Stafford Trucking, Inc.

National Labor Relations Board - Board Decisions

Jul 28, 1967

166 N.L.R.B. 894 (N.L.R.B. 1967)

894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stafford Trucking, Inc. and Drivers , Salesmen,
Warehousemen, Milk Processors , Cannery, Dairy
Employees and Helpers Union Local No. 695, af-
filiated with International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of
America. Case 30-CA-416
July 28, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On March 28, 1967, Trial Examiner Ivar H.
Peterson issued his Decision in the above-entitled
case, finding that the Respondent had engaged in
certain unfair labor practices within the meaning of
the National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. He further
found that Respondent had not engaged in certain
other unfair labor practices alleged in the complaint
and recommended that such allegations be dis-
missed. Thereafter, the Respondent filed excep-
tions to the Trial Examiner's Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
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
brief, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommenda-
tions 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 Recom-
mended Order of the Trial Examiner, and hereby
orders that the Respondent, Stafford Trucking,
Inc., Portage, Wisconsin, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
IVAR H. PETERSON, Trial Examiner: Upon charges and
amended charges filed on June 20 and July 18, 1966, by
Drivers, Salesmen, Warehousemen, Milk Processors,
Cannery, Dairy Employees and Helpers Union Local
166 NLRB No. 107
No. 695, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, the General Counsel
of the National Labor Relations Board, by the Regional
Director for Region 30, on September 19, 1966, issued
an amended complaint against Stafford Trucking, Inc.,
herein called the Respondent, alleging that the Respond-
ent had engaged in unfair labor practices violative of
Section 8(a)(1), (3), and (5) of the National Labor Rela-
tions Act, as amended, herein called the Act. More
specifically, the complaint charged that the Respondent
had interfered with the self-organizational rights of its em-
ployees by interrogating an employee concerning his
union membership, activities, or desires, and had on two
occasions threatened an employee with physical harm
and discharge because of his membership and activities
on behalf of the Union; had unlawfully refused to bargain
with the Union, the certified and exclusive representative
of its employees in an appropriate unit, by the foregoing
conduct and by unilaterally changing wage rates and
withdrawing recognition from the Union; and had refused
to reinstate employees who unconditionally offered to
return to work after engaging in a strike caused and pro-
longed by the Respondent's unfair labor practices. In its
answer, the Respondent-denied the commission of any
unfair labor practices.
Pursuant to notice, a hearing was held before Trial Ex-
aminer Ivar H. Peterson at Portage, Wisconsin, on Oc-
tober 25, 1966, at which all parties were represented and
afforded full opportunity to participate. Oral argument
was waived at the conclusion of the hearing; briefs sub-
mitted by the General Counsel and the Respondent have
been considered.
Upon the entire record in the case, and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Wisconsin corporation, with its
principal office and place of business in Elm Grove, a
suburb of Milwaukee, Wisconsin, and a dispatch office
and garage at Portage, Wisconsin, is engaged in the busi-
ness of local and interstate hauling by truck. During the
past year, a representative period, the Respondent
received in excess of $50,000 for furnishing interstate
transportation of various materials including silica, and in
excess of $50,000 for trucking services performed within
the State of Wisconsin for firms engaged in interstate
commerce.
The Respondent admits and I find that it is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act, admitting to membership em-
ployees of the Respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
This is the third in a series of cases involving the
Respondent and the Union. Because the earlier
STAFFORD TRUCKING, INC. 895
proceedings , herein referred to as Stafford I and Stafford
II, constitute relevant background to a clearer un-
derstanding of the events with which we are here con-
cerned, and since the General Counsel has alleged in the
complaint that the strike which began on June 20, 1966,
was in part caused and prolonged by the unremedied un-
fair labor practices found by the Board in the prior cases,
it is necessary to summarize briefly what was involved in
and the outcome of these earlier proceedings.
In Stafford I, decided on January 15, 1965 (Stafford
Trucking , Inc., 150 NLRB 1036), the Board found that,
during the Union 's organizational campaign which began
in June 1963 and resulted in a Board -conducted election
in September of that year , the Respondent violated Sec-
tion 8(a)(1) of the Act by interrogating and threatening
employees because of their union activity and by
threatening more strict enforcement of company rules
and discharge for any infraction thereof if the Union
became the bargaining representative . The Board further
found that the Respondent discriminatorily discharged
employees Frederick Lowitz and Daniel Immel and dis-
criminatorily denied recall to employee Raymond
Toivonen . The customary cease-and -desist order was en-
tered , and approprite affirmative action directed. I The
Board ' s Order, except as to Toivonen , was enforced by
the United States Court of Appeals for the Seventh Cir-
cuit on April 19, 1966. N.L.R .B. v. Stafford Trucking,
Inc., 359 F.2d 829 (C.A. 7).
