New Truck Transport, Inc.

National Labor Relations Board - Board Decisions

Sep 22, 1969

178 N.L.R.B. 545 (N.L.R.B. 1969)

NEW TRUCK TRANSPORT, INC. 545
New Truck Transport, Inc. and Thomas O'Hearon
and James Johnson and William Shuff and
Claudino Rivera. Cases 28-CA-1699 and
28-CA- 1761
September 22, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On June 19, 1969, Trial Examiner Herman Marx
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. The Trial
Examiner also found that Respondent had not
engaged in certain other unfair labor practices
alleged in the complaint and recommended dismissal
as to those allegations. Thereafter, Respondent filed
exceptions to the Trial Examiner's Decision and a
brief in support thereof, and the General Counsel
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, New Truck
Transport, Inc., Phoenix, Arizona, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
'The Respondent 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
preponderance of all the relevant evidence convinces us that the resolutions
are incorrect We find no such basis for disturbing the Trial Examiner's
credibility findings in this case Standard Dry Wall Products . Inc , 91
NLRB 541, enfd 188 F 2d 362 (C A 3)
DECISION OF THE TRIAL EXAMINER
STATEMENT OF THE CASE
HERMAN MARX, Trial Examiner- The complaint, as
amended, alleges that an employer named New Truck
Transport, Inc. (herein the Company or Respondent), has
violated Section 8(a)(3) of the National Labor Relations
Act, as amended (herein the Act'), by discriminatorily
withholding work from six employees, Robert Bean,
William O. Shuff, James C. Johnson, Henry M. Chayrez,
Claudino Rivera, and Thomas A. O'Hearon, because they
had engaged in union or other concerted activities
protected by the Act; and has violated Section 8(a)(1) of
the Act by such discrimination and other misconduct,
including interrogation of employees concerning their
union membership, activities and desires: and threats to
employees of discharge. cessation or curtailment of
operations, loss of work or other reprisals if they engaged
in such activities.2
The Respondent has filed an answer which, in material
substance, denies the commission of the unfair labor
practices imputed to it.
A hearing on the issues has been held before me, as
duly designated Trial Examiner The General Counsel and
the Respondent appeared through respective counsel and
were afforded a full opportunity to adduce evidence.
examine and cross-examine witnesses, and submit oral
argument and briefs.'
Upon the entire record, from my observation of the
demeanor of the witnesses, and having read and
considered the briefs filed with me since the close of the
hearing, I make the following findings of fact:
FINDINGS OF FACT
1. NATURE. OF THE RESPONDENT'S BUSINESS; JURISDICTION
OF THE BOARD
The Company is an Arizona corporation; maintains its
principal office and place of business in Phoenix. Arizona.
where it is engaged in the trucking business; and is. and
has been at all material times, an employer within the
meaning of Section 2(2) of the Act.
In the course and conduct of its business operations
during the year preceding the issuance of the complaint,
the Company has sold goods or furnished services valued
in excess of $50,000 directly to customers located outside
the State of Arizona, and has purchased. transferred, and
had delivered to its said place of business goods valued in
excess of that sum, which were transported to Arizona
from points located outside thereof. By reason of such
interstate operations and transactions, the Company is,
and has been at all material times, engaged in commerce
'29 U.S.C 151, et seq
'The complaint was issued on July 31. 1968, was amended on September
25, 1968, and, as amended, is based upon a charge filed in Case
28-CA-1699 on May 6, 1968, and upon another filed in Case 28-CA-1761
on September 3, 1968 Copies of both charges, the complaint, the
amendment thereof, a notice of hearing, and an order consolidating the
charges for hearing have been duly served upon the Respondent and all
other parties respectively entitled to such service. A hearing upon the issues
in this proceeding was held at Phoenix, Arizona, on February 25, 26, and
27, 1969
'Since the close of the hearing, the General Counsel has filed a motion
for the correction of the hearing transcript, and has submitted proof of due
service upon the Respondent No opposition has been received; the motion
is granted, and the transcript is corrected in the particulars set forth in the
motion. The transcript is garbled at a number of other points, but as the
record adequately sets forth the material facts and issues, I deem it
unnecessary to enter an order making the additional corrections
178 NLRB No. 83
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within the meaning of Sections 2(6) and 2(7) of the Act.
Accordingly, the National Labor Relations Board has
jurisdiction over the subject matter of this proceeding
It. THE I ABOR ORGANIZATION INVOLVED
The Transport & Local Delivery Drivers,
Warehousemen & Helpers, Local Union No 104 (herein
the Union) is, and has been at all material times, a labor
organization within the meaning of Section 2(5) of the
Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory Statement
The Company's labor force includes approximately 16
truck drivers, and its trucking operations are subject to
overall management by its corporate secretary and
vice-president, Forrest L. (Barney) Cagle (on occasion,
herein Forrest), who is, and has been at all material times,
a supervisor within the meaning of Section 2(11) of the
Act.
The drivers are subject to direct supervision by one or
more dispatchers, who have the lunction of assigning
hauling tasks to the drivers and supervising the
performance of their duties, and reprimanding them for
deficient performance as occasion requires. Cagle's
nephew. Clinton C. Cagle (on occasion, herein Clinton),
formerly held the position of dispatcher. assuming it in
1965. He was then introduced to the drivers by his uncle
as the Company's "manager," and while serving as
dispatcher was "in charge of the dispatching department
As the record establishes, without dispute, Clinton was at
all material times while holding the position of dispatcher,
a supervisor within the meaning of Section 2(11) of the
Act.
There is no dispute that Clinton is now a driver in the
Company's employ, but there is some conflict as to the
date when he assumed that post and discontinued his
supervisory functions. A resolution of the issue may have
a bearing on the question whether certain conduct of his is
imputable to the Company. Clinton testified that he
became a driver. and thereupon ceased his dispatching
functions, about April 5 or 6, 1968, but in a signed and
sworn pretrial statement he gave to the General Counsel
in June 1968. about eight months before the hearing, he
said, "I commenced driving on April 28, 1968 " That that
statement is correct, and his relevant testimony is not, is
attested by the undisputed fact that Clinton replaced
Robert Bean one of the alleged discriminatces, as a driver,
and that Bean, as shown by the Company's records,
worked until April 25, 1968. Clinton, in short, held his
supervisory position as dispatcher until at least that date
Another dispatcher, Edward A. Good, who still holds
that post, performing substantially the same supervisory
functions as those performed by Clinton, similarly is now,
and has been at all material times, a supervisor within the
meaning of Section 2(1 1 ).
'Clinton claims that he held the post of "manager" for only about 3
months, but there is no indication that the employees were told at any time
prior to the time of the alleged unfair labor practices imputed to him that
he was no longer "manager" In any case, he held supervisory status as
dispatcher at least at all times of misconduct imputed to him It may be
noted , in that regard , that the Respondent ' s answer, by not denying
pertinent allegations of the complaint , in effect admits that Clinton was a
supervisor within the meaning of See 2 ( 11) of the Act at all material
times See See 102 20 of the Board's Rules and Regulations.
On March 7, 1968, the Union filed a petition with the
National Labor Relations Board, seeking certification as
bargaining representative of the Company's drivers. The
upshot was a Board-conducted election held on April 13,
1968,5 and won by the Union by a vote of 9 to 5.
B The Allegations of Unlawful Interrogation and
Threats
The election was preceded by an organizational
campaign among the drivers, in which two of them,
Thomas A O'Hearon and James C. Johnson, played a
major role. O'Hearon had discussed organization of the
drivers with a representative of the Union early in March,
prior to the filing of the petition, and had received from
the Union's agent "authorization cards" which, upon
execution, in substance reflect support for the Union by
the respective signatories. O'Hearon and Johnson
circulated the cards among the other drivers, and secured,
in all. about a dozen signatures.
A driver (unidentified) told Good at some point in
March that there was organizational activity among the
drivers, and that Johnson was seeking to persuade them to
join the Union, and Good passed the information on to
Forrest and Clinton Cagle.
Good also interrogated Johnson concerning union
activity, doing so on March I I in the dispatcher's office,
inquiring of Johnson "who went for the Union and who
all signed up for it." Johnson replied that he did not
know.'
In or about the early part of April, prior to the
election, Forrest Cagle summoned a group el drivers,
including Shuff, O'Hearon, Johnson, Chayrez, and Rivera,
to a shack on the premises called the "drivers' room,"
where the drivers passed time waiting for assignment, and,
in substance, asked each individually why he desired
unionization, and what his "gripes" or "problems" were.
Members of the group replied, in substance , that their
paychecks were frequently "short" of what was due
them.
