Transport, Inc. of South Dakota

National Labor Relations Board - Board Decisions

Mar 4, 1970

181 N.L.R.B. 478 (N.L.R.B. 1970)

478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Transport, Inc. of South Dakota ; A-I Transport,
Inc.; and Lloyd Ward , Inc. and General Drivers
and Helpers Union , Local 749, International
Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America. Case
18-CA-2596
March 4, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On October 10, 1969, Trial Examiner Phil
Saunders issued his Decision in the above-entitled
proceeding, finding that the Respondents had
engaged in and were engaging in certain unfair labor
practices and recommending that they cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel and
Respondents filed exceptions to the Trial Examiner's
Decision and'Respondents filed a supporting 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 brief, and
the entire record in the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner with the following modifications.
1. We agree with the Trial Examiner that
Respondents violated Section 8(a)(5) of the Act by
refusing to bargain, upon request, with the Union
which represented a majority of Respondents'
employees in a unit appropriate for collective
bargaining. Respondents except to the Trial
Examiner's findings and conclusions in this regard
on the ground that the bargaining unit requested by
the Union was not adequately defined, that the unit
found appropriate by the Trial Examiner is not the
unit described in the complaint and is inappropriate.
As pointed out by the Trial Examiner, a
bargaining request need not define the unit in
minute detail. The Respondents' drivers operate out
of two main terminals, at Sioux Falls and
Watertown, South Dakota, and several
sub-terminals at other locations, each of which is
administratively controlled by one of the two main
terminals. The Union made written request to each
of the three Respondents, who are found to be joint
'In section III, twelfth paragraph , of the Trial Examiner's Decision the
Trial Examiner inadvertently refers to the " Respondents ' " demand letter
to Sitar "Respondents ' " is hereby corrected to read "Union's "
employers, for a unit including "all drivers." The
Trial Examiner's finding that the Respondents
understood the request to include the drivers at both
the main terminals and the sub-terminals is fully
supported by the record. It is noted that Respondent
Transport, Inc. of South Dakota, the only
Respondent to reply to the bargaining request,
refused to bargain by asserting that it doubted the
Union's majority status, did not then question the
adequacy of the unit description, and at the hearing
attempted to explain its doubt of the Union's
majority by reference to alleged Union pressure
applied to drivers at the subterminals in obtaining
their authorization cards.' To the extent that the
unit described in the complaint herein,3 as well as
the position taken by General Counsel at the
hearing, may be interpreted as limiting the unit to
the two main terminals, the Respondents were not
prejudiced by any variance between that unit
description and the unit described in the Union's
request, which we find to be an appropriate unit. In
fact, the unit which we find appropriate is the one
which Respondents argued to be the only
appropriate unit.
The Trial Examiner expressly found employees at
the Mitchell and Wolsey, South Dakota, and Rock
Rapids, Iowa, subterminals to be properly
includable in the unit. In so finding, we do not
believe the Trial Examiner intended to exclude any
other subterminal maintained by Respondents in
South Dakota from the geographic scope of the
unit. He found that there were no employees at any
such subterminal who would appropriately have
been included in the unit at the time the request for
bargaining was made.4 But, we believe, the unit
deemed appropriate by him was intended to cover
the Sioux Falls and Watertown terminals, and all
employees at their subterminals. As maintained by
Respondents, this is the appropriate bargaining unit
in the case.
We adopt the Trial Examiner's findings that
Respondents violated Section 8(a)(l) of the Act by
coercively interrogating their employees about their
union activities and sympathies and threatening
employees with loss of benefits and with discharge if
they supported the Union or engaged in concerted
activities. We also adopt his finding that
Respondents violated Section 8(a)(3) and (1) by
discharging nine unfair labor practice strikers. We
find that by refusing to bargain with the Union and
by engaging in a series of unfair labor practices
calculated to undermine the Union's majority status
the Respondents violated Section 8(a)(5) and (1) of
'Cf Nat Harrison Associates , Inc, 177 NLRB No 24, TXD
"`All drivers of Transport, Inc of South Dakota, A-1 Transport, Inc ,
and Lloyd Ward, Inc , at the Employers' Sioux Falls and Watertown,
South Dakota terminals , excluding all other employees , guards, and
supervisors as defined in the Act "
'Employees Emery Darling and Gilbert Garrett were at the Aberdeen
subterminal claimed by Respondents to be part of the unit The Trial
Examiner found Darling to be a supervisor , and Garrett was not employed
on a regular full-time basis , if at all, at the time
181 NLRB No. 69
TRANSPORT, INC. OF SOUTH DAKOTA
the Act. Respondents' unlawful conduct was of such
a nature as to have a lingering effect, which cannot
be eliminated or neutralized by traditional remedies,
and makes a fair election doubtful, if not
impossible. We are persuaded that the unambiguous
cards validly executed by a majority of employees in
the unit represent a more reliable measure of
employee desire on the issue of representation in this
case, than would an election and that the policies of
the Act will be effectuated by a bargaining order.'
2. We have adopted the Trial Examiner's finding
that Respondents violated Section 8(a)(3) and (1) of
the Act by discharging nine striking employees, after
they unconditionally offered to return to work,
because they had engaged in an unfair labor practice
strike. At various times subsequent to their
discharge, all these employees were recalled. The
Trial Examiner found that the reinstatement of
these strikers was incomplete and that certain earlier
offers of reinstatement which were not accepted by
the strikers were inadequate, and that these failures
or refusals to fully reinstate them further violated
Section 8(a)(3).
It has been established that these employees were
discharged in violation of Section 8(a)(3) upon their
request for reinstatement. As a consequence, they
became entitled to reinstatement and backpay.