Stafford II primarily involved the alleged unlawful
discharge of Becker and Immel on January 30, 1964, fol-
lowing their rehire in August and November 1963,
respectively . Additionally , in that case the Respondent
was charged with refusing to bargain collectively with the
Union, following its certification on January 8, 1964, as
the exclusive representative of the Respondent's
truckdrivers and mechanics . The Board 's decision in
Stafford II, issued on September 17, 1965 (Stafford
Trucking , Inc., 154 NLRB 1309), found that the Re-
spondent had discriminated against Becker and Immel
and, by unilaterally instituting an insurance program in
March 1964 , without bargaining on that subject with the
Union , had violated Section 8(a)(5) and ( 1) of the Act.
In addition to directing the reinstatement with backpay
of Becker and Immel, the Board ordered the Respondent
to cease and desist from unilaterally "instituting changes
in insurance programs or in other terms and conditions
of employment" and directed that the Respondent, upon
request, bargain with the Union "with respect to insur-
ance programs and other terms and conditions of employ-
ment and , if an understanding is reached , embody such
understanding in a signed agreement ." The Board 's Order
in Stafford II was enforced in full by the court of appeals
on December 27, 1966 . N.L.R.B . v. Stafford Trucking,
Inc., 371 F . 2d 244 (C.A. 7).
On September 21, 1965, 4 days after issuance of the
Board 's Decision in Stafford II, Donald Eaton, secretary-
treasurer and representative of the Union , wrote to Jack
Stafford , the Respondent's president and principal owner,
requesting that pursuant to the Board's Decision and
Order the parties "begin bargaining immediately concern-
ing wages and working conditions for the employees in
the bargaining unit found appropriate." Eaton received no
reply from the Respondent and he made no attempt to
pursue the matter further with the Respondent between
then and the beginning of the strike on June 20, 1966.
Eaton testified that he did not contact Stafford further
after the September 21 letter because "it was futile ...
unless we were able to exert some economic pressure" on
the Respondent or "until either the courts or the Board or
somebody made them meet in good faith."
B. Alleged Interrogation and Threats
Early in June 1966, following enforcement by the court
of appeals of the Board's Order (as modified) in Stafford
I on April 19, 1966, the Respondent posted the required
notice. Shortly thereafter Thomas Borchert, one of the
Respondent's truckdrivers, called Eaton, the Union's
representative, and stated that the employees wanted to
have a meeting with the Union to see about getting a con-
ract with the Respondent. In another telephone conversa-
tion a couple of days later between Borchert and Eaton a
meeting was arranged for Saturday night, June 18, at a
hotel in Portage.
During the evening of Tuesday, June 14, Borchert and
two other employees, Norbert Gross and Ralph Turner,
had a conversation at the Respondent's garage. Accord-
ing to Gross, Borchert announced that there was to be a
union meeting on the following Saturday night.2 While the
three were conversing Wilcy Stafford, Respondent's
dispatcher and the son of Jack Stafford, came to the yard.
Turner, who had indicated to Gross and Borchert that he
did not want a union and was satisfied with working 60 or
more hours per week, went out of the garage and was ob-
served by Borchert, as he left to go to the sandpit to load,
standing with Wilcy Stafford. Before Gross went to the
pit, Wiley Stafford came to him and asked what Borchert
had been telling him. Gross testified he told Stafford that
Borchert had said there was to be a union meeting on
Saturday night, and Stafford commented that that was
news to him. At the sandpit Gross told Borchert what
Stafford had asked and what he, Gross, had answered
The General Counsel contends that the foregoing inter-
rogation of Gross by Wilcy Stafford was violative of the
Act. While I find that Stafford, the Respondent's
dispatcher, is a supervisory employee,3 I perceive
nothing coercive in the inquiry he made of Gross. All that
appears is that he asked Gross what Borchert had told
him. The testimony of Gross does not indicate that Staf-
ford's question sought to ascertain anything respecting
the "union membership, activities, or desires" of Gross,
as alleged in the complaint. Perhaps one might speculate
that Stafford had knowledge of the union meeting, ob-
tained from Turner or other sources, and was attempting
to find out what Gross' views were or the extent of
Borchert's involvement. However, the record does not
' The Board dismissed the allegation that employee Donald Becker had
been discriminatorily discharged, reversing the Trial Examiner's conclu-
sion in this respect.
2 Borchert, however, testified that it was Gross who made the state-
ment that there was to be a union meeting and that he (Borchert) said
nothing I credit Gross ' version, as he impressed me as a more reliable
witness than Borchert and his account is more consistent with the earlier
role of Borchert in arranging the meeting . Moreover, Borchert's affidavit
of June 21 states that he asked Gross and Turner "if they heard there was
going to be a union meeting" on Saturday
3 The record shows, and I find, that Stafford hired Gross, sets up
schedules for the truckdnvers, and personally or by written messages left
at the garage tells them what equipment to use, where to deliver, and the
grade of sand to deliver. In his absence, Jack Stafford, whose headquar-
ters are some 90 miles from Portage, takes over his son 's duties. Wilcy
Stafford did not testify.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
support either inference. I conclude that the allegation of
unlawful interrogation has not been proven , and ac-
cordingly will recommend that it be dismissed.