Forrest also interrogated Rivera about a union matter
after the election, doing so on or about May 1I in the
"drivers' room" where Rivera was engaged in completing
some trip documents. On that occasion. Cagle asked
Rivera to disclose who had been at a union meeting the
night before, and Rivera replied that he did not know
because he had not attended. Cagle said he was "sure" he
knew who had attended, to which Rivera responded. in
substance, that if Cagle had the information, there was no
need to ask him for it. Cagle then said that it he found
out that Rivera had lied about the meeting, he would
discharge Rivera.'
'Unless otherwise specified , all dales mentioned below occurred in 19b8
'1 do not credit a denial by Good that he talked to any of the drivers
about the Union He later contradicted himself, stating that he discussed
the organization with "the drivers that didn ' t want to go union," and
identifying five such employees 1 do not believe that Good' s discussions
were so limited, and have based the finding regarding the interrogation of
Johnson on the latter' s relevant testimony , which I credit
'I do not credit Forrest Cagle' s denial that he interrogated employees
"in regard to the union " He gives no account of a conversation with
Rivera on or about May It, and his testimony contains no denial that he
threatened Rivera with discharge on that occasion . Moreover, the
Respondent did not call a dispatcher named Don Brechler, who was
present during the interrogation in May described by Rivera Forrest Cagle
concedes that he asked each of a group of drivers " individually" what his
"problem" was, and that each said he "thought" that he was being cheated
on his paychecks The episode is plainly the one described by various
drivers as the occasion when Forrest Cagle queried individuals about their
NEW TRUCK TRANSPORT, INC. 547
Forrest Cagle's query of Rivera as to the identity of
those at a union meeting was plainly of a coercive
character, harnessed qs it was to a threat to discharge
Rivera if Cagle later learned that Rivera had replied
untruthfully to the question. The preelection interiogation
by Good and Forrest was also likely to have an inhibiting
effect upon the employee,' freedon to engage in
organizational activities. This is particularly true of
Good's inquiry, at a time when the election was in
prospect. seeking the names of those who had manifested
support for the Union. Significantly enough. Johnson,
although active in organizing the employees, replied that
he did not know the identity of union adherents --a
response that suggests that Good's inquiry induced in
Johnson a fear of reprisal against himself and others
because of their prounion sentiment.' Moreover, as will
presently appear, the record establishes a pattern of
discrimination by the Respondent against various drivers
as a reprisal for their union activity or interest. In the
light of the total record, I find that the Company
interfered with, restrained, and coerced employees in the
exercise of rights guaranteed them by Section 7 of the
Act, thereby violating Section 8(a)(I) of the Act, as a
result of Good's query of Johnson as to "who went for the
Union and who all signed up for it"; Forrest Cagle's
inquiries of the employees as to why they desired
unionization, and his interrogation of Rivera as to the
identity of those in attendance at a union meeting.'
Much of the misconduct attributed to the Company by
the General Counsel involves Clinton Cagle On one
occasion during the pendency of the representation
petition, encountering Rivera on the Company's premises,
he asked Rivera if he "knew anything about the union,"
and Rivera replied in the negative Clinton then said that
"we can't afford to go union" and that "(i)f we go union
we are going to have to close the gates."
In somewhat similar vein, Clinton told Johnson in the
Company's yard. while the petition was pending, that "if
the union won the vote they (the Company) would
probably have to lock the gates", and asked Johnson why
he "wanted to be responsible for making these guys lose
their jobs" Johnson replied that he did not seek such a
result, nor see how he could he held responsible for it.
Much the same pattern also appears in iemarks Clinton
made one evening before the election, either late in March
or early in April, to a group of drivers. including Chayrei,
Bean, O'Hearon, Shuft', Rivera. and Johnson. These
employees had been to a meeting at the Union's
headquarters in Phoenix, and were standing on the
sidewalk in front of the meeting place when Clinton and a
driver named Hayes passed in the vicinity in Clinton's
"gripes," and it is evident. too, that the interrogation about "problems" or
"gripes,' even without any specific reference to unionization, amounted, in
the context of circumstances. to an implied inquiry into the employees'
reasons for desiring union representation In any case , I have no doubt that
he expressly asked each employee on the occasion in question why he
desired unionization . Forrest admitted as much in a sworn pretrial
statement he gave the General Counsel
'See Bourne Co v JV L R B , 332 F 2d 67 (C A. 2)
'Clinton Cagle admittedly asked Johnson if he was involved with the
Union, but the context of the inquiry does not appear , nor does the period,
except that the incident occurred after March 7, 1968 A determination
whether the query violated the Act would add nothing of substance to this
case . I also make no finding that Forrest Cagle' s threat to discharge
Rivera violated the Act because Rivera's testimony in that regard was
inadvertently overlooked in the course of passing upon and granting a
motion by the Respondent, at the close of the General Counsel's
case-in-chief, to dismiss allegations of the complaint to the effect that
Forrest Cagle had unlawfully "threatened" employees with discharge
pickup truck."' One or more of the sidewalk group waved
at the truck, and Clinton and Hayes stopped and joined
the group. Clinton then invited the others for coffee at a
nearby restaurant
There, over coffee. Clinton told the others that if they
chose the Union. the Company would either lease or sell
its trucks, or go out of business, and the employees would
be out of work. O'Hearon, stating that some of the
drivers had "already signed for the union." asked. "No
matter which way it (the election, as I inter) goes, you are
going to fire us, aren't you'?" and Clinton replied, "You
know it." Alter coffee, as Clinton and Hayes were leaving
the premises. Clinton told the others who were departing
as a group: "Don't call us. We will call you."' 2
Clinton's remarks about closing the plant or its gates,
leasing or selling the trucks, and going out of business.
were no mere predictions of the economic consequences of
unionization, but added up to threats of job loss for the
employees if they chose unionization. There is good
reason to believe that during the restaurant discussion
O'Hearon, at least, construed the relevant remarks as a
threat of reprisal against those supporting the Union, for
after Clinton made them. O'Hearon, noting that some
"had already signed for the Union" asked Clinton
whether these would be discharged irrespective of the
election result, and Clinton agreed that that would be the
case. And, indeed, in the context of what had gone before.
Clinton's parting remark "Don't call us. We will call you"
was as much as to tell the drivers who had been to the
union meeting that they would be denied work because of
their support of the Union Employees who were thus
threatened by Clinton could reasonably interpret his
allusions to plant closure and the sale or lease of' the
trucks in the event of unionization as a similar prod to
abandon unionization on pain of losing their jobs, and
there would be added warrant for such an interpretation in
Clinton's omission to couch his purported forecasts "in
terms of demonstrable 'economic consequences.""'
The coercive thrust in Clinton's forecasts of plant
closure. truck dispositions, and consequent loss of
employment is manifest. and I thus find that the
Company interfered with, restrained, and coerced
employees in the exercise of rights guaranteed them by
Section 7 of the Act, and thereby violated Section 8(a)(f)
of the Act, as a result of (1) Clmton's inquiry of Rivera it
"Rivera testified that the episode occurred alter the election, but I
believe him to be mistaken According to other witnesses , including
Clinton, the incident took place late in March or early in April, and I am
satisfied that their recollection of the period is better than Rivera's
"Allegations of unlawful surveillance in the complaint rest on the
occasion when Clinton passed the meeting place in his truck The
allegations were dismissed on the Respondent's motion for reasons that
appear in the record, and need not be repeated lyre
"Clinton does not deny that he made the remark "Don't call us We will
call you. ' nor that he told the employer's that the Company would sell or
lease the trucks in the event the employees chose union representation, and
he admittedly said something about closing the plant gates , testifying that
Johnson "kept asking me what the company was going to do," and that he
replied that he did not know. but that "if I was the company I would
close the gates " I ant persuaded that Clinton was somewhat more
assertive on the subject of unionization than his testimony would lead me
to believe, and that the accounts of Shuff, O'Hearon, Johnson and
Chayrez, taken together, reflc,,t the substance of what was said on the
subject at the restaurant Findings as to the restaurant discussion are based
on relevant portions of the four employees' testimony
"N L R B v Sinclair Company 397 F 2d 157. 160 (C A 1) See also,
N L R B v Kalmar Laboratories , Inc , 387 1- 2d 833 (C A 7), holding (at
p 837) that an employer's prediction of ''untoward economic events (as a
result of unionization ) may constitute an illegal threat if he has it within
his power to make the prediction come true "
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he "knew anything about the union," and the related
remark that if the employees were unionized , "we (the
Company) are going to have to close the gates"; (2)
Clinton's similar statement to Johnson that "if the union
won the vote they (the Company) would probably have to
lock the gates"; (3) Clinton's remarks in the restaurant to
the effect that in the event the employees chose the Union,
the Company would either lease or sell the trucks. or go
out of business, and the employees would be out of work,
(4) Clinton's affirmation that employees who supported
the Union would be discharged, irrespective of the election
result; and (5) Clinton's remark upon his departure from
the restaurant: "Don't call us. We will call you."