Whether Respondents failed in their reinstatement
obligation bears primarily upon the remedial action
required herein. But, unlike the Trial Examiner, we
shall not attempt to decide whether, as of the time
of the hearing, full and complete reinstatement had
taken place. There is evidence in the record
regarding this question. This evidence relates
principally to the matter of whether the strikers
received their normal, nondiscriminatory share of
the available driving assignments (and hence their
fair share of the total income to be derived from
driving for Respondents) and whether it is necessary
to dismiss any new hires to give the strikers the fair
share to which they are entitled. However, the
record is not entirely clear as to certain matters,
including the reasons for the work assignments given
individual drivers during a rather limited period
prior to the hearing or as to the impact of the newly
hired drivers upon the work assignments. In all
these circumstances, we believe that the record
evidence presents issues which are best left for
resolution at the compliance stage of this
proceeding. We shall therefore issue the customary
remedial order of reinstatement with backpay and
leave it to compliance to determine the extent, if
any, to which Respondents may have already
complied with their obligations to the complainants.6
'N L R B v Gissel Packing Company . 395 U S 575
'Cf Ace Drop Cloth , Inc. 178 NLRB No 107 , -fn 2, Los
Angeles-Yuma Freight Lines . 172 NLRB No 40, Martech Corporation,
169 NLRB No 74, fn 2, see also Northwest Oil Equipment , Inc, 173
NLRB No 86, Stanley Building Specialities Co, 166 NLRB No 110
ORDER
479
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, as
modified herein, and hereby orders that the
Respondents, Transport, Inc. of South Dakota, A-1
Transport, Inc., and Lloyd Ward, Inc., Sioux Falls,
South Dakota, their officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order as so modified:
1. In paragraph 2(a), substitute "his" for "their",
and "him" for "them."
2. Delete paragraph 2(b) and substitute the
following:
"Offer to Richard Dykstra, Edward Gusso,
William R. Hiney, Harold J. Witt, Sr., George
Ihnen, Dennis Jones, Roman Rumpza, and Timothy
Sweeney, immediate and full reinstatement to their
former or substantially equivalent positions, without
prejudice to their seniority and other rights and
privileges, and make each of them and the heirs of
Frank Hoffman whole for any loss they may have
suffered by reason of Respondents' discrimination,
all in accord with and in the manner set forth in the
Trial Examiner's Decision "
3. Reletter the present paragraphs 2(d), 2(e), and
2(f) to read 2(e), 2(f), and 2(g), respectively, and
insert the following as paragraph 2(d):
"Notify the above-named employees if presently
serving in the Armed Forces of the United States of
their right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces."
4. Substitute the attached notice for that
recommended by the Trial Examiner.
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
WE WILL NOT unlawfully interrogate employees as to
their union activities, sentiments, or intentions.
WE WILL NOT threaten loss of benefits and
discharges for engaging in union and protected
concerted activities.
WE WILL NOT discharge or otherwise discriminate
against employees because they engage in lawful strike
activity.
WE WILL NOT discourage membership in the General
Drivers and Helpers Union, Local 749, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or in any other labor
organization of our employees, by refusing to reinstate
or in any other manner discriminating against our
employees in regard to hire or tenure of employment or
any term or condition of employment, except as
permitted by Section 8(a)(3) of the Act
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer to John Jones immediate and full
reinstatement to his former or substantially equivalent
position, and make him whole for any loss of pay
suffered as a result of all the discriminations against
him as provided for herein
WE WILL offer Richard Dykstra, Edward Gusso,
William R. Hiney, Harold J. Witt, Sr., George Ihnen,
Dennis Jones, Roman Rumpza, and Timothy Sweeney
immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to
their seniority and other rights and privileges
dismissing, if necessary, any employees hired since
April 3, 1968.
WE WILL make each employee and the heirs of
Frank Hoffman, whole for any floss of pay each
employee, may have suffered by reason of our
discrimination against him.
WE WILL bargain collectively, upon request, with the
aforementioned Union as the collective-bargaining
representative of all our employees in the unit described
as follows:
All drivers of Transport, Inc of S. D , A-I
Transport, Inc , and Lloyd Ward, Inc , at the
Employers' Sioux Falls and Watertown, South
Dakota Terminals and sub-terminals; excluding all
other employees, guards and supervisors as defined in
the Act.
WE WILL notify the above-named employees, if
presently serving in the Armed Forces of the United
States, of their right to reinstatement, upon application,
in accordance with the Selective Service Act, and, the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces,
All our employees are free to become or remain, or to
refrain from becoming or remaining, members in good
standing of the above-named Union or any other labor
organization.
TRANSPORT, INC., OF
SOUTH DAKOTA
(Employer)
Dated By
Dated By
Dated By
(Representative ) (Title)
A-I TRANSPORT, INC.
(Employer)
(Representative ) (Title)
LLOYD WARD, INC
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's Office,
316 Federal Building, 110 South Fourth Street,
Minneapolis, Minnesota 55401, Telephone 612-725-2611
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PHIL SAUNDERS, Trial Examiner: This proceeding under
Section 10(b) of the National Labor Relations Act, as
amended, was heard in Sioux Falls, South Dakota, on
various dates in December 1968, and in February and
March 1969. The complaint was issued October 30, 1968,
on a charge filed on April 22, 1968, against Transport,
Inc., of South Dakota, A-1 Transport, Inc., and Lloyd
Ward, Inc., herein Transport, A-1, Ward, or Respondents,
and alleges violations of Section 8(a)(1), (3) and (5) of the
Act. A brief was filed by the General Counsel.
Upon the entire record in the case and from my
observation of witnesses, I hereby make the following:'
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENTS
Respondent Transport is now and at all times material
herein has been a corporation with its office and principal
place of business located at Sioux Falls, South Dakota,
and is primarily engaged in both interstate and intrastate
trucks transportation of petroleum and related products.
During the past year the total revenue received by
Transport for the performance of interstate transportation
services between the State of South Dakota and other
States of the United States was in excess of $50,000.
During the same period Transport carried goods valued in
excess of $250,000 between the State of South Dakota and
other States of the United States.
Respondent A-I is now and at all times material herein
has been a corporation with its office and principal place
of business located at Sioux Falls, South Dakota, and is
primarily engaged in both interstate and intrastate trucks
transportation of petroleum and related products. During
the past year the total revenue received by A-I for the
performance of interstate transportation services between
the State of South Dakota and other States of the United
States was in excess of $50,000. During the same period
A-1 carried goods valued in excess of $250,000 between
the State of South Dakota and other States of the United
States.