During the night of June 14-15 Borchert first made a
delivery to Madison, Wisconsin. He returned to Portage
about 3 a.m. and took a load of sand to Liberty Foundry,
in Milwaukee. As he was pulling into the driveway at
Liberty Foundry, at approximately 5.30 a m , Jack Staf-
ford drove up. According to Borchert, Stafford came over
to the unit as Borchert began to discharge the load and
"started cussing me out and swearing at me," accused
him of maintaining his unit in a "filthy" condition and of
wanting the best runs and the best equipment, checked
the pressure in the tires and complained about the condi-
tion of one tire that had a "dog bite" out of it At one
point , so Borchert testified , Stafford "took off his glasses
and hat and coat and put them in the truck and threw his
fists up in the air and ... says he wanted to fight."
Borchert asked whether Stafford was trying to discharge
him, and Stafford said he was. Stafford did not strike
Borchert.
Stafford testified that the evening of June 14 he
received a report from his son Wiley, by telephone, that
Borchert, according to information furnished Wiley by
employee Humber, had used vulgar language to an offi-
cial of Wehr Steel while making a delivery. Stafford
testified that he ascertained from his son where Borchert
was to make deliveries that night and went to Liberty
Foundry to reprimand Borchert for using vile language to
a customer. When Stafford came to the unit he first up-
braided Borchert for the dirty condition of the equipment
and then asked about "the filthy language that he used"
at Wehr Steel. By Stafford's account, Borchert then
"started shooting his mouth off and I got angry, I really
got angry, and I took my coat off and I took my specs off
and I said, I want to find out what makes you tick "'
On his way back to Portage Borchert telephoned Eaton
and reported the incident at Liberty Foundry. When he
returned to the garage he asked Wilcy Stafford why Jack
Stafford "was down there harrassing me is it because
of the union meeting ?" Wiley Stafford, according to
Borchert's undenied testimony, "said he didn't know
there was even going to be a union meeting," to which
Borchert replied, "You know better than that .. Gross
told you last night."
As to the Wehr Steel incident, Borchert on cross-ex-
amination denied that this was mentioned during his en-
counter with Jack Stafford. However, it fairly appears
that Borchert had told employees Devoy and Huber, at
a time not fixed in the record, that he had had to wait at
Wehr Steel about 2 hours to get unloaded but he denied
having used or stating that he had used vulgar language to
the Wehr Steel employees. Employee DeVoy testified
Borchert had stated he had used such language in telling
the Wehr Steel employee how long he expected to be
there, but DeVoy was vague as to when this incident oc-
curred-first stating it was in April, then in May. DeVoy
additionally testified he made no report of Borchert's re-
marks, Huber did not testify.
The General Counsel contends that Jack Stafford's
conduct toward Borchert at Liberty Foundry on the
morning of June 15 constitutes harrassment of an em-
ployee because of his union activity and hence is violative
4 After the incident with Borchert , Stafford, so he testified, unsucess-
fully attempted to check with someone at Wehr Steel to find out whether
of Section 8(a)(1). So far as the record shows, the only
union activity in which Borchert had engaged up to that
point was arranging by telephone with Eaton for a union
meeting on Saturday night , June 18, and advising em-
ployees Gross and Turner of the meeting while the three
of them were conversing in the garage the evening of June
14 Shortly thereafter, in answer to Wiley Stafford's
inquiry as to what Borchert had told him, Gross informed
Wilcy that Borchert had said there would be a union
meeting Saturday night. According to Jack Stafford, his
son Wiley telephoned him that same evening to report
that Borchert had used vulgar language to an employee of
Wehr Steel. I infer that Wiley told his father during the
evening of June 14 of the upcoming union meeting and
identified Borchert as the employee promoting it. I do not
credit Jack Stafford's testimony that the reason for his
confronting Borchert the morning of June 15 was because
of a report he had received the night before about
Borchert's conduct at Wehr Steel. His testimony in this
regard is not only self-serving but wholly uncorroborated.
His demeanor in testifying left me with the distinct im-
pression that he was motivated by a deep hostility toward
Borchert. He refused, moreover, on three occasions to
respond to questions on cross-examination, until his
counsel admonished him. I conclude that Stafford's con-
duct toward Borchert the morning of June 15 was
prompted by Borchert's role in renewing interest in the
Union among the employees and his apparent connection
with the union meeting to be held the night of June 18,
and was therefore violative of Section 8(a)(1) of the Act.