I reach the same result with some remarks by Clinton
that did not, in terms, refer to unionization. As Johnson
testified, on March 19, on the Company's premises, he
told Clinton that the latter "was going to have a hard
time starving us out," and that Clinton replied that "he
wasn't trying to starve us out, that he just wasn't going to
give us anything to do."
At the time of the conversation, Johnson had been
given no work for eight consecutive days, although
reporting in person at the plant each day; he had actively
solicited drivers to sign union authorization cards; several
days after the filing of the representation petition, Good
had asked him if he knew who was supporting the Union;
and against that background. it is evident that Johnson
believed that he was being denied work because of his
union activity, and that the implied thrust of his statement
that Clinton "was going to have a hard time starving us
out" was that Clinton would have a "hard time" deterring
union adherents from their course by withholding work
from them. One may fairly infer, too, and I find, from the
thrust of Clinton's reply. and the record as a whole, that
he understood Johnson's meaning. As will presently
appear in greater detail, the record establishes a pattern of
discrimination against Johnson and other prounion drivers
soon after the organizational campaign began by
withholding work assignments from them and dispatching
employees with less seniority who were known to the
management to be opposed to union representation.
The sum of the matter is that I read Clinton's relevant
statement, in the total setting, as meaning, in substance,
that he would withhold work from Johnson and others
because of their support of the Union: and find that as a
result of the statement, the Company interfered with,
restrained, and coerced employees in the exercise of
Section 7 rights. and thereby violated Section 8(a)(1) of
the Act."
C. The Alleged Discrimination
The Company pays a driver a percentage of its load
revenue for hauling cotton, fertilizer and other farm
products: at an hourly rate for driving distances up to 50
miles - - defined as "short hauls," and for longer distances -
defined as "long hauls" -at an hourly rate for the first 50
miles, and on a mileage basis thereafter Drivers generally
prefer "long hauls" because they earn more from them.
Some, at least, do "yard" and "shop" work or other
chores at the Company's premises as assigned, and are
paid at an hourly rate for such duties. Shop work mainly
involves working and cleaning chores in the Company's
truck and maintenance shop and "the ability . . . to listen
"I do not credit a denial by Clinton that he made the remarks Johnson
imputes to him These are of a piece with his statement "Don't call us. We
will call you" and other coercive remarks made by him
to the mechanic." and yard work consists of miscellaneous
tasks such as moving trucks in the yard; operating a
Hyster vehicle there, loading and sacking "pieces of pipe;"
and cleaning and sweeping chores
Before the start of union activity among the drivers, the
Company had a policy of making work assignments to its
drivers in the order of service seniority, and provided the
driver with relative seniority "could handle" the work
involved, and as Good testified, even where a driver
specialized in hauling a commodity (cotton, for example),
it no work were available in his speciality, he would be
given preference of assignment over his service juniors for
a type or work he did not ordinarily do.' S
The General Counsel, pointing to the coercive remarks
made by Clinton, notably his threats to withhold work
from union supporters, maintains that that is what the
Company did with respect to the six alleged
discriminatees, asserting, in substance, that in disregard of
its seniority policy, after the organizational campaign
began, the Company gave preference in assignment to five
drivers, Carl Byers, Edward Hill. Sr., Edward Hill, Jr.,
Ralph Tyler, and David Hayes (Clinton's driving
companion on the evening of the restaurant discussion)
All live were hired in the fail of 1967: were junior in
total service to the alleged discriminatees , with the
possible exception of Rivera who entered the Respondent's
employ in October 1967; and were all deemed by the
management prior to the election to be opposed to
unionization.", For convenience of discussion, the five will
on occasion be referred to below as the "non -union"
drivers or employees.
The case of each alleged discriminatee varies in
noteworthy respects from that of the others, and thus the
question whether work was discriminatorily withheld from
each will be separately resolved below following findings
particularly pertinent to each.
I James C. Johnson
Johnson has worked for the Company over a period of
some years, "specializing" in hauling cotton during the
"Findings as to the assignment policy and practice are based on
testimony by Good and Clinton Cagle Forrest Cagle, in contrast, would
lead one to believe that seniority played no significant role in assignments,
for he testified that the governing considerations were "Their (drivers')
ability to handle the equipment : their ability to do a job for the public; and
to do a job for me" I am unable to accord any weight to these
self-serving , subjective generalizations , particularly as Good and Clinton
were the ones who actually did the dispatching prior to, and during, the
period of union activity culminating in the election on April 13 It may be
noted, too, that if Forrest, as he claims, serves as a dispatcher , he began to
do so late in April when Clinton discontinued his dispatching duties It
may be that Forrest has done some dispatching work since Clinton became
a driver, but the Company hired a replacement, Don Brechler, soon
thereafter According to Rivera, Good, and Brechler have been the only
two dispatchers since, and that testimony is given corroborative support by
the fact that there were only two dispatchers, Good and Clinton , prior to
Clinton' s assumption of other duties Why the Company should have three
after Brechler was hired, as Forrest would lead one to believe , does not
plausibly appear. In short, I do not credit an intimation in Forrest's
testimony that he serves as a regular dispatcher , and has functioned as
such since Brechler was hired in or about the early part of May.
"Good testified that after the union activity began and prior to the
election, the management (we) learned that the five were opposed to union
representation because "they were talking against it ," and that he spoke to
each on the subject The fact that five votes were cast against the Union is
not a factor in the finding that the Company deemed Hayes, Tyler, Byers,
and both Hills to be opposed to unionization The vote, needless to say,
was by secret ballot, and the record does not establish how any of the
employees voted.
NEW TRUCK TRANSPORT, INC. 549
Arizona "cotton season" which lasts several months,
beginning in the fall and ending by the middle of
February. However, he hauls other commodities and
performs yard work, as assigned.
As previously stated, he was active in the organizational
campaign in March, soliciting support for the Union
among the drivers, and securing execution of a number of
authorization cards. The management, I find, knew at
least as early as March 11 that Johnson had been
attempting to organize the employees. Good admittedly
received information to that effect from a driver in March
and passed it on to Forrest and Clinton Cagle, and
although the precise date of the receipt of the information
is not established, it is of some significance that Good
sought on March II to ascertain from Johnson the
identity of employees who had "signed up" for the Union.
The very tenor of the question, in the light of all
circumstances, warrants a conclusion that the
management then knew or believed that Johnson was
soliciting support for the Union and was in a position to
furnish the information sought.
The General Counsel maintains that during the period
beginning March 13 and ending May 2. the Company
discriminatorily withheld work from Johnson on 37
specified days. As the Respondent's records establishes,
Johnson did not work on such dates."
There is much in the record that points to a
discriminatory attitude toward Johnson during the period
in question. He had substantial earnings in the last
workweek in February, and the first two workweeks in
March," but his work assignments and earnings fell off
markedly in the second half of March, and in April,
although, as he testified credibly and without
contradiction, during the six-week period he usually either
reported for work at his customary morning hour, or
inquired about it by telephone. Significantly, in the
workweek that included March 11, the date on which
Good interrogated him, Johnson earned but $15, and
nothing at all in the following workweek, during which
Johnson, alluding to the failure to give him work, told
Clinton Cagle that the latter "was going to have a hard
time starving us out", and Cagle replied that he "just
wasn't going to give us anything to do," thus intimating,
as stated earlier, that he would withhold work from
Johnson and other union adherents. This of itself points to
a discriminatory reason for the steep decline in Johnson's
earnings in a substantial number of weeks after union
activity began among the drivers from the level preceding
it, and that view of the matter is reinforced by Clinton's
remark "Don't call us. We will call you" on the occasion
of the restaurant discussion late in March or early in
April.
Against the background of Clinton's remarks, concrete
evidence of discrimination against Johnson appears upon
an examination of Johnson's work and payroll records for
the period beginning March 13 and ending May 2, as
compared with the records, for the same period, of the
five nonunion drivers, all of them junior in service to
"The complaint , prior to the hearing, alleged discrimination against
Johnson on 23 dates during the relevant period, but the number alleged
was enlarged as a result of amendment of the pleadings at the hearing,
upon the General Counsel ' s motion, and over the Respondents objection,
to conform to the evidence . The Respondent did not seek added time to
meet the amendments , although informed that such time would be granted
if requested , and need for it were shown.