Respondent Ward is now and at all times material
herein has been a corporation with its office and principal
place of business located at Sioux Falls, South Dakota,
and is also primarily engaged in both interstate and
intrastate truck transportation of petroleum and related
products. During the past year total revenue received by
Respondent Ward for the performance of interstate
transportation services between the State of South Dakota
and other States of the United States was in excess of
$50,000. During the same period Respondent Ward
carried goods valued in excess of $250,000 between the
State of South Dakota and other States of the United
States
By virtue of the operations set forth above - the
Respondents, at all times material to this proceeding, are
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
'All credibility resolutions made herein are based on a composite
evaluation of the demeanor of the witnesses and the probabilities of the
evidence as a whole
TRANSPORT, INC. OF SOUTH DAKOTA 481
11. THE LABOR ORGANIZATION INVOLVED
The Union named in the caption of this Decision is a
labor organization under the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges that on or before March 29,
1968, the Union had a majority in an appropriate unit and
was the duly authorized collective-bargaining
representative of employees in the unit, that on or about
March 29 and April 3, 1968, the Union requested
recognition, that since April 3, 1968, the Respondents
have failed and refused to bargain with the Union - that
Transport contracted out work at its Watertown terminal
without bargaining with the Union, and that Respondents
negotiated individually with employees. It is alleged that
10 employees were wrongfully discharged - 9 of the 10
on April 17, 1968, that Respondents have failed to fully
reinstate employees by withholding driving assignments,
and that on certain occasions supervisors of Respondents
interrogated and threatened employees. It is further
alleged that Transport, A-1, and Ward are joint
employees.
This record shows that Transport, A-l, and Ward have
utilized the same terminal trucking facilities at Sioux
Falls, South Dakota, and all drivers operating out of the
Sioux Falls terminals are dispatched by Transport's
dispatcher. A-1 and Ward have regularly leased
substantially all of their vehicles or trucks to Transport,
and under the lease agreements A-1 and Ward usually
furnishes the drivers. All three companies have shared in
the revenues derived from such arrangements. Moreover,
Transport owns and maintains principal truck terminals
both at Sioux Falls and Watertown, South Dakota, and
each of these terminals have subterminals which are
operated in conjunction with the main two terminals.'
Prior to the Union's organizing campaign, all drivers
operating out of the Sioux Falls terminal were employed
through either A-1 or Ward. It appears that drivers
operating out of the Watertown terminal, as well as
drivers operating out of the various subterminals of both
Sioux Falls and Watertown, are employed directly by
Transport. Transport has also utilized additional
owner-operators from time to time on an as-needed basis
at the Watertown terminal and at some of the
subterminals. Some of these owner-operators are
multiequipment operators, whereas others are apparently
single equipment operators Prior to the Union's
organizing campaign the utilization of owner-operators at
locations other than Sioux Falls appears to have been
primarily for the purpose of providing extra capacity
during peak demands '
'Sub-terminals are located in Wolsey, Aberdeen and Mitchell, South
Dakota, and at Rock Rapids, Iowa
'The following named individuals occupied the positions set forth
opposite their respective names and have been and are now agents of the
Respondents acting on their behalf and are supervisors within the meaning
of the Act
Ernest M Sifrar - Secretary-Treasurer and General Manager of
Transport
Frank Dunlavy - Assistant General Manager of Transport and
Terminal Manager at Watertown, South Dakota Terminal
Eldon Shuttler - Dispatcher of Respondents at their Sioux Falls,
South Dakota Terminal
Lloyd Ward - President of Ward
Merl Herrmann - President of A-I
It appears that the Union's organizing campaign started
in February 1968.° By letter of March 29 to Sifrar,
general manager of Transport, the Union claimed
majority status and requested recognition in a unit
including all drivers On April 3, the Union renewed its
demand and also went on strike with pickets being
established at the Watertown and Sioux Falls terminals,
and the initial phase of the strike lasted until April 17
when the Union unconditionally offered to return the
drivers to work. A few days later, when the Respondent
refused reinstatement, the strike resumed and then
continued for several weeks thereafter
In the complaint before me the following described unit
is set forth as appropriate for the purposes of collective
bargaining.
All drivers of Transport, Inc. of South Dakota, A-1
Transport, Inc , and Lloyd Ward, Inc., at the
Employers' Sioux Falls and Watertown, South Dakota
terminals, excluding all other employees, guards, and
supervisors as defined in the Act.
The Union has maintained its position that a single unit
including drivers of A-1 and Ward is appropriate. Union
Representative Jack Mcllvenna, further indicated the
single unit position when he met with Transport's
attorney, Robert May, on April 3 Attorney May
informed Mcllvenna he represented Transport, but had no
connections with A-1 and Ward, and at his suggestion
Mcllvenna then sent individual letters requesting
recognition to A-1 and Ward - dated April 3.' The
Respondents maintains that the Union made a demand in
an inappropriate and ambiguously defined unit.
A study of the record as it relates to the employment
conditions of the employees sought to be represented
herein reveals the following: Ward and A-1 drivers are all
dispatched from Transport's Sioux Falls terminal and by
Transport's dispatcher; drivers for each company are
covered under the same group insurance policies, are
subject to supervision, discipline, and even discharge by
Transport's management; and several drivers for A-1 and
Ward were hired by Sifrar. This record further reveals
that Sifrar managed A-1 when Herrmann worked for
John Olinger in the early months of 1968; that Sifrar was
also acting for A-1 or Herrmann in late May and early
June; that billing of all customers is done at the Sioux
Falls terminal under the name of Transport; that all
drivers are paid on a mileage basis; that the equipment
operated by A-1 and Ward have the name of Transport,
Inc. on the trucks; that for 5 or 6 weeks in 1968, most of
the drivers for A-1 and Ward received their paychecks
from Transport; and that employees for Ward and A-I
are subject to Transport's rules and regulations governing
certain conduct of drivers.
It is clear from the evidence that in order to assure a
common public image and maintain an effective
operation, Ward and A-1 have surrendered to Transport a
considerable measure of control over the employment
conditions of the drivers employed by each. It is thus
quite apparent that A-1 and Ward recognize the need for,
and the benefit from, uniformity of control which
Transport exercises over all drivers, and that they
accordingly share control of their drivers with Transport
All dates are 1968 unless stated otherwise
'It is noteworthy that these letters to A-I and to Ward both included
"Transport , Inc of South Dakota" as part of the inside address See G C.