At the union meeting on June 18, the II or 12 em-
ployees present voted to strike the Respondent. Picketing
began about 8 p m. on Monday. June 20, at the Respond-
ent's garage, and the strike continued until July 10 or 12
On June 23 Borchert was at the picket line with several
other strikers. According to Borchert, Jack Stafford
drove a truck into the driveway in such manner that
Borchert, who was "standing on the public side of the
driveway," had tojump out of the way to avoid being hit
Stafford parked the truck at the garage and then, so
Borchert testified, came running toward Borchert and
with profanity said, "I'll kill you yet " Stafford's version
is that as he was turning into the entrance of the
driveway, going about 10 miles per hour, Borchert
jumped in front of the truck, causing Stafford to apply the
airbrakes and bring the vehicle to a complete stop. Im-
mediately after parking the truck, according to Stafford,
he went back. to the picket line, "mad and ... shaking,"
and told the pickets "there'll be no more of this . . I'm
going to call the sheriff."
The General Counsel contends that Stafford's unde-
nied threat to Borchert-"I'll kill you yet," as Borchert
testified-is violative of Section 8(a)(1) Viewed in proper
context, I do not regard this incident as being an inter-
ference with the Section 7 rights of Borchert, even assum-
ing Stafford made the statement attributed to him by
Borchert. My assessment of the testimony of Borchert
and Stafford, neither of whom impressed me as an espe-
cially trustworthy witness, is that each was prone to
minimize his own responsibility for the incident and to ex-
aggerate the provocative or hostile action of he other. The
truth, I am persuaded, lies somewhere between their
respective versions. I am convinced that Borchert
or not Borchert had used vulgar language
STAFFORD TRUCKING, INC. 897
deliberately delayed getting out of the path of the truck
until Stafford was so close that he brought the truck to a
halt by applying the airbrakes . I reject the testimony of
Stafford that Borchert jumped in front of the truck as well
as the clear implication of Borchert 's account that Staf-
ford was attempting to run him down . I find that
Borchert 's provocative conduct in attempting to block
entry into the driveway caused Stafford to fly into a rage
and to say, in anger and with profanity , "I'll kill you yet."
In the circumstances , I do not view this statement as a
threat to inflict physical injury upon Borchert for engag-
ing in any activity protected by Section 7 of the Act. Ac-
cordingly, this allegation will be dismissed.
C. The Refusal to Bargain; the Strike
As recited above, in Stafford II, decided September
17, 1965, the Board found that in 1964, following certifi-
cation of the Union in January of that year, the Respond-
ent had unlawfully refused to bargain with the Union.
The Respondent did not comply with the board's
direction that it bargain and, at the time of the hearing in
the current case, the Respondent was resisting enforce-
ment of the Board 's bargaining order in that proceeding.
On December 27, 1966, the court of appeals enforced the
Board 's Order which directed that, among other things,
the Respondent bargain in good faith with the Union "as
the exclusive bargaining representative of its employees
in the unit found to be appropriate, with respect to in-
surance programs and other terms and conditions of em-
ployment, and , if an understanding is reached , embody
such understanding in a signed agreement."
Following the Board's decision in Stafford II, the
Union on September 21, 1965, wrote the Respondent
requesting that bargaining negotiations , in compliance
with the Board 's Order, be commenced . The Respondent
did not reply. On March 15, 1966, as stipulated by the
parties, the Respondent increased the wages of its drivers
from $2.50 to $2.75 per hour . There was no bargaining
with , or notification to, the Union regarding the increase.
About the first week in June 1966, the Respondent
posted the notice required by the decision of the court of
appeals, entered April 19, 1966, enforcing , as modified,
the Board's 8(a)(1 ) and (3) Order in Stafford 1.5
Employees read the notice and discussed among them-
selves the possibility of obtaining a collective-bargaining
agreement. In consequence , the union meeting of June 18
was arranged.
What occurred at the union meeting, attended by 11 or
12 employees, is fairly summarized in the following
credited testimony of Eaton, the Union' s representative:
Q. All right. Will you tell us that you"said at this
meeting and what occurred at the meeting?
A. Well, I told the employees that I'd been deal-
ing with Jack Stafford for a long time, ... and he was
almost impossible to deal with. I told them about the
previous unfair labor practice charges ... about the
fact he currently had been ordered by the 7th Circuit
Court of Appeals to pay backpay amounting to sev-
eral thousand dollars to a couple of employees . . .
and they had been previously ordered . . . by the
Board to bargain with this union , that we'd had a
number of meetings with Mr. Stafford and his coun-
sel to try and negotiate a contract and hadn't been
successful , that Jack had continuously flaunted the
labor law ... and that any attempt to correct these
things and finally get an agreement with him was
going to be very difficult. I think I went over that any
number of times with the people to try to impress
upon them that any kind of an argument with Jack
Stafford was going to be a long one and a difficult
one.