"Johnson earned $106 25 for the week ending February 25; $176 05 for
the week ending March 3, and $108 75 for the week ending March 10
(G.C. Exh. 2)
Johnson. Each of the five earned substantially more than
twice as much as Johnson during the period, and at least
one (usually more) of the five worked on each of the 37
days in question."
In view of the seniority policy described earlier, the fact
that the cotton season had ended some weeks before the
start of union activity among the drivers will hardly
suffice as an explanation, particularly as Johnson had
substantial earnings in workweeks between the end of the
season and March 11. the date of his interrogation by
Good. Moreover, Johnson hauled other products and did
yard work, as the record attests
The Respondents' explanation of the disparity is
unconvincing In fact, the two dispatchers, Good and
Clinton, give none. Forrest Cagle claims that during the
period in question he "offered Mr. Johnson all kinds of
jobs," including hauling fertilizer, but that the latter
rejected them, and that over a period of years, Johnson
had "refused" to make "long hauls." Johnson concedes
that on two occasions during the period he declined to
haul certain heavy equipment (a "road grader" and
"caterpillar") because he felt he lacked the requisite skill,
and he admittedly has been averse to making "long hauls"
that require night driving because he feels that his eyesight
is not up to such work, and has on occasion rejected such
trips, but it does not appear that this occurred during the
relevant period. Neither Good nor Clinton makes any
claim that he passed over Johnson because of any attitude
he had expressed toward fertilizer or long distance
hauling. In fact, Johnson made a hauling trip to Montana
in 1967, and Forrest Cagle, confronted with Johnson's
work record, admitted that Johnson made some "long
hauls'' in the very period in question, making a trip of 241
miles on April 25, one of 120 miles on March 27. and
another of 68 miles on March 26; and that Johnson made
a trip of 160 miles on a fertilizer-hauling assignment on
May 3. It does not plausibly appear why Forrest should
be offering Johnson "all kinds of jobs" in a period when
Good and Clinton were the dispatchers,'" and I do not
believe Forrest's claim in that regard, nor his testimony
that Johnson rejected "all kinds of jobs" during the
period, but am persuaded, rather, that in the period in
issue, Johnson rejected only the two heavy equipment jobs
that he describes.
The record establishes that during the relevant period,
all five nonunion drivers performed tasks that were within
Johnson's competence, including (but not limited to) yard
work and hauling pipe, gypsum, fertilizer, cotton, and
other farm commodities, and for the reasons stated, I am
convinced that in making work assignments during the
period. the Company departed from the seniority policy
previously in effect and withheld work from Johnson on
many occasions as a reprisal for his union activity and in
order to discourage his interest in unionization.
However, I am not prepared to state, nor is it necessary
to decide at this stage of this proceeding, that work was
unlawfully withheld from him on each of the 37 days
claimed by the General Counsel. The two occasions on
which Johnson admittedly declined to haul heavy
"For the period beginning with the workweek ending March 17 and
terminating with that ending on May 5, Johnson earned a total of
approximately $250 as compared with approximate total earnings, during
the period, of $957 by Byers; S646 by Hill, Jr, $690 by Hill, Sr, S529 by
Tyler; and $1,054 by Hayes
'"I do not construe a blanket affirmation by Forrest that he served as
dispatcher "after the first part of April" as meaning that he functioned in
that capacity prior to Clinton's relinquishment of that post toward the end
of April
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equipment were within the relevant period, but the record
does not establish the dates, nor has the General Counsel
indicated whether they have been excluded from his count.
Moreover, Johnson has had little experience hauling
"machinery" for the Company, testifying that he thinks
he hauled such equipment on only one occasion, and the
Company's work records indicate that one or another of
the five nonunion employees hauled "machinery" on a
number of occasions during the relevant period. The
evidence does not spell out the type of "machinery"
involved and, conceivably, it was of a kind that in the
normal course of operations would not be assigned to
Johnson for hauling What is more, the General Counsel
claims discrimination on a few days during the period (for
example, March 24) for more alleged discriminatees,
including Johnson, than the number of nonunion drivers
who worked on such days. The sum of the matter is that
while I am convinced that the Company withheld work
from Johnson during the period because of a policy of
discrimination toward him rooted in the Company's
hostility toward his union activity and interest, caution
dictates that the finding of discrimination against Johnson
be stated in terms of an inclusive period, and that
identification of the two days when he declined two
assignments, and of the days when he would have been
assigned work but for the policy of discrimination toward
him, be reserved for the compliance stage of this
proceeding
I find that during the period beginning on March 13
and ending on May 2, the Company discriminatorily
withheld work from Johnson because of his union activity
and interest in unionization, and that by such
discrimination, the Company violated Section 8(a)(1) and
(3) of the Act
2. Thomas A . O'Hearon
O'Hearon was employed by the Company as a driver
over a period of some years, driving both "short" and
"long hauls," and hauling a wide variety of commodities,
including pipe, cotton, corrugated steel, machinery, heavy
equipment, tanks, boxcars, fertilizer and lumber. He
testified that he "usually hauled anything at any time,"
and in view of the length of his employment and the wide
range of the commodities he hauled, I credit that
testimony and find that he was competent to perform any
of the trucking services performed by any of the
Company's drivers.
He worked with substantial consistency through the
first half of' 1967; was then off the payroll for several
months preceding the cotton season, returned at the start
of the season during the first hall of October, and from
that point worked each week, with earnings varying from
1 week to another through the workweek ending March
10, 1968
Starting on March 14, O'Hearon had no work on 8
successive days, on each of which one or more of the five
nonunion drivers had work, and he had assignments for
only about 5 days during the second half of March,
whereas each of the non-union drivers worked
substantially more during that period. He had a total of
seven days of work in the first two workweeks in April,
but during the next seven workweeks ending on June 2. he
earned but $15.30, for one day of work during the week
ending May 5 ii He had earnings in the workweeks ending
June 9 and June 16, and quit in the latter week,
apparently to take employment elsewhere.
The General Counsel contends that the Respondent
followed a policy of discrimination toward O'Hcaron
starting in mid-March, soon after he began his
organizational activity, and continuing for much of the
time after that through the workweek ending June 2. As
in Johnson's case, there is abundant support in the record
for that position
To begin with, O'Hearon initiated the organizational
campaign among the employees, solicited their support for
the Union, and secured execution of about half the
authorization cards that were signed. And it should be
borne in mind that Clinton, in charge of the dispatching
department until about April 25, intimated to Johnson on
March 19 that he had a policy of withholding work from
union adherents : acknowledged during the restaurant
discussion. in reply to a query by O'Hearon, that those
who had "signed up" for the Union would be discharged;
and upon departure from the restaurant implied that work
would be withheld from union adherents with the remark.
"Don't call us. We will call you."
As with Johnson, moreover, the record establishes great
disparity between the work volume and earnings of
O'Hearon and each of' the five nonunion drivers during
the period of alleged discrimination. Starting with the
workweek ending March 17 and terminating with that
ending June 2, a period of some 12 weeks, O'Hearon
earned a total of only approximately $280 (nothing at all
in about half the weeks), whereas each of the five
nonunion drivers worked in each of the 12 weeks and
earned at least three times as much during the period
ranging from about $890 for Tyler to more than 51500 for
Hayes 22
Neither Good or Clinton Cagle offered any explanation
for the disparity but Forrest Cagle testified that O'Hearon
"wouldn't show up for work," did not report " on time."
and was "very rough on equipment"; and that
"customers" objected to him.
The explanation does not weather examination. There is
no dispute, and O'Hearon in effect concedes, that he did
not regularly appear for work at the Company's premises,
nor telephone for it, during the period in question, but it
is quite another matter to say, as does Forrest Cagle in
effect, that that was a reason for his relatively small work
volume during the period. For one thing, O'Hearon gave
undisputed testimony to the effect that prior to the period,
when the Company had an assignment for him and he was
not on its premises to receive it. the management
customarily notified him by telephone at his home to
report for it 1 have no doubt that such was the practice,
but more to the point, the evidence establishes that after
the organizational campaign began, the Company had
what amounted to a standing rule that drivers were not to
come to the premises or call in quest of work. Prior to the
start of union activity, it was customary for drivers to sit
about waiting for assignment in the "drivers' room," but
after discussion of unionization began among the men,
Forrest Cagle told the drivers not to use the room or stay
on the premises when there was no work for them to do.