Exhs. 26 and 27
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under all the circumstances, I find that the record
clearly established that Transport, A-l, and Ward to be
joint employers in a common enterprise, and that a single
unit including drivers of all three Respondents is
appropriate
Although the employees of these multiequipment
owner-operators are properly includible in such a unit, as
aforestated, the owners themselves occupy supervisory
status and should be excluded from the unit. Therefore,
Lloyd Ward and Merl Herrmann, presidents of Ward and
A-1, respectively, are excluded from the unit because of
their ownership interests and supervisory status. Joint
Exhibit 1 is a stipulation of the parties listing the drivers
in the unit who were on Respondents' payroll during the
period March 28, through April 5 On or before March
29, when the Union's initial request for recognition was
mailed, 8 of the 14 drivers listed on Joint Exhibit 1 had
signed authorization cards for the Union. As of April 3,
three more of the drivers named on Joint Exhibit 1 had
signed cards, and by April 4 all but one of the drivers
named on Joint Exhibit 1 had designated the Union as
their bargaining agent. Cards were also introduced into
this record for Floyd Conn and Clifford Anderson The
names of these drivers for Transport do not appear on
Joint Exhibit 1, but they drive out of the Mitchell and
Wolsey subterminals. A review of the record indicates that
any supervisory power of either Conn or Anderson is
minimal, and since they have substantially the same duties
as Respondents' other drivers, both Conn and Anderson
are properly includible in the unit. It also appears that
Jack Mitchell, who drives out of the Sioux Falls
subterminal located at Rock Rapids, Iowa, should
likewise be includible in the unit. See General Counsel's
Exhibit 14.6
On the basis of the above - the unit requested -
consisted of 17 drivers, and on or before April 3, when the
Union again made its demand for recognition, as
aforestated, the Union had a majority of valid
authorization from employees in this unit. Furthermore,
the Union's original demand for recognition on March 29
must be deemed a continuing request. In Scobell Chemical
Company v. N L R B, 267 F.2d 922, (C.A. 2), where the
Court, assuming that the Union lacked a majority at the
time of its initial bargaining request, found that it had
such a majority the next day, and held that in the light of
the strike and picketing which there ensued, the Union's
request for bargaining must be deemed a continuing
request.
As pointed out, the Respondents would include several
additional individuals in the unit, but there is insufficient
'A unit composed of two or more plants, stores , offices, etc , of an
employer's operations may, under settled law , be an appropriate bargaining
unit where there is a reasonable degree of geographic coherence among the
plants, etc , in question , N L R B v West Kentucky Coal Co , 152 F 2d
198, 202 (C A 6), cert denied 328 U S 866 (unit of three mines in one
locality, excluding a fourth mine 37 miles away, held appropriate),
Metropolitan Life Insurance Company, 56 NLRB 1408, 1415, 1416-18
(multioffice unit appropriate where there is a "reasonable degree of
geographic coherence . in an area that is clearly defined and sufficiently
compact so that a single bargaining unit will permit the employees to
exercise their collective bargaining rights under the Act"), or where the
multiplant , etc , unit conforms to a functional or administrative subdivision
of the employer's operations , Singer Sewing Machine Co v N L R B, 329
F 2d 200, 203 (C A 4) (42 stores in city-wide area held an appropriate
unit), Dow Drug Co, Inc, 127 NLRB 1316, 1318-19 ( 16 drugstores in
area-wide unit , under supervision of an area manager, held appropriate),
compare Kroger Company, 88 NLRB 194, 195, where the Board held
inappropriate a representation petition seeking a multistore unit which did
not include all the stores in the employer 's administrative subdivision
evidence to warrant the inclusion of any additional
drivers. The evidence which was introduced indicates that
additional drivers whom Respondents apparently would
include are owner-operators hired after the Union's
request for recognition (Conger, Christopherson, Krossm);
individuals who have the power to hire other drivers
(Emery Darling, Fritz Forney), other employee drivers
hired after the request for recognition (Terry Jones,
Thomas Grass), or individuals who merely worked for
Respondents on a casual as-needed basis (Donald Lorang,
Gilbert Garrett, Robert Fuller). The Respondents contend
that Frank Hoffman should be excluded from the unit
because he was an office employee supervisor. The record
will not support this contention. In early January,
Dunlavy was called to Sioux Falls upon the illness of
Sifrar, and during his absence Hoffman did some
temporary dispatching from the Watertown terminal.
However, he continued to drive and do minor mechanical
work on the trucks, received no pay increase, and had no
authority to hire or fire Actually, it appears that each of
the three drivers at Watertown did some dispatching along
with Dunlavy's wife who would also take calls. It appears
that Wilbert Honkin voluntarily terminated his
employment on March 30.
The Respondents' demand letter to Sifrar dated March
29,' claimed a unit appropriate for collective bargaining,
and this unit was to include all drivers with certain
exclusions in office, clerical and professional employees
Even though the unit was somewhat ambiguous in the
initial demand letter - this request was sufficient to
support a duty to bargain. It is well settled that a union's
request for recognition is sufficient to raise a duty to
bargain on the part of an employer if the employer is
apprised in general terms of the proposed unit description.
The request need not be grammatically perfect and need
not define the unit in minute detail and the request is
sufficient if it describes any appropriate unit , it need not
describe the most appropriate unit. Once again it is
mentioned that on April 3, Mcllvenna specifically
articulated his unit position when he and driver Sweeney
met with Transport's attorney. On this occasion
Mcllvenna maintained his position that all three
Respondents here involved were one for the purpose at
hand and asked recognition "for all " Mcllvenna then
even offered to show the authorization cards.
Based on the circumstances and factors set forth above,
I find that the Union had valid authorization cards from a
majority of the employees in an appropriate unit, and
made a sufficient demand for recognition.
Driver Tim Sweeney credibly testified that in the latter
part of March, he was given a letter by Supervisor
Dunlavy. The letter read, in part, that there would be a
work stoppage the following Monday, asked if the
employee knew about it - whether the reader intended to
participate in the work stoppage - and then stated that if
the reader did participate he would be "automatically
resigning" his job because of not showing up for work
The letter also contained a place for the signature of the
employee. After Sweeney read the letter, Dunlavy inquired
if he knew of the work stoppage, and if he intended to
take part in it. In late March, management also discussed
the contents of this letter with driver Richard Dykstra and
other drivers 8 Harold Witt gave reliable testimony to the
'G C Exh 25
'Dunlavy testified that management had heard rumors of a possible
strike - so he used the letter in an effort to ascertain whether or not the
employees would report for work on Monday
TRANSPORT, INC. OF SOUTH DAKOTA
effect that shortly prior to the strike Sifrar asked him how
he stood on the "union deal." Driver William Hiney
stated that before the strike Sifrar also inquired of him
how he felt about the Union and if he was a union man.
