earning a gross of $200 each
week before the election. After the election he drove 400 to
500 miles a week and at best grossed $85 a week. Feight-
ner, before the election, made five to six trips to Toledo
and netted $170 a week but, after the election, he netted
$25. Hollar's earnings dropped to between $44 and $75 a
week. The other drivers experienced similar losses in earn-
ings.
Although Hochstetler claimed that business was slow,
this seems not to be the case, inasmuch as grain was being
hauled over long distances by the yardmen. Thus, John
Galloway took a load to Long Jack, Michigan, and Ro-
mayne Bender went to Anderson, Ohio. Hollar, as the
Union's steward, kept records of each long-distance run.
Although the Respondent submitted a table comparing the
gross pay of the drivers and yardmen for the first 6 months
of 1974 and 1975, this seems not particularly significant
since the allegation concerning loss of runs dates from
May. Thus, the figures produced by the Respondent are
not particularly relevant to the period in which the alleged
discrimination occurred.
It is contended by the Respondent that truckdrivers
made short hauls for May and thereafter and worked as
much as the yard help. The Respondent pays the short-
haul drivers by the hour, while the long-distance drivers are
paid a percentage of the load. It follows, therefore, that
they received more pay when longer distances were driven.
The record demonstrates that the high-paying load hauls
went to the yardmen after May 30. Counsel for the General
Counsel, pointing to the testimony of drivers as to their
loss of earnings after May 30, which they attributed to their
union activities, asserts that the Respondent "has failed to
give any credible explanation as to why such losses oc-
curred," and that, in the absence of any plausible explana-
tion, "the Respondent has failed to rebut the testimony of
the drivers which consequently must be deemed true."
Thus, she asserts, Hochstetler ' kept his promise, he was
protecting his yardmen, and striking out at the over-the-
road drivers," employees "who brought the Union in." In
consequence, she concludes that the Respondent thereby
violated Section 8(a)(3) of the Act.
C. Concluding Findings
In my opinion, the record in this case amply demon-
strates that the Respondent made threats to and ques-
tioned its over-the-road truckdrivers because of their activ-
ities on behalf of the Union. Moreover, the locking of the
garage door, the refusal to allow the drivers to service their
trucks, and the denial of long-distance hauls to the drivers
constitute conduct of a discriminatory nature and, in my
view, is a violation of Section 8(a)(3) of the Act. In sum, I
find that the Respondent violated Section 8(a)(3) and (1) of
the Act by the conduct detailed above.
Before coming to this conclusion I have considered the
contentions made by counsel for the Respondent in his
brief, to the effect that "careful analysis of all the testimo-
ny and after considering it with all its reasonable inferenc-
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
es, the Government has failed to make a prima facie case
here " In this regard, he asserts that the earnings of the
drivers, as reflected by the payroll records, do not indicate
"any reprisals such as taking trips or work away from the
drivers", moreover, he points out that the Respondent "has
the same number of trucks, employees, and destinations
driven to," in spite of the fact that there was a substantial
decrease in the amount of grain in 1974 as against 1973, a
decrease from 282,600 bushels as against 96,940 He there-
fore argues that the Respondent "made work for his men
to enable them to take home a paycheck " However, the
records of the Respondent demonstrate that on the whole
the yardmen benefited at the expense of the truckdrivers,
who had been active in support of the Union Counsel fur-
ther contends that the method of truck maintenance was
changed in September 1974, not on the following May 30,
"as alleged by the hiring of Tony Andrea due to thefts and
improper maintenance and the reduction of expenses of
maintenance " But the fact is that thefts had occurred since
1965, and, after the change, the drivers had to secure per-
mission to service their trucks, in contrast to the situation
prevailing for years prior to the election
III THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States, and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following
CONCLUSIONS OF LAW
the Act and Chauffeurs, Teamsters, and Helpers Local
Union 414, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of
Section 2(5) of the Act
2 By making threats to and questioning its over-the-
road drivers concerning their activities in behalf of the
Union, the Respondent violated Section 8(a)(1) of the Act
3 By locking the door to its garage, thereby refusing to
allow and depriving its drivers from performing service
work on vehicles driven by them, and refusing to assign or
curtailing the assignments of over-the-road drivers to long-
distance hauls, the Respondent violated Section 8(a)(3) and
(1) of the Act
4 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act
THE REMEDY
It having been found that the Respondent has engaged
in unfair labor practices, it will be recommended that it
cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act
Inasmuch as it has been found that the Respondent dis-
criminatorily deprived its over-the-road drivers, named
above, of long-distance runs, it will be recommended that
they be offered such assignments on a nondiscriminatory
basis and, in addition, be made whole for any loss of wages
suffered by reason of the Respondent's unlawful conduct,
in accordance with the Board's formula set forth in F W
Woolworth Company, 90 NLRB 289 (1950), with interest
thereon at the rate of 6 percent per annum as set forth in
Isis Plumbing & Heating Co, 138 NLRB 716 (1962)
[Recommended Order omitted from publication I
1 Hochstetler & Sons, Inc, is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of