(According to him, he issued the directive because the
"The transcript quotes the General Counsel as asking Forrest Cagle
what O 'Hearon was doing on "April 20," and Cagle as replying , "Hauling
forms and lumber ', but the date is mistaken , and should be another,
perhaps April 12 O'Hearon' s timecard for April 20 reflects no work, and
the relevant payroll records (G C Exh. 4) show no earnings by him for the
workweek ending April 21 In any case, the end results here are the same
whether O' Hearon worked t or 2 days during the 7-week period
"The exact figures may be ascertained from the payroll records in
evidence
NEW TRUCK TRANSPORT , INC. 551
drivers "were agitating each other about union matters.")
Clinton, in fact, as previously described, told the drivers,
including O'Hearon, at the tail of the restaurant
discussion not to call the Company for work. And about
April 15, shortly after the election, Forrest Cagle's
brother, Ray, who is president of the Company, told a
group of drivers O'Hearon was not present) that they
would be called if needed, and that they were otherwise
not to come to the premises . All these admonitions, it
should be remembered, preceded the period of 7 weeks
during which O'Hearon had only about 1 day's work.
In the light of the practice of notifying O'Hearon by
telephone when he was needed, and of the expressed
requirements after the organizational campaign began that
drivers stay away from the premises unless called, one can
hardly fault O'Hearon for depending on the custom and
obeying the admonitions. Neither Good nor Clinton gave
any evidence that O'Hearon failed to report for work
when and as required, and Forrest Cagle cited no specific
instance when O'Hcaron failed to "show up for work" as
required, and in the absence of such evidence. Forrest's
claim that O'Hearon "wouldn't show up for work at
times" and was tardy for work appears to me to be a
contrived self-serving generalization. I am unable to
accord it any weight, and am convinced that the failure of
the Company to assign work to O' Hearon on any
occasion during the period under inquiry was not
attributable to any omission by him to inquire for work in
person or by telephone.
Forrest Cagle's claim that O'Hearon was "very rough
on equipment" and that "customers" objected to his
assignment to their work is, in my view, of a piece with
his generalization that Johnson rejected "all kinds of
fobs," and that O'Hearon "wouldn't show up for work at
times"; and no more reliable as a basis for findings. There
is no demonstration of the respect in which O'Hearon was
"very rough" on equipment, nor in what way that affected
his work volume in the relevant period. The allegation
that "customers" objected to O'Hearon subsequently
became a claim that only one did "just about the only-
customer for whom the Company hauled pipe. Cagle was
vague as to when the alleged objection was registered.
testifying that "it was during the time between January
and the time here that he (O'Hearon) hauled pipe." The
term "here" was a reference to some work records of
O'Hearon which reflect some pipe hauling trips in March.
As the Company hauls pipe for "just about" one
customer, one may fairly infer that the March trips were
made for that concern and that O'Hearon was thus
assigned notwithstanding an alleged prior request by the
customer not to "send this man (O'Hearon) back "
Moreover, the alleged objection does not explain why
O'Hearon was not given any work at all in a substantial
number of weeks during which all live nonunion drivers,
all his juniors in total service, had assignments that did
not involve the hauling of pipe. The sum of the matter is
that Forrest Cagle does not plausibly explain the disparity
between O'Hearon's work volume and earnings and those
of the five nonunion drivers during the relevant period.
The reason. 1 am convinced, is to be found in the
Company's hostility to O'Hearon's support of the Union.
As previously indicated, most of the numerous days in the
period in question on which he was given no work came
after the restaurant discussion, and there can be no
question that the Company knew as of that time. at least,
that O'Hearon favored unionization and had "signed up"
for the Union. But, in addition, although there is no direct
evidence of knowledge by the Company of any union
activity or interest by O'Hearon prior to March 14, such
knowledge may be inferred from surrounding
circumstances." O'Hearon was the spearhead of
organizational activity among the drivers, starting his
organizational activity about the beginning of March. The
Company is a relatively small concern, with a small force
of drivers. Forrest Cagle was quite sensitive to discussions
of unionization among the drivers, as is evident from his
reason for expelling them from the drivers' room, and,
with his sensitivity. I think it likely that he would have
become aware during the first half of March, when much
of the activity went on, that O'Hearon was an active
supporter of the Union. Moreover, O'Hearon, much like
Johnson, had no work for eight successive days beginning
in mid-March, soon after the filing of the representation
petition, and the Respondent does not plausibly account
for the fact that work was withheld from O'Hearon who
was competent to perform it, and, in disregard of its
seniority policy, was given to employees who were junior
to him in service and deemed by the management to be
opposed to the Union. In short, I am convinced that the
Company knew or believed as of March 14 that O'Hearon
was a supporter of the Union."
On the basis of what has been said, it is clear that
during the period beginning March 14 and ending on June
2, the Respondent discriminatorily withheld work from
O'Hearon because it regarded him as a supporter of the
Union. Although he was competent to handle any of the
work assigned to any of the non-union drivers during that
period, I deem it unnecessary, at this stage of the
proceeding, to specify the dates upon which the work was
thus withheld That is a matter for the compliance stage
when, on the basis of the seniority policy in effect prior to
the organizational campaign and of O'Hearon's
competency as found herein, a determination can be made
of the particular dates when he would have been assigned
work but for the policy of discrimination against him.
I find, in sum, that by discriminatorily withholding
work Irom O'Hearon during the period beginning March
14 and ending June 2, the Company violated Section
8(a)(l) and (3) of the Act.
3 William O. Shuff
Shuff entered the Company's employ as a driver in
March 1967, and, except when he was off duty or on
limited duty as a result of industrial injury, was competent
to perform whatever hauling work the Company had.
He was a supporter of the Union, executing an
authorization card on March 6. the day before the
representation petition was filed, solicited other employees
to support the Union; was among the employees who had
been to the union meeting on the night of the restaurant
discussion; was present during the conversation, and when
Clinton Cagle told the group upon his departure. "Don't
call us. We will call you". and voted in the election.
Shuff sustained an industrial accident in January, and
was incapacitated for work until about May 14, drawing
workmen's compensation during the period. On or about
May 14. his doctor gave him a medical "release"
permitting him to do "light work," and he presented it to
"N L R B v Link-Belt Co. 3 11 U S. 584, 602, N L R B v Abbott
Worsted Mills . 127 F 2d 438, 440 (C A. I)
As is evident, I do not base the finding of knowledge or belief as of
March 14 only on the fact that the Company is a relatively small
entt .rprisc Its size , however , is a factor that may properly be taken into
account Cf N L.R B v Radcliife, 211 1-.2d 309, 312, in 2 (C A 9), cert
denied 348 U S 833
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Forrest Cagle, who told him that the Company had no
such work.
About a week later, on May 21, Shuff returned with a
medical statement from his doctor certifying to his
capacity for "full duty"; gave the document to a
dispatcher named Donald Brechler who had recently been
hired as a replacement for Clinton Cagle; and requested
work. Brechler gave him none, although Shuff waited for
about an hour. Shuff reported for work for several days
thereafter, but was given no work. He then discontinued
reporting for assignment until after he received a letter
from the Company dated September 10, sent to him about
a week after the Company had been served with a charge
filed by him and Rivera, alleging unlawful discrimination
against them. The letter, written by Forrest Cagle, told
Shuff "to report for work on or before 9/16/68 to do the
same type of work you were doing in early 1968." Shuff
received the letter a day or two later, reported for work
thereafter in accordance with the terms of the letter, and
was employed by the Company for some unspecified
period until his employment ended in circumstances not
disclosed in the record, and not material to the issues
here.
Although the Company had Shuff's address and
telephone number, it neither gave him any work nor
offered him any between the May date when he reported
for "light work" and the September date when he
reported in compliance with the letter, and the basic issue
regarding him is whether a discriminatory motive underlay
the omission.
Forrest Cagle offers the explanation that until the
hearing he understood that Shuff was medically eligible
only for "limited duty," but for this we have only Forrest
Cagle's word, as on other material matters where his word
is not enough for the reasons stated. The claim is not
entitled to credence if for no other reason than that
Forrest's letter of September 10, written some 5 months
before the hearing, notified Shuff to report for "the same
type of work you were doing in early 1968" or, in other
words, for the full duty status he had before his injury.
The very tenor of the letter indicates that Forrest Cagle
knew long before the hearing that Shuff was medically
eligible for full duty. Nor will an unsubstantiated claim by
Forrest that he "was dispatching" on May 21 suffice.
Perhaps he was doing that work on that date (although
that would mean that the Company had three dispatchers
instead of the two while Clinton served in that capacity),
but that does not explain why neither Good nor Brechler
gave Shuff any assignment on May 21 and for almost 4
months thereafter- a periodduring which all five nonunion
drivers, all junior to Shuff in job tenure, had substantial
earnings." Good, although a witness, gave no explanation
of the failure to assign Shuff during the relevant period,
and Brechler was not called, nor has the Respondent
explained its failure to do so.