Sifrar then asked Hiney if John Jones was trying "to get
the boys lined up in the union." Sifrar also asked George
Ihnen if he had signed a card, and then informed him if
he joined the work stoppage it would be the same as
resigning and that his insurance policy would be,cancelled
Richard Anderson credibly testified that in April -
Sitrar interviewed him as an applicant for a job and
inquired how he felt towards the Union, whether he would
join if asked, and also wanted to know if Anderson had
signed a union authorization card. Anderson stated that to
get the job he then agreed to vote against the Union if
and when the matter came to a vote.
Richard Dykstra gave credited testimony to the effect
that 3 weeks after signing his authorization dated March
11, 1968, Lloyd Ward asked him if he had paid any dues
or initiation fees, and if he had signed an authorization
card. Dykstra further stated that Ward then told him he
liked Dykstra as a driver and "hated to lose" him '
Additional aspects bearing on violative conduct of the
Respondents is shown by the following incidents: In April
- Sifrar told driver Sweeney that if he returned to work
he would be required to resign his former position with
A-l, and in so doing would have to give up seniority and
vacation rights, and also group insurance - Sweeney then
signed a prepared resignation form; in late March, Sifrar
informed Dykstra he had heard about a work stoppage
and if Dykstra did not report to work he would cancel his
insurance and Dykstra had until Saturday noon to get
other insurance.
With the above interrogations and threats by Sifrar,
Dunlavy, and Ward the Respondents obtained general and
specific information relative to the union activities and
sentiments of employees and prospective employees. The
interrogations were then coupled with threats of discharge
and loss of existing benefits, as aforestated. These are
types of employer, conduct which are clearly prohibited by
Section 8(a)(1) and consistently held violative of the Act.
It is also well established by the Board and the courts that
the illegality of such inquiries or remarks are not cured by
the casual nature of the conversation or the personal
relationships of the parties thereto, nor by the employee
rejection of such questions or statements.
The complaint alleges that on April 17, Respondents
discharged the following unit employees and strikers:
Dykstra, Gusso, Hiney, Hoffman, Witt, Ihnen, Dennis
Jones, Rumpza, and Sweeney. The complaint was
amended at the hearing to include the allegation that on
or about February 4, John Jones was discharged because
of his concerted activities protected under the Act.
Roger Pitsenbarger testified that in February, he,
Mcllvenna, and several others were involved in
negotiations at Moorhead, Minnesota, on contracts for
certain truckdrivers, in North Dakota and Minnesota. The
company involved in these negotiations with the
Teamsters was Transport, Inc., of Moorhead, Minnesota
- a separate corporation from Transport, Inc., of South
Dakota, but Pitsenbarger is an officer in both. On April
16, agreements were reached on the above contracts and,
according to Pitsenbarger, a suggestion was then made by
the Union to the effect that if they called off the strike at
the terminals in Sioux Falls and Watertown - Transport
'Ward admitted that before the strike he talked about the Union to
some of his employees , and inquired whether or not they wanted a union
483
would agree not to take any kind of legal recourse against
the Union for any of its actions prior to April 16 10
Pitsenbarger then called Sifrar and supposedly both of
them agreed to the above Later the same day - April 16
- Sifrar called the strikers individually about coming
back to work, and in so doing asked them two questions.
He first inquired if they would report for work in the
morning, and secondly asked if they wanted to buy a
tractor and become an independent contractor as there
were tractors for sale." Sifrar testified he did not indicate
that buying a tractor was the only way drivers could
return to work, but wanted to give "present people" the
first opportunity to buy a tractor. In his calls Sifrar did
not mention that the Respondents had reached a
settlement with the Union.
On April 17, McIlvenna had discussions with the
strikers about returning to work, but was then informed
that Sifrar had -called them the evening before as
detailed above. Therefore, by letters dated April 17 - to
Transport, Ward, and A-1, McIlvenna notified
Respondents in writing that the Union was making an
unconditional offer to return the employees to work This
record also shows that on April 17 - the strikers went to
the terminal in Sioux Falls and informed Dunlavy they
were ready to go back to work. Dunlavy told them they
were not employed by Transport and they would have to
talk to Merl Herrmann and Lloyd Ward. The drivers then
spoke to Ward and also gave him the message that they
were ready to go to work. Ward informed them he had
lost his contracts, that he had no business left, and in
order to work they would have to buy a tractor. On the
evening of April 17, Driver William Hiney also informed
Herrmann of A-1 that strikers were ready to report for
work. Herrmann replied that he had no contracts, no
trucks, and no jobs, so he could not hire them back 11 The
three drivers - Hoffman, Rumpza, and Gusso - hauling
out of the terminal in Watertown, contacted Sifrar and
told him they were offering to go back to work
unconditionally. Sifrar replied that they had "dug" their
own "ditch" and to get out of it the best way they could.
By letters dated April 17 - several of the strikers were
also individually notified by Sifrar and Herrmann that
their personnel files were being permanently closed.
Subsequently to April 17 - the strikers named were
called back to work However, the General Counsel
maintains there was continuing discrimination because
these drivers were not fully reinstated, and in argument
points out that the "Respondents apparently believed they
could frustrate the drivers' rights to backpay by making
qualified offers of reinstatement." The General Counsel
also maintains, and the complaint alleges, that from April
3 the drivers were engaged in an unfair labor practice
strike caused by Respondents' failure and refusal to
recognize and bargain with the Union - its threats and
interrogations - and the discharge of the strikers.
The Respondents maintain the work stoppage was an
economic strike wherein replacements were hired, and
therefore, when the drivers offered to return on April 17
- their former positions were not available
'°McIlvenna testified that Pitsenbarger told him the Respondents would
try to put the drivers back to work if the Union would forget about
recognition
The tractors offered for sale were - or had been - the property of
Ward and A-I
"During the strike Ward and A- I requested that their leases with
Transport be cancelled in order to avoid the penalty provision when trucks
were nonoperative
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under settled law, an employer may replace economic
strikers, but he may not discharge them for going on
strike. Likewise settled is the proposition that unfair labor
practice strikers, as distinguished from economic strikers,
are entitled to reinstatement even if replaced. Therefore, if
the strikers involved and named herein were unfair labor
practice strikers - they were entitled to full reinstatement
on April 17 upon their valid and unconditional offer to
return, and even if such reinstatement would have required
the displacement of other drivers.