During the course of the meeting the subject of the
notice that was posted came up , I read portions of
the notice or practically all of the notice , I guess...
Well, there were comments made like, well, he can't
fire us because of this notice, he can 't give us a bad
time about the union because this notice is up there,
things like that . I told them that regardless of this
notice I would expect Stafford to do most anything
including possibly discharges.
At that point somebody said they hadn't been able
to see all the notice , so I questioned them as to how
it was posted. They told me it was posted so they
couldn 't see Jack's signature , there apparently was
another page underneath it. Somebody said he had
taken the thumbtacks out and looked and Jack made
him put them back. I told them I thought that was a
further violation of the order and I would report it,
that probably the only way Jack Stafford would ever
comply with these orders was if finally the Court
held him in contempt and either fined him or jailed
him.
They wanted to know how they could go about
getting a contract . I told them they would have to,
probably the only way they could do it is to strike
Jack and if they thought the group they had there was
large enough to strike the company and bring him to
his knees at that point we might be able to get a con-
tract . I also explained to them that a strike of this
kind based upon the previous orders to bargain and
upon his failure to pay the backpay to these people
involved here, Lowitz and Immel ... and because of
the incident at Liberty Foundry involving Borchert
and the improper posting of this notice, that this
could be an unfair labor practice strike and explained
to them the significance of an unfair labor practice
strike was that in the event it was unsuccessful they
couldn 't be permanently replaced and that Stafford
would have to give them their jobs back.
The group discussed the timing of a strike , Eaton urg-
ing that because he and other union agents were to be
away attending a convention and unavailable to assist the
employees , a strike not be called immediately. Eaton also
suggested it would be advantageous to wait until foun-
dries were again in operation and in need of trucking ser-
vices following the customary shutdown for a week or
two around the Fourth of July. However , the employees
indicated, so Eaton testified, that "they thought a strike
would be successful at that point." Thereupon, Eaton told
them they should sign union application cards and pay
their initiation fees and dues, and take a secret-strike bal-
lot. Application cards were filled out and some of those
present paid their initiation fees and dues . A secret ballot
was taken, resulting in a vote of 10 to 0 in favor of strik-
ing.
5 It appears, however, that for about 10 days the notice, consisting of the second page in such fashion that the second page could not easily be
two pages , was improperly posted in that the first page was fastened over read
898 DECISIONS OF NATIONAL
During the discussion Becker, who had been involved
as an alleged discriminatee in both of the earlier unfair
labor practice cases, told the employees that, from his ex-
perience with Stafford, Eaton "wasn't giving them any
baloney," that Stafford "would fight just as hard as possi-
ble and would do anything possible to avoid signing a con-
tract or ever having anything to do with the union."
Picketing began on Monday evening, June 20. The
record is not clear how many of the 18 or 19 unit em-
ployees participated in the strike. The Respondent con-
tinued to operate , and during and following the strike,
which ended on July 10 or 12, some of the strikers
returned to work. The record does not show when, or in
what numbers, replacement workers were employed.
On July 15 Eaton sent a telegram to Walter Davis,
counsel for the Respondent , making unconditional appli-
cation on behalf of the striking employees for reinstate-
ment to their former or substantially equivalent jobs, stat-
ing that they would report for work at the usual time on
July 19. Davis replied the same day, stating the Respond-
ent then had no positions available, but that "former
strikers will be called if and when positions become
available."s Also on July 15 Eaton sent a second tele-
gram to Davis stating that the Union demanded "that all
replacements be immediately terminated in order to give
returning strikers the available work" and that Davis
should contact Eaton "when you are prepared to reinstate
any of the men." Davis replied by letter dated July 22,
noting also that the Union had filed a first amended
charge (on July 18) alleging the unlawful refusal to rein-
state strikers . His letter continued:
If the Company is to give any consideration to
your insistence that strikers be reinstated, we will
have to have from you a statement answering the fol-
lowing questions:
1. What unfair labor practice allegedly committed
by the Company caused or prolonged the strike? We
are advised that the sole reason the employees were
induced to go on strike was that they were told that
by doing so "we would have Stafford exactly where
we want him; he'll have to come down to Madison on
his knees and sign the contract."
2. Who communicated, when and how, to Staf-
ford that the strike was to bring about an adjustment
of a grievance or unfair labor practice? The only con-
tact which the Company had with any representative
of the Union during the strike was your telephone
call to me on June 21, 1966, the main purport of
which was to advise me there was a strike, ask if I
had talked to Stafford to which I said, "No," and in-
form me that "every dog has its day."
3. What contract or offer of contract or proposal
was communicated to Stafford immediately prior to
or during the strike? As related above, the Company
knows of none.