I have no doubt that the Company knew or believed at
least as of the time of the restaurant discussion involving
Clinton Cagle late in March or early in April that Shuff
was a supporter of the Union, and am convinced that he
was not given work during the relevant period as a result
of a policy of discrimination against at least some union
adherents, evidenced Clinton's threats and the
discriminatory failure to give O'Hearon and Johnson
work, as previously described.
"Payroll records in evidence for the five nonunion drivers do not go
beyond the week ending June 16
The record does not establish whether there was any
"light work" available for Shuff during the week between
the two medical certificates, but, as I find, the
discriminatory policy toward Shuff was in effect when he
gave the first certificate to Forrest Cagle, and the question
of whether work Shuff could perform was available during
the week between the two certificates is a matter for
determination during the compliance stage of this
proceeding , as is the identification of the subsequent days
when, but for the policy of discrimination against him,
Shuff would have been given work on the basis of the
seniority policy previously described, and of his capability,
as found above.
I find that during the period beginning with his
submission, in May, of the medical statement that he was
fit for "light work" and the date of his return to work in
September, the Company discriminated against Shuff by
withholding work from him because it believed or knew
him to be a supporter of the Union; and that it thereby
violated Section 8(a)(1) and (3) of the Act.
4. Henry M. Chayrez
Chayrez entered the Company's employ in 1966 or
earlier; had an industrial accident at some point in 1967,
for which he drew workmen's compensation; and was not
medically fit for duty until about the third week in
January when he returned to work under a medical
restriction that he perform "light duty" and lift no
"heavy" objects. He was assigned to "light duty" such as
"helping straighten out . pipe in the yard," At some
point in February, he asked Clinton Cagle to assign him
to "local" driving. Clinton said that he would "work out
something". and did so. Starting in the first full workweek
in February, Chayrez worked in each week until some
point in the workweek ending on March 17, in the main
performing yard tasks and making local deliveries. The
tasks assigned were within his physical capacity, so far as
appears, except on one occasion late in February or early
in March when he drove to another community about 95
miles from Phoenix, and found upon his arrival that the
assignment involved some lifting work beyond his medical
limitation. Upon his return, he told Clinton, in substance,
that he could not do such work because of the limitation.
Chayrez signed an authorization card for the Union on
March 2; was individually interrogated by Forrest Cagle
prior to the election, in common with others similarly
questioned, as to the reason he desired unionization; had
attended the union meeting preceding the restaurant
discussion with Clinton Cagle; was present during the
discussion; was among those, on that occasion, to whom
Clinton made the parting statement: "Don't call us. We
will call you"; and voted in the election.
Chayrez earned $91.64 in the workweek ending March
17, but that was for work performed prior to March 13
that week, as may be inferred from his timecards for
March beginning with the 13th. Clinton Cagle told him in
mid-March that "there was no more work" for him, and
Chayrez was given none for a period of some six months
beginning March 13, except for four hours during the first
half of April, for which he was paid a total of $10. During
the early part of the period, he made inquiries of the
Company for work, doing so twice a day over a period of
1 or 2 weeks, and also waited about for work in the
"drivers' room" as late as mid-April (to an extent not
elaborated in the record), but was given only the 4 hours
of work previously mentioned. He was one of a group of
drivers told by Clinton and Ray Cagle shortly after the
NEW TRUCK TRANSPORT, INC.
election not to come to the premises to seek work, and
that they would be called at home if needed.
Chayrez, obviously, was not physically qualified to
perform all tasks required by the Company's trucking
services, but it is quite another matter to say that the
paucity of work for him for a period of some six months
was solely due to his physical condition and a decline in
business with the end of the cotton season. In fact, his
return to work following his injury came toward the end
of the season, but he nevertheless had substantial earnings
for some weeks between the end of the season and March
13. And it is incredible that the Respondent would not
have considerably more than 4 hours of work within
Chayrez' physical capacity during a 6-month period
beginning on March 13. There is not much information in
the record as to the volume and nature of "local" delivery
work the Company had during the period, but from what
there is, one may infer that the volume was substantial
(see R. Exhs. 1-3) and, what is more, during that period a
number of the nonunion drivers, all junior in service to
Chayrez, were given tasks in the Company's truck
maintenance shop and in the yard.
It is a striking fact that the cessation of work for
Chayrez, O'Hearon, and Johnson for a substantial number
of days began about a week after the filing of the
representation petition, which had been preceded by
organizational activity for about a week; that the excuses
offered for O'Hearon and Johnson do not weather
examination; and that none is given for Chayrez, except a
vague generalization by Forrest Cagle that Chayrez was
unable "to unload" a certain "type" of fertilizer This
purported explanation contributes nothing of substance to
a resolution of the material issue, which is not whether
Chayrez was physically able to perform every task for
which the Company needed a driver's services, but
whether work he could perform was discriminatorily
withheld from him for an unlawful reason. On that score,
the poverty of the proffered excuse becomes especially
manifest in the light of the fact that the elder Hill, who
was substantially junior in service to Chayrez, worked in
the yard or shop on a substantial number of days over a
period of some two months after March 13. Details of
these tasks are scant, but they included such work as
"helping" in the shop, "lawn" work, and "cleaning", and
especially against the background of Chayrez' yard and
local delivery duties in the 6-week period preceding March
13, one may fairly conclude that at least much of the shop
and yard work given to Hill and other nonunion drivers
during the 6-month period following March 13 was within
Chayrez' capacity. I find, in short, that during that period
the Company withheld work from Chayrez that he could
perform, doing so in disregard of the seniority policy in
effect prior to the organizational campaign. In the absence
of a credible explanation of this course, and taking into
account the timing of the start of cessation of work for
Chayrez and other supporters of the Union, Clinton's
threats to withhold work from union adherents, and the
fact that the threats were carried out for other union
adherents, the record as a whole points to a policy of
discrimination against Chayrez in work assignments
because the Company believed or knew that he supported
the Union. To be sure, there is no direct evidence of such
knowledge or belief as early as March 13, but the
surrounding circumstances, including the fact that the
cessation of work for a substantial period began for
Chayrez, O'Hearon and Johnson about the same date in
mid-March, soon after the filing of the representation
petition, point to a common discriminatory purpose in
553
withholding work from these three employees.
Deferring until the compliance stage of this proceeding
a determination of the particular dates on which Chayrez
would have been given work on the basis of the seniority
policy, previously described, but for the policy of
discrimination against him, I find that during the period
beginning on March 13 and ending with his return to
work in September, following receipt of a letter from
Forrest Cagle, like that sent to Shuff, the Company
withheld work from Chavrez because it believed or knew
that he supported the Union. and thereby violated Section
8(a)(1) and (3) of the Act.
5. Claudino Rivera
Rivera was hired by the Company as a driver in
October 1967, and during his employment has operated
both diesel and gasoline-fuelled trucks, hauling almost
every type of product transported by the Company in the
course of its business.
He signed an application for membership in the Union
on March 6; has attended union meetings , including the
one on the evening of the restaurant discussion, was
among those to whom Clinton that evening addressed the
remark: "Don't call us. We will call you"; and voted in
the election.
About 2 days after the election, Clinton and Ray Cagle
told Rivera in the "drivers' room." in substance, much as
they told Chayrez and others, that drivers were no longer
to come to the premises unless notified, and that they
would be called if needed Clinton asked Rivera if he had
a telephone, and the latter said that he did not, but that
he could be reached on a neighbor's telephone, and that
the Company's office had a record of the number. Rivera
also wrote the number on a slip of paper and gave it to
Clinton.
On or about May 11, upon Rivera's return from a
hauling trip of several hours to another Arizona
community, Brechler asked Rivera in the "drivers' room"
why he had not telephoned him while on the trip
(apparently to inquire whether he was needed for a return
load), and Rivera replied that he had not done so because
he did not believe that there was a load for him to haul
before his return. Forrest Cagle entered at about this
point and it was then, as previously described, that Cagle
asked Rivera to tell him who had been at a union meeting
the night before; and following Rivera's denial that he had
attended or knew who had, stated that if he learned that
Rivera had lied about the meeting he would discharge
Rivera.
Rivera earned about $76 in the workweek ending May
12, but only S13 in the next workweek. Following that
week, he was given no work until he reported, on
September 16, in compliance with a letter dated
September 10, written by Forrest Cagle shortly after
Rivera joined with Shuff in filing one of the charges
involved here, and notifying Rivera to report for work on
or before September 16.