Respondents' numerous violations of the Act, as
aforestated, which began before the employees went on
strike and continued throughout the period of the strike,
motivated and prolonged the strike, thereby making it an
unfair labor practice strike." As will appear below, I find
the violation of 8(a)(5). Moreover, on April 17, the
Respondents invoked the severe sanction of discharge
against the striking drivers by notifying them that their
jobs no longer existed, and that it did so because they
went on strike. Such discharge action is plainly violative
of Section 8(a)(3) and (1) of the Act." Even assuming,
arguendo, that the strike on April 3 was an economic
strike, on April 17 it was converted into an unfair labor
practice strike as Respondents terminated the strikers.
Before the April 3 strike, A-1 employed five drivers
(Gronewald, Hiney, Ihnen, Sweeney, and Dennis Jones),
and all hauling out of Transport's terminal in Sioux Falls.
Prior to the strike A-1 had two dedicated trucks on hauls
on runs for Mobil and Standard." Dennis Jones and
Sweeney were on the dedicated run for Mobil, and
Gronewald and Hiney were on the dedicated run for
Standard. Herrmann testified that he generally put his
most capable driver on dedicated runs, but that when
business was slow he would interchange the drivers
between dedicated and open runs. During the first few
weeks of the strike - Herrmann hauled all he could on
his two dedicated runs, and testified that the remainder of
the hauls had to be given to other trucks or to
competitors.
Before the strike, Ward also had two dedicated hauls
- both for Standard Oil - and Witt, Dykstra, Mclnroy,
and John Engberg were the drivers. Ward testified that
the most capable drivers with the most seniority are
assigned on the dedicated hauls.
Insofar as the strike effected the hauls out of the Sioux
Falls terminal are concerned - it appears that both Ward
and Herrmann themselves drove, that Mclnroy continued
to drive, that Albert Conger was hired in early April, that
Conrad Christopherson was hired shortly after April 16,
and that Lester Krossin was hired on or about May 1.
The latter three men are owner-operators under lease to
Transport, and are still working and hauling for
Transport. On April 18 and running through April 24 -
Transport also ran help wanted ads for truckdrivers in the
local daily Sioux Falls newspaper, and in response to such
ads hired two or three drivers. Transport's dispatcher at
Sioux Falls, Eldon Schuttler, testified he had difficulty
filling orders during the strike and that dedicated runs had
"It is well settled that a strike which is in part caused or prolonged by
unfair labor practices is an unfair labor practice strike even though such
unfair labor practices were not its sole cause.
"See Cincinnati Cordage and Paper Co, 141 NLRB 72, 76, and cases
there cited
"Drivers on dedicated runs are guaranteed by the customer , a definite
amount of hours of hauling . Usually two drivers are assigned to dedicated
runs. Open hauls are orders from customers on a single or irregular basis
with no guarantee of repeats It appears that earnings are greater on the
dedicated hauls.
to be "sort of suspended." Schuttler went on to relate that
he attempts to balance out the mileage between Ward and
A-1, that individual drivers continually complain about
their earnings and that they are not receiving the "good
runs," that the Respondents operate on a 6-day basis and
drivers are expected to be available on Saturday, and that
when the regular drivers started coming back to work -
he dispatched them in the same manner as before the
strike.
This record shows that prior to the strike Dykstra was
driving almost exclusively on dedicated runs for Ward, as
aforestated, and on May 16 he returned to work for Ward
but was put on open hauling and with the exception of a
few weeks, has remained as a driver on open hauls ever
since. Dykstra had prestrike earnings of about $670 a
month, but his earnings dropped to approximately $534 a
month for a period of time after returning. Dykstra
testified that because new drivers were hired the older
employees have been shorted on assignments.
For 3 months prior to the strike, Harold Witt had been
driving 12 hours a day on a dedicated run for Ward out of
the Sioux Falls terminal. By letter dated May 22 and
signed by Lloyd Ward - Witt was offered his old job
back as a driver and under the same arrangements as he
had previously.16 The next day Witt talked with Ward and
Sifrar and specifically inquired if he would be put back on
a dedicated run, but was then told he would not get this
assignment Witt stated he had to have work so went back
to work, but was placed on open hauling." Witt had
pre-strike earnings of about $175 a week when running on
dedicated hauls, and when he returned in May, as
aforestated, he averaged approximately $100 a week on
open hauling. During the past 6 or 7 weeks Witt has
returned to driving on dedicated hauls.
For several months before the strike Dennis Jones was
running for A-1 on a 12-hour a day dedicated haul out of
Sioux Falls. By letter dated May 22, he was
unconditionally offered his old driving job back, and a few
days later informed the terminal he was available for
work. Jones received his first load on May 28, but was
not put back on a dedicated run. The earnings of Dennis
Jones before the strike appear to be about $125 a week,
but testified that after the strike and upon return he only
received on an average from $30 to $40 a week On or
about July 2 marked the last day Jones worked for
Respondents Jones testified he could not live on what he
was making after his return so he had to get another job.
Schuttler testified that after Dennis Jones returned he
drove for other haulers, that between June 7 and June 17
he had no trips because he had asked for time off - this
would be 10 days without pay.18 Schuttler and Herrmann
stated that Jones liked to go fishing on weekends and on
Saturdays he turned loads down which decreased his
earnings , and on other occasions they were unable to
contact him for load assignments.
Before the strike, William Hiney was driving on a
dedicated run for A-1 but when he returned on June 3 was
"G C Exh. 6.
"Apparently, Witt pulled his first load on May 28 He testified that
between May 23 and the 28th - he "sat home "
"Resps. Exhs . 18 and 43 shows that for the period from May 15 to May
31 - the gross pay for Dennis Jones was $31.71, that from June 1 to June
15 - he received $92 32 gross pay, from June 16 through June 30 -
$160.79, and from July I - through July 15 - received $24 32 in gross
pay.
TRANSPORT, INC. OF SOUTH DAKOTA 485
assigned open hauling." After August 22 - Hiney could
not work full time because of his health, but between June
3 and August 22 - there were no limitations of any kind
on his availability. Hiney testified that prior to the strike
he was earning between $500 and $700 a month, but
during the month following his return on June 3 - his
earnings dropped about $125, and from July 3 to August
3 - they dropped approximately $85. It appears that
from August 22 until October 1 - Hiney did no driving,
but in October the Respondents assigned him short runs.
The General Counsel admits that backpay cutoff date for
Hiney is August 22.