We are awaiting comment from you.
Eaton replied to Davis on August 1, as follows:
We are in receipt of your letter of July 22. We see
no reason to participate in a letter-writing effort nor
do we feel compelled to respond to all of the factual
errors and distortions contained in your letter.
6 Without identifying to whom reference was being made, Davis' tele-
gram further stated that "strikers who caused or threatened physical
LABOR RELATIONS BOARD
If your correspodence is intended to convey the
hint that Mr. Stafford is now "good and ready" to
meet and negotiate in good faith with the Union, we
are pleased with his change in attitude and ask that
you notify us as to his earliest availability for a meet-
ing. Likewise, if Mr. Stafford is now prepared to rein-
state the strikers and, if necessary , dismiss the
replacements , then we suggest he do so.
On August 23 Eaton wired Davis requesting "recon-
sideration" of the Respondent 's "refusal to negotiate"
and stating it was "imperative that we reach agreement
on" reinstatement of strikers "as well as labor agree-
ment."
Davis answered on August 29, at some length. He de-
nied that the Respondent had refused to negotiate with
the Union, recalling that at the hearing in Stafford lI in
January 1965 Eaton had testified that the last meeting
between the parties was on June 2, 1964, and stating that
meetings subsequently scheduled between then and mid-
September 1964 had been canceled by Eaton. His letter
continued:
I assume that your telegram of August 23, 1966,
is calculated to build some sort of a case by pulling
on your own bootstraps. Stafford Trucking, Inc. has
advised you of its position with respect to reinstate-
ment of the employees whom you induced to go on
strike. If those employees who struck and were
replaced want to work for Stafford Trucking, Inc.
again in the future, they should get word to Mr. Staf-
ford, advising him of such fact and leaving their
names, addresses, and telephone numbers where
they can be reached, so that they can be called if an
opening develops. You can collect the information if
you want to and send it to me. Those strikers who did
apply to come back to work before they were
replaced, came back to work. Presumably openings
will develop in the future just from the normal
turnover of personnel.
So that this case you may be attempting to
fabricate can be complete, this is also to advise you
that your request to negotiate a labor agreement,
which was received on August 23, 1966, is now too
late, as Stafford Trucking, Inc. is certain that you do
not represent a majority of its employees as of this
date. Accordingly, the Company will not commit an
unfair labor practice by dealing with an organization
which does nol represent a majority of its employees
in an appropriate unit for collective bargaining.
As of this moment the facts of life do not indicate to
us that you presently hold any rights which impose
any obligations upon Stafford Trucking, Inc.
D. Concluding Findings
I agree with the General Counsel that the unilateral
wage increase granted employees in the bargaining unit as
of March 15 , 1966, without bargaining or consultation
with the Union, constitutes a violation of Section 8(a)(5)
of the Act. I further find that the withdrawal of recogni-
tion from the Union on August 29, 1966, was similarly
violative of Section 8(a)(5). Although substantially more
damage to persons or property during strike need not apply "
STAFFORD TRUCKING, INC. 899
than a year had elapsed between the Union's certification
as exclusive representative on January 8, 1964, and these
events of March and August 1966, in the circumstances
of this case the lapse of the certification year is unavailing
to the Respondent as a defense. As found by the Board in
Stafford 11, and sustained by the court of appeals, the
Respondent engaged in conduct in derogation of its col-
lective-bargaining obligaion 2 months following certifica-
tion of the Union. Also, prior to the Union's certification,
as established in Stafford I, the Respondent had engaged
in substantial unfair labor practices. From the cessation of
bargaining negotiations in June 1964 until the Respond-
ent withdrew recognition from the Union on August 29,
1966, the bargaining relationship had been suspended by
litigation of the Respondent's unfair labor practices. As
the Supreme Court has said, "A bargaining relationship
once rightfully established must be permitted to exist and
function for a reasonable period in which it can be given
a fair chance to succeed."7 And, the duty to bargain even
though the certification year has expired, continues to
exist "for a reasonable period of time exclusive of the
period during which the bargaining relationship was
suspended by litigation of the Company's unfair labor
practices."9 I conclude and find that at all times here
material the Union was, and now is, the exclusive
representative for the purposes of collective bargaining of
the Respondent's employees in the unit heretofore found
appropriate and that the Respondent, by unilaterally in-
creasing wages in March 1966 and by withdrawing recog-
nition from the Union on August 29, 1966, violated Sec-
tion 8(a)(5) and (1) of the Act.