The General Counsel's position regarding Rivera is
much the same as that concerning O'Hearon and Johnson,
that is, that the Respondent adopted a policy of
discrimination in work assignments against Rivera during
a period beginning "on or about" March 13 because he
was a union adherent.
Putting aside the period following May 12 for separate
discussion, there are some important differences between
the situations of O'Hearon and Johnson and that of
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rivera For one thing, there is no evidence in Rivera's
case, unlike that of O'Hearon and Johnson, of a cessation
of work for a substantial number of days beginning in
mid-March He earned some 5131 in the workweek ending
March 17, and this was more than tour of the nonunion
drivers earned that week. True, he had no work in 4
successive days in the week ending March 24, earning
about $42 that week, but he earned approximately S68 in
the week ending March 31. His wages dropped to $40 in
the following week, but rose to some $205 in the week
following, earning considerably more that week than any
of the nonunion drivers For another matter, it is not
established that Rivera has service seniority over some of
the nonunion drivers (Hayes, Tyler, and Hill, Sr.), and it
would thus be a guess to say that these were given
preference in assignment over Rivera in disregard of the
seniority policy Moreover, for the period beginning with
the week ending March 17 and terminating with the week
ending May 12. Rivera's total earnings of about $712 are
more than one of the five nonunion drivers (Tyler), almost
as much as two others (the two Hills), and not so far
short of the remaining two (Hayes and Byers) as to
warrant a conclusion, in all the circumstances, that the
two were given preference in the period in question
because of an antiunion motive.26 In short, the record will
not support a finding that an unlawful discriminatory
purpose underlay the ratio of Rivera's work assignments
to any nonunion driver prior to May 12.
But I take a different view of the period of some 4
months that followed it is a significant fact that Rivera's
earnings plummeted soon after Forrest Cagle, on or about
May 11, asked him to identify those who had attended a
union meeting, and upon Rivera's disclaimer of
knowledge, threatened him with discharge if it turned out
that he had lied about the meeting . The Respondent gives
no explanation for the fact that Rivera earned but $13 in
the week ending May 19, and nothing for almost four
months thereafter. Obviously, the fact that the cotton
season had ended in or about mid-February will not serve
as an explanation, for Rivera' s earnings for some months
after the season's end were substantial. The Respondent
presented no evidence that it ever called Rivera to report
for work during the period in question, and bearing in
mind the instruction to Rivera not to report for work
unless called, the Respondent surely has no standing to
claim that he was not assigned during that period because
he did not come to the premises or telephone in search of
work. It does not appear by what means Rivera was
notified to report for the relatively little work he had in
the week ending May 19. but, at least for the period that
followed until the letter of September 10, I am convinced,
and find, that the Respondent did not call or otherwise
tell him to report to work
The Respondent offered no evidence that during the
relevant period it had no work available for Rivera on the
basis of operation of its seniority system, and in the
absence of any explanation of the paucity of work
assignments for Rivera that followed hard upon Forrest
Cagle's threat, I am persuaded, and find, that the
Company withheld work from Rivera during a period
beginning in the week ending May 19 and terminating
with Rivera's resumption of work in mid-September
because Forrest Cagle believed that Rivera was an
adherent of the Union and had the information regarding
"During the relevant period , the five nonunion drivers respectively
earned the following approximate total sums Tyler $603, Hill, Jr $744,
Hayes $1213, Byers $ 1070, and Hill, Sr $804
a union meeting requested by Cagle; and wished to punish
him for withholding the information, and for his support
of the Union.27
Deferring until the compliance stage of this proceeding
a determination of the work assignments Rivera would
have had on the basis of the seniority system and his
capability, but for the discrimination against him, I find
that by withholding work from Rivera during the period
starting with the week ending May 19 and his resumption
of work on September 16, the Company violated Section
8(a)(1) and (3) of the Act.
6. Robert Bean
Bean entered the Company's employ as a driver prior
to 1967 and, as evidenced by the Company's payroll
records, worked each week that -year, and except for the
week ending April 21, worked each week in 1968 until he
quit durmg the week ending April 28.29
He did not testify (the General Counsel stated that he
was unvailable), and evidence hearing on his union activity
and attitude toward unionization is scant. There is no
indication that he signed an authorization card, but he
was in the group on the sidewalk in front of the Union's
headquarters on the night of the restaurant discussion,
and, as I infer from the sequence of events that night, had
been at the union meeting that preceded the discussion
He was in the group to whom Clinton addressed the
remark: "Don't call us. We will call you."
The General Counsel's position regarding Bean, as
expressed at the hearing and reflected in amendments of
the complaint made there, is that work was
discriminatorily withheld from Bean on 14 consecutive
days beginning with March 15 and ending with March 28.29
A major difficulty with the General Counsel's thesis is
that so far from proving that work was withheld from
Bean on the 14 days, the record establishes that he
worked on almost ally of them, and, what is more, for the
workweek ending March 24, he earned $281.82 (G.C.
Exh. 3). a substantially larger sum than that any of the
nonunion drivers earned that week
The General Counsel's claim connotes a misconception
of the evidence in the light of a stipulation of counsel
providing, in substance, that the General Counsel would
read into the record work and attendance information
pertaining to Bean taken from the Respondent's records,
and that in the absence of comment by the Respondent's
counsel, the information would constitute evidence in lieu
of the records themselves 30
"I note, in passing , that the fact that the record does not support a
finding of unlawful discrimination against Rivera prior to mud-May,
although the Company very likely knew or believed that Rivera had
prounion sympathies prior to the election, does not militate against the
finding of discrimination against O ' llearon and Johnson during a period
beginning in mid-March The Respondent knows best why it assigned work
to Rivera while withholding it from O' Hearon and Johnson in a period
starting in mid-March , but has not given a candid explanation of its
course
"Bean returned to the Company' s employ in September No aspect of
that employment is m issue here
"As amended at one point dung the hearing, the complaint's
allegations of specified dates of discrimination against Bean did not include
March 18 and 19, but a later motion to amend the complaint to conform
to the evidence had the eflect of including these two dates in the complaint
as amended A claim of discrimination on the two dates is also reflected in
the General Counsel's brief
"The stipulation is embodied in the following colloqy
Mr. Slall ( for the General Counsel )- May we assume , unless there is a
NEW TRUCK TRANSPORT, INC.
In the course of the reading procedure, the General
Counsel stated. "There are no payroll record cards, and
apparently no work, for Bean for March 15, 16, 17, 18,
19. 20. 21, 22, 23, 24" (emphasis supplied). This was
followed by information taken from the records to the
effect that Bean worked on March 25, earning 527.50;
March 26, earning $15: and March 27, earning $56.88.
and that he had no work on March 28.
The assertion that there was "apparently no work" for
Bean on 10 days beginning with March 15 will not do as
evidence that he had no work on those days, for, plainly,
the stipulation did not extend to a concurrence by the
Respondent in the General Counsel's conclusion as to the
"apparent" meaning of the lack of cards for the 10 days.
Indeed, 1-orrest Cagle testified, without dispute, that the
absence of a card for a given date for a driver does not
necessarily mean that he did no work that day, for on
long trips, such as one taking eight days, for example, the
time will be reflected on one card.
To cap the matter, there is hard evidence that Bean
earned over $280 for the week beginning on March 18 and
ending with March 24, and it may fairly be inferred from
the size of the sum that he worked substantially the entire
workweek. His earnings, in fact, were so large for the
week that a finding that the Company discriminated
against him during the 7 day period would not only do
violence to the record but border on absurdity.
That view of the matter is reenforced. rather than
diminished, by the evidence that Bean's earnings fir the 3
day period consisting of March 25, 26. and 27 amounted
to about S100. a sum substantially more than that of any
of the 5 nonunion drivers, except Byers, earned for the 3
days.
What remains is a determination whether the Company
discriminatorily withheld work from Bean on March 15,
16. 17, and 28. The only possible basis for a finding that
he had no work on March 15, 16, and 17 is the fact that
he earned the relatively small sum of S27 90 for the week
ending March 17. In the state of the record, it would be
something of a guess to say on which days of that week he
was given no work. But assuming that he had little or no
work on March 15. 16, and 17, it is a far leap from that
to a conclusion that his work volume during the period
was the product of unlawful discrimination. The fact of
Bean 's large earnings for the 10-day period immediately
following the three days would of itself go far to negate
such a conclusion
In addition, there is no evidence that Bean was
available for work on March 15, 16, 17, and 28. It does
not appear that Clinton Cagle's admonition, on the night
of the restaurant discussion, not to "call" the Company
for work preceded these dates, and the other instructions
to drivers not to come to the premises for work unless
called were issued in April. In short, for all that appears,
prior to these admonitions, Bean habitually reported at
the premises in quest of work, and was not given any
assignment on the days in question because of some
indisposition or other reason that rested with him.