George Ihnen drove open hauling for A-1 out of Sioux
Falls. By letter dated May 16, he was offered
unconditional reinstatement to his former job. Ihnen and
Herrmann then had a discussion about a load of cattle
Ihnen was suppose to take to Texas, but Herrmann
informed Ihnen he had to be to work on Monday morning
- May 20. Ihnen testified that he then made other
arrangements for the cattle load, and was available on
Monday but was not dispatched until Wednesday Ihnen
stated before the strike he had average earnings of about
$265 for each 2 weeks period, and testified that
subsequent to the strike his earnings dropped to
approximately $227 for each 2 weeks period.20 Ihnen also
related that after reporting back to work, he was assigned
runs that had been pulled out of the Watertown terminal
before the strike.
Schuttler testified that on or about May 30 he called
Ihnen, but his wife informed Schuttler that he had gone to
a funeral in North Dakota, that Sifrar then checked
around and found out Ihnen had taken a load for Rich
Brothers to Wyoming, and that ordinarily men driving for
the Respondents are expected to devote 100 percent of
their time.
Tim Sweeney drove for A-1 on a dedicated run out of
Sioux Falls, but had been hired by Sifrar. Sweeney went
back to work on April 18, and then drove dedicated for
Albert Conger, an owner-operator, who had been hired
after the April 3 strike started, as previously indicated
herein. Since mid-September, Sweeney has driven for A-1
and has been assigned open hauling. Before the strike he
was earning between $700 and $800 a month, and between
April 18 and mid-September his earnings were about the
same as before the strike Since mid-September, 1968 he
stated his earnings dropped to between $500 and $600 a
month
Prior to the strike Transport operated the Watertown
terminal with its three drivers and some help from Ward,
A-1, and Tompkins when they were rushed. During the
strike leased operators Heuther and Untersher and others
hauled loads out of Watertown. It appears that Heuther
and others also continued to haul for a period of time
after the strike Dunlavy testified that Transport had long
wanted to make some changes at Watertown when
pipeline terminals opened at Wolsey and Aberdeen, and
since Heuther had performed a good job "we thought it
was no more than fair that since he had saved the business
for us that he should be the one that should have it "
Dunlavy explained that they did not want to close the
Watertown terminal after the strike, but wished to curtail
"On April 29, Hiney had a conversation with Sifrar and Dunlavy about
returning to work See G C Exh. 17 The General Counsel maintains this
incident reveals that the Respondents were attempting to negotiate with the
individual drivers and not with the Union
"By the middle of July, lhnen reached the point where his earnings were
about the same as they had been before the strike See Resps Exh 36
or eliminate certain expenses in its overall operations.
Dunlavy also stated that because of the strike the
Watertown terminal lost three good hauling accounts -
the Mobridge run from Rock Rapids - which during and
after the strike the hauls were made by Untersher, the
Jensen Oil Company account at Lake Norden - during
and after the strike Heuther hauled this run, and that they
lost the M. & M. Station at Clark - Heuther hauled it
during the strike , but in late May or early June they were
cancelled out completely
On May 2 Respondents offered the Watertown drivers
"reinstatement ," but not reinstatement at the Watertown
terminal . These offers were limited to reinstatement at
Sioux Falls , which is about 100 miles from Watertown.
On August 5 Respondent finally offered the Watertown
drivers work at the Watertown terminal and the
Watertown drivers accepted these offers for work at their
home terminal . Within a few weeks after the men
accepted these offers, Respondents were at it again trying
to make the Watertown drivers move to Sioux Falls.
Frank Hoffman testified that his monthly earnings
preceding the strike were about $550 a month , but after
returning to the Watertown terminal on August 5 -
dropped to approximately $ 170 a month . Hoffman stated
that after he returned to work the leased -operators, as
aforestated, were still hauling Hoffman worked for the
Respondent until about the middle of September and then
left for another job after turning in his credit cards and
keys." Hoffman admitted that prior to 1968 there were
one or two instances when Transport asked him if he was
interested in working at the terminal in Sioux Falls.-
Watertown driver Roman Rumpza also refused to
move to Sioux Falls pursuant to the requests from
management , as aforestated Rumpza testified that after
the strike trucks were driving out of Watertown by drivers
who were not employees before the strike and Heuther
was one of the drivers so operating Rumpza stated that
he was earning between $560 to $575 before the strike,
and after going back to work in August received average
of $375 a month.
Edward Gusso had worked at the Watertown terminal
for about 10 years, and also refused to relocate in Sioux
Falls when requested to do so. Gusso testified he was
informed that Transport ' s offer of reinstatement on
August 5 to the Watertown terminal was unconditional
and he accepted it as such . Gusso further stated he had at
least one haul before the strike that he did not haul after
his return and on this run Untersher continued to do the
hauling. He testified his average monthly earnings were
$611 before the strike , and after returning his monthly
earnings dropped to approximately $400 Gusso admitted
that in 1966 he had a discussion with Dunlavy about a
possible transfer to Sioux Falls , and agreed that in his
application for employment form he had specifically
indicated no objection to being transferred from one point
to another.22
Dunlavy and Sifrar testified that the several offers of
transfer to Sioux Falls were made because Transport had
very little business at Watertown , that they needed
another driver or two at Sioux Falls and that there was
nothing unusual in discussing transfers with drivers and
then pointed out the various transfers of drivers which
have been made in the past. Sifrar explained that during
"By letter dated September 21 - Sifrar informed Hoffman that his
absence without notice constituted a voluntary resignation.
"It appears that Rumpza and Hoffman had also indicated no objections
to transfers in their employment applications
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the strike some of the drivers asked customers not to give
their hauls to the Respondents, and then when they
returned wondered where all the business was. He also
stated that if drivers earned less after their return than
they did prior to the strike it might be found there was a
"reluctance" on the part of the drivers to take hauls, that
Dennis Jones was difficult to find for work on Saturday,
that on occasion Witt could not be located, and that
"another" driver was taking a load of cattle to Texas.