The question remains whether the strike which began
on June 20, 1966, was an economic or an unfair labor
practice strike. The General Counsel argues that while
the strike "was designed to secure a contract," the fact
that "failure to get that contract earlier had been frus-
trated by Respondent's unfair labor practices" necessari-
ly leads to the conclusion that these unfair labor practices
"played a contributory role in bringing about the decision
to strike." On the other hand, counsel for the Respondent
contends that the strike "was caused by the desire of cer-
tain of Respondent's employees to obtain a labor con-
tract," and that there is no basis in the record to infer
"that the employees' decision to strike was in any way to
protest either the alleged unfair labor practices which had
occurred previous to the strike and are being litigated in
this case, or the Board-determined unfair labor practices
which had occurred more than two years before."
I am persuaded that the Respondent's unremedied un-
fair labor practices were a substantial contributing factor
in bringing about the decision to strike. These violations
were brought to the attention of the employees at the June
18 meeting by Eaton in order to emphasize that, in his
view, Jack Stafford "had continuously flaunted the labor
law" and that "to correct these things and finally get an
agreement with him was going to be very difficult." When
some employees expressed the view that the notice the
Respondent had recently posted as a result of the court's
enforcement of the Board Order in the first case would
protect them from discharge or other reprisals on account
of union activity, Eaton told the employees "that re-
gardless of this notice I would expect Stafford to do most
anything including possibly discharges." In answer to
inquiries as to how a collective-bargaining contract could
be obtained, Eaton stated that "probably the only way"
was to strike. Borchert expressed a similar view, stating
he told the men that "if you just joined the union and
wanted him [Stafford] to negotiate a contract, he
wouldn't, because if he did he would have prior to this
time." In other words, both Eaton and Borchert ex-
pressed the opinion that the past actions of the Respond-
ent in combating the employees' efforts at self-organiza-
tion and collective bargaining made it unlikely that their
objective of a contract could be achieved by means short
of a successful strike. I think it plain that in voting to
strike the employees agreed with this assessment of the
situation. I conclude and find that the unfair labor prac-
tices of the Respondent, as determined by the Board in
the prior proceedings and which were still unremedied,
played a contributory role in the employees ' decision to
strike, and that the strike, therefore, was an unfair labor
practice strike from its inception.9
In response to the Union's unconditional request of
July 15 for immediate reinstatement of the strikers as of
July 19, the Respondent replied that there were then no
vacant positions and that strikers "will be called if and
when positions become available." Since, as I have
found, the strike was an unfair labor practice strike, the
striking employees, under settled law, were entitled to
reinstatement upon unconditional application therefor. I
find that the Respondent, by failing and refusing to rein-
state the strikers for whom application was made on July
15, discriminated against them in violation of Section
8(a)(3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
III, above, which have been found to constitute unfair
labor practices occurring in connection with the opera-
tions 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 com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in un-
fair labor practices, it will be recomended that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Since the Respondent unlawfully refused to reinstate
its striking employees upon the Union's unconditional ap-
plication in their behalf, it will be recommended that the
Respondent offer them immediate and full reinstatement
to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, discharging, if necessary, any replacements in
order to provide work for such strikers. It will also be
recommended that the Respondent make them whole for
7 Franks Bros Company v N L R.B , 321 U S 702,705
8 N.L R.B v.John S Swift Company, inc , 302 F 2d 342, 346 (C A. 7)
9 Although I have found that the unilateral incease in wages made in
March 1966, and the harassment of Borchert by Jack Stafford on June 15,
1966, were violative of the Act, these incidents seem to me to have little,
if any, causal relation to the decision to stoke However, in view of my
finding that the previously determined unfair labor practices were acausa-
tive factor, it is unnecessary to decide whether the unfair labor practices
found in the current case to have occurred prior to the stoke also con-
tributed to the decision to strike.
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any loss of pay they may have suffered by reason of the
Respondent ' s discrimination against them , by paying to
each of them a sum of money equal to the amount he nor-
mally would have earned as wages from July 19, 1966,
the date the unconditional application was effective, to
the date of the Respondent 's offer of reinstatement, less
his net earnings during said period . The amount of
backpay due shall be computed according to the Board's
policy set forth in F. W. Woolworth Company, 90 N LRB
289, with interest on backpay computed in the manner set
forth in Isis Plumbing & Heating Co, 138 NLRB 716
Payroll and other records in possession of the Respond-
ent are to be made available to the Board, or its agents,
to assist in such computation and in determining the right
to reinstatement.
In view of the nature of the unfair labor practices which
I have found to have been committed , I shall recommend
that the Respondent cease and desist from in any manner
interfering with. its employees ' rights guaranteed under
Section 7 of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
3. At all times material the Union has been, and now
is, the exclusive representative of the employees in the
unit heretofore found appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(a) of
the Act.
4. By unilaterally increasing wages in March 1966,
and withdrawing recognition from the Union on August
29, 1966, the Respondent has violated Section 8(a)(5) and
(1) of the Act.
5. By threatening to discharge and otherwise har-
rassing its employee , Thomas Borchert , on June 15,
1966, the Respondent has violated Section 8(a)(1) of the
Act.