Summarizing the matter, the record does not establish
unlawful discrimination against Bean, and thus I shall
recommend dismissal of so much of the complaint as
alleges it "
question , that if I continue in this manner (reading from the Company's
timecards ) that they are correct, that since Mr. Wilson (Respondent's
counsel ) is examining the cards, they are correct if there is no
disagreement , and that they are as stated'
Mr Wilson: Silence will be assent.
555
IV. THE EFFFCTS 01' THE UNFAIR PRA('TICFS UPON LABOR
COMMERCE
The activities of the Respondent set forth in section 111,
above, occurring in connection with the operations of the
Respondent described in section 1, above, have a close,
intimate, and substantial relation to trade. traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce
V. Tilt' RIMPDY
Having found that the Company has engaged in unfair
labor practices violative of Section 8(a)(1) and (3) of the
Act, I shall recommend below that it cease and desist
from such unfair labor practices and take certain
affirmative actions designed to effectuate the policies of
the Act.
In view of the nature and extent of the unfair labor
practices committed, and in order to make effective the
interdependent guarantees of Section 7 of the Act, I shall
recommend an order below which will in effect require the
Respondent to refrain in the future from abridging any of
the rights guaranteed employees by said Section 7 'Z
Having found that the Company, in violation of Section
8(a)(1) and (3) of the Act, discriminatorily withheld work
assignments from William 0 Shuff, Thomas A.
O'Hcaron, James C. Johnson, Henry M. Chayrez, and
Claudino Rivera during the periods of' discrimination
respectively found for them above, I shall recommend that
the Company make each such person whole for any loss
of pay he suffered by reason of the said failure to give
him work during the period of discrimination against him,
as found above, together with interest thereon as provided
below: and that the said loss of pay be computed in
accordance with the formula and method prescribed by
the Board in F W Woolworth C'ompanv, 90 NLRB 289,
together with interest on the said loss at the rate of 6
percent per annum as provided in Isis Plumbing &
Heating Co., 138 NLRB 716, to which cases the parties to
this proceeding are expressly referred.';
Conclusions of Law
Upon the basis of the foregoing findings of fact, and
upon the entire record m this proceeding, I make the
following conclusions of law:
1. The Company is, and has been at all material times.
an employer within the meaning of Section 2(2) of the
Act.
2. The Union is, and has been at all material times, a
labor organization within the meaning of Section 2(5) of
the Act.
3. By discriminatorily withholding work assignments
from William O. Shuff, Thomas A. O'I-Iearon. James C.
Johnson, Henry M. ChayreL and Claudino Rivera, as
found above, the Company has engaged in unfair labor
practices within the meaning of Section 8(a)(3) of the Act.
4. By interfering with, restraining, and coercing
employees in the exercise of rights guaranteed them by
"Unlike the General Counsel, I sec no significance in the fact that
Good, in the course of his testimony, acquiesced in a suggestion put to him
by the General Counsel that he (Good) "knew that Johnson, O'Hearon and
Bean ran around together "
"N.L R B v Entwistle Manufacturing Co. 120 F 2d 532 (C A. 4), May
Department Stores v. N L R B. 326 U S 376, Bethelehem Steel Company
v NLRB.. 120 F 2d 641 (C A D.C.).
"There is no issue of reinstatement involved here
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 7 of the Act, as found above, the Company has
engaged in unfair labor practices within the meaning of
Section 8(a)(I) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Sections 2(6) and (7) of the Act.
6. The record does not establish that the Company
withheld work from, or otherwise discriminated against.
Robert Bean in violation of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law , and upon the entire record in this
proceeding, I recommend that New Truck Transport, Inc.,
its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership of its employees in The
Transport & Local Delivery Drivers, Warehousemen &
Helpers, Local Union 104, or in any other labor
organization, by discharging, laying off, denying work to,
or withholding work from, any employee, or in any other
manner discriminating against any employee in regard to
his hire, tenure of employment or condition of
employment.
(b) Interrogating any of its employees as to any
employee's activities, membership or interest in. support
of, or adherence to, any labor organization, in a manner
constituting interference , restraint or coercion , in violation
of Section 8(a)(1) of the Act
(c) Threatening, warning, or in any manner otherwise
informing, any employee that it will go out of business, or
discontinue, shut down or otherwise curtail any business
operation, or lease, sell or otherwise dispose of any of its
equipment, or lay off, discharge or otherwise withhold
work from, any employee, because any employee has
engaged, or engages, in activity in, or on behalf of, any
labor organization, or supports, or has supported, any
such organization.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to
sell-organization, to form, join. or assist any labor
organization; to bargain collectively through
representatives of their own choosing, to engage 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 actions which, I find.
will effectuate the policies of the Act
(a) Make William O. Shuff. Thomas A. O'Hearon,
James C. Johnson. Henry M. Chayrez, and Claudino
Rivera whole in the manner and according to the method
set forth in section V, above, entitled "The Remedy."
(b) Preserve until compliance with any order for
backpay made by the National Labor Relations Board in
this proceeding is effectuated, and make available to the
said Board and its agents, upon request, for examination
and copying, all payroll records, social security records,
timecards. personnel records and reports, and all other
records relevant to a determination of the amount of
backpay due under any such order.
(c) Post in conspicuous places at the Company's place
of business in Phoenix , Arizona, including all places where
notices to employees are customarily posted, copies of the
attached notice. Copies of the said notice to be furnished
by the Regional Director for Region 28 of the National
Labor Relations Board, shall, after being duly signed by
an authorized representative of the Company, be posted
by it immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in such
conspicuous places. Reasonable steps shall be taken by the
said Company to insure that §aid notices are not covered,
altered, or defaced by any other material."
(d) Notify the said Regional Director, in writing, within
20 days from the date receipt of a copy of this Decision,
what steps the Respondenthas taken to comply therewith 35
IT IS FURTHER RECOMMENDED that so much of the
complaint be dismissed as alleges that the Company
violated the Act by discriminating against Robert Bean
In the event that this Recommended Order is adopted by the National
Labor Relations Board, the words "a Decision and Order " shall be
substituted for the words "the Recommended Order of a Trial Examiner"
in the notice In the additional event that the Board 's order is enforced by
a decree of a United States Court of Appeals , "a Decree of a United
States Court of Appeals Enforcing an Order" shall be substituted for the
words "a Decision and Order."
"In the event that this Recommended order is adopted by the Board,
par 2 (d) thereof shall be modified to read "Notify the said Regional
Director, in writing, within 10 days from the date of this Order , what steps
the Respondent has taken to comply therewith "
APPENDIX
NOTICF TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that
After a hearing at which all sides had an opportunity
to present evidence and state their positions, the
National Labor Relations Board found that we have
violated the National Labor Relations Act, and ordered
us to post this notice.
The Act gives employees the following rights:
To engage in self-organization.
To form, join or assist any union;
To bargain collectively through representatives of
their own choice;
To engage in activities together for the purpose of
collective bargaining or other mutual aid or
protection;
To refrain from the exercise of any or all such
rights
WE WILL NOT threaten to lay off, discharge, or punish
any employee. or to go out of business, or to lease or
sell any of our trucks or other equipment, because any
employee has exercised any of such rights.
WE WILL NOT lay off, discharge, punish, or withhold
any work from any employee, because any employee
has exercised any of such rights.
WE WILL NOT ask any employee any questions about
the exercise of any of such rights in any manner that
might interfere with such exercise.
WE WILL NOT in any other manner interfere with
any employees' exercise of any of such rights.
The National Labor Relations Board has found that we
discriminated against William O. Shuff, Thomas A.
O'Hearon, James C Johnson, Henry M Chayrez, and
Claudino Rivera by withholding work from them in
violation of the Act, and has ordered us to reimburse
them for any loss of pay they suffered because of such
discrimination.
NEW TRUCK TRANSPORT, INC. 557
WE WILL, therefore , reimburse each of these This notice must remain posted for 60 consecutive days
employees for such loss of pay, together with interest from the date of posting and must not be altered , defaced,
thereon , in accordance with the Board ' s Order. or covered by any other material.
NEW TRUCK TRANSPORT, If employees have any question concerning this notice
INC. or compliance with its provisions they may communicate
(Employer ) directly with the Board ' s Regional Office, 7011 Federal
Dated By Building & U.S. Courthouse , 500 Gold Avenue,SW.,
( Representative ) (Title ) Albuquerque, New Mexico , Telephone 843-2555.