6 By refusing immediate reinstatement to the unfair
labor practice strikers , upon their unconditional offer to
return to work on July 19, 1966, Respondent dis-
criminated in regard to their hire and tenure of employ-
ment , thereby discouraging membership in the Union in
violation of Section 8(a)(3) and (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2 (6) and (7) of the Act.
8. In other respects alleged in the complaint, the
Respondent has not violated the Act
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclu-
sions of law , and upon the entire record in the case, it is
recommended that the National Labor Relations Board,
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, order that the Respondent , Stafford
10 In the event that this Recommended Order is adopted by the 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 further
event that the Board 's Order is enforced by a decree of a United States
Trucking, Inc., Portage , Wisconsin , its officers , agents,
successors , and assigns , shall:
1. Cease and desist from-
(a) Discouraging membership in Drivers, Salesmen,
Warehousemen , Milk Processors , Cannery , Dairy Em-
ployees and Helpers Union Local No. 695, affiliated with
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , or in any other
labor organization , by discriminatorily failing or refusing
upon their unconditional request to reinstate any of its
employees who have engaged in a strike and are lawfully
entitled to reinstatement , or by discriminating against its
employees in any other manner in regard to hire or tenure
of employment or any term or condition of employment.
(b) Threatening to discharge or otherwise harrassing
its employees because of their membership in or activities
on behalf of the above-named Union.
(c) Refusing to bargain with the above -named Union
as the exclusive representative of its employees in the
unit found to be appropriate for the purposes of collective
bargaining.
(d) In any other manner interfering with, restraining,
or coercing its employees in the exercise of rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act'
(a) Offer to the employees, who on or about July 15,
1966, made unconditional request for reinstatement, im-
mediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their
seniority or other rights and p ivileges, and make them
whole in the manner set forth in the section of this Deci-
sion entitled "The Remedy."
(b) Notify the said employees if presently serving in
the Armed Forces of the United Sates of their right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Train-
ing and Service Act, as amended, after discharge from the
Armed Forces.
(c) Upon request, bargain collectively in good faith
with the above-named Union as the exclusive representa-
tive of the employees in the unit heretofore found ap-
propriate, concerning rates of pay, wages, hours of em-
ployment, and other conditions of employment, and, if an
understanding is reached, embody such understanding in
a signed agreement.
(d) 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 determine the amount of backpay
due and to analyze reinstatement rights under the terms
of this Recommended Order.
(e) Post at its Service Building in Portage, Wisconsin,
copies of the attached notice marked "Appendix "iO
Copies of said notice, to be furnished by the Regional
Director for Region 30, after being duly signed by a
representative of the Respondent, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
Court of Appeals, the words "a Dcree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
STAFFORD TRUCKING, INC. 901
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of receipt of this
Decision, what steps the Respondent has taken to comply
herewith.l l
11 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify the Regional Director for
Region 30, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer 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 em-
ployees that:
WE WILL NOT discourage membership in or activi-
ty on behalf of Drivers, Saesmen, Warehousemen,
Milk Processors, Cannery, Dairy Employees and
Helpers Union Local 695, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeus,
Warehousemen and Helpers of America, or any
other labor organization, by discriminatorily failing
or refusing to reinstate any of our employees or by
discriminating in any other manner in regard to hire
or tenure of employment or any term or condition of
employment, except as authorized in Section 8(a)(3)
of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
WE WILL offer the employees, who on July 15,
1966, made an unconditional request for reinstate-
ment, immediate and full reinstatement to their
former positions, without prejudice to senority and
other rights and privileges.
WE WILL make all employees whole for any loss of
pay suffered as a result of refusing to reinstate them.
WE WILL, upon request, bargain collectively in
good faith with the above-named Union, as the ex-
clusive bargaining representative of our employees
in the unit found by the National Labor Relations
Board to be appropriate for the purposes of collec-
tive bargaining, with respect to rates of pay, wages,
hours of employment, and other conditions of em-
ployment, and, if an understanding is reached, em-
body it in a signed agreement.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization, to form labor or-
ganizations, to join or assist the above-named Union
or any other labor organization, to bargain collective-
ly through representatives of their own choosing, and
to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities, ex-
cept to the extent that such right may be affected by
an agreement requiring membership in a labor or-
ganization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as modified
by the Labor-Management Reporting and Disclosure
Act of 1959.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of the
above-named Union or any other labor organization.
STAFFORDTRUCKING, INC.
(Employer)
Dated By
(Representative) (Title)
NOTE: We will notify the employees to be reinstated,
if presently serving in the Armed Forces of the United
States, of their right to full reinstatement upon applica-
tion, in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive
days from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Suite 230,
Commerce Building, 744 North Fourth Street, Milwau-
kee, Wisconsin 53203, Telephone 272=8600.
308-926 0-70-58