Since the strike was an unfair labor practice strike, as
aforestated, all strikers were entitled to reinstatement
upon their unconditional offer to return to work on April
17, even if such reinstatement would have required the
displacement of other drivers, and a failure to do so
constituted an additional violation of Section 8(a)(1) and
(3) of the Act. Under settled law as applied to the facts of
this case - the Respondents could not retain, after April
17, the individual drivers and independent contractors they
hired as replacements during the strike, and then later
contend that there was insufficient business to warrant full
and immediate reinstatement of returning strikers. This
record reveals that Conger was hired after the initial
strike started, and that Christopherson and Krossin were
both hired after the strikers made their unconditional offer
to return to work. Sifrar admitted that these three
replacement owner-operators are still employed at the
Sioux Falls terminal. Furthermore, starting on April 18, 1
day after the strikers applied for reinstatements,
management ran daily ads for truckdrivers and at least
three drivers were then hired in response thereto. It is also
obvious from this record that several Sioux Falls drivers
were not reinstated to dedicated hauls after their return -
other than Sweeney - because Conger, Krossin,
Christopherson, and possibly others subsequently hired,
were assigned these high earnings and desired runs. None
of the Sioux Falls drivers were offered reinstatement on
May 2. Apparently at this time, the only offers
Respondents made were offers which they knew would not
be accepted, and did not risk offering reinstatement to
drivers at their home terminals The General Counsel also
points out that the Sioux Falls drivers accepted what were
held .out to be unconditional offers of reinstatement, but
they soon learned that Respondents' definition of
"unconditional" is not the generally accepted one. When'
driver Harold Witt protested Respondents' refusal to
assign him a dedicated run, Sifrar told him, "... you had
a. job before and you have a job now, that's what it
[reinstatement] amounts to."
Management contended that loss of business in the
Watertown area justified its curtailment of activities and
requested transfers. However, it appears to me that the
owner-operators hired 'during the strike were the main
reasons why the Watertown strikers were not immediately
and fully reinstated to substantially equivalent positions.
The loss of three accounts mentioned by Dunlavy appear
to be hauls that were merely losses to the three regular
Watertown drivers or strikers, and not to Respondents as
new owner-operators leased to Transport come in and
made the hauls, and at least in two instances continued to
do so after April 17
The General Counsel contends that Hoffman and
Dennis Jones were constructively discharged by
Respondents' . failure to assign them enough work.
Between August 7 and August 12 - Hoffman had no
work out. of Watertown terminal, and this record shows
that subsequent to August 12 he pulled very few loads
while the replacement leased operators were working. His
earnings prior to the strike were consistently high, but
after the strike and his return there was a considerable
drop, as aforestated. Before the strike Hoffman also spent
some of his time doing minor mechanical work on trucks
at the Watertown terminal. After returning he did not do
any and this work was sent out by Transport to a local
garage in Watertown. Between August 1 and September
15, 1968, Hoffman earned $256.89 - during the same
period in 1967, he earned $939.57. The mere fact that
Hoffman and Jones accepted other employment will not
deprive them of the rights under the Act." The intent to
resign, acceptance of other employment, and the reasons
for signing resignation slips or waivers of reinstatement
are always questions of fact.
Dennis Jones credibly testified that between May 27
and July 5 he was continually available for work, but
admitted that on a few occasions he refused hauls on a
weekend because it was offered to him after management
had failed to dispatch him during the week. It is
somewhat difficult to ascertain the exact status of his
earnings following his return due to the fact that he did
not work between June 7 and June 17. Jones says he was
available at all times and Respondents maintain he
requested 10 days off However, for the 2 weeks pay
period of June 16 to June 30 - he merely earned $160.79,
and whereas his earnings for 2 weeks period immediately
preceding the strike were between $340 and $406. I am
satisfied that his low 'earnings after returning are the
results of Respondents' continuing discrimination against
him. Therefore, Dennis Jones, like Hoffman, should not
be considered to have voluntarily severed his employment
relationship with Respondents."
As pointed out by the General Counsel, Respondents'
Exhibit No. 68 shows that for each month during the
period January 1968 through October 1968 the total
mileage driven by Respondents' trucks was greater than
during each corresponding month in 1967, and since
Respondents' drivers were paid by the mile the potential
earnings were there. Respondents simply were not
assigning the work to the returning strikers.
The General Counsel concludes his arguments as
follows-
Even now the work force remains adulterated with
owner-operators and employee drivers hired after the
strikers offered to return to work. [e.g., Christopherson,
Rep. Exh. 61; Krossin, Resp.. Exh. 62; Moerman,
Grass, Huber - Tr. 1311, L. I - Tr. 1312, L 11.]
Whatever work is available belongs to the alleged
discriminatees and any non-strikers who may have been
on the payroll before the strike began. Strikers who
suffered a loss of earnings as a result of Respondents'
adulteration of the work force after their offer to return
are entitled to be made whole. Drivers who dedicated
runs were taken away from them are entitled to be
offered such runs unless they no longer exist. They are
also entitled to full reinstatement of insurance benefits
and all other rights and privileges.
In concluding this phase of the case, it should also be
mentioned the testimony of Schuttler wherein he states
"Frank Hoffman died on February 25, 1969 , following a very brief
illness Hoffman 's heirs are entitled to Hoffman 's backpay, computed to
the date of his death , plus all insurance and other benefits which would
accrue if Hoffman had been fully reinstated at the time of his death
"On or about July 9 - Mrs Dennis Jones signed a document which
stated that her husband had received all of his pay and was quitting his job
with Transport . As previously indicated, this incident can no way be
controlling on the issue of facts presented and decided in the proceeding
before me
TRANSPORT, INC. OF SOUTH DAKOTA 487
that during the summer of 1968 the earnings of drivers
had decreased except for drivers on dedicated runs In this
respect it is noted that prior to the strike Dykstra, Witt,
Dennis Jones, Hiney and Sweeney were all driving
dedicated hauls but that after returning in the spring and
summer of 1968 Sweeney was the only driver assigned to
dedicated runs On direct-examination Sifrar was asked
about the general situation of the Respondents in April,
May, June, and July 1968. He replied "We lost some
business, we gained some business, but not because of a
strike We gained some business because of a natural
growth that seems to prevail in the petroleum business -
4 to 5 percent growth per year in consumption "
The General Counsel amended the complaint at the
hearing to allege that on or about February 4, 1968, John
Jones was discharged because of his concerted activities.
The record shows that John Jones was a driver for Lloyd
Ward from 1961 until the date of his discharge on
February 4, 1968. Jones was a driver for Transport during
the union campaign of 1956 and he joined the Teamsters
Union at that time. It appears he was one of the drivers
who voted 10-0 for the Union in 1956, and he was the last
union driver who remained on Transport's payroll after
Transport switched to owner-operators following the
Union's certification in 1956 (Case 18-RC-2650).
Therefore, Respondents were well aware of Jones' union
sympathies in 1956. As pointed out, Transport never
signed a contract with the Union following the
certification, and Jones voluntarily left Transport about 9
months later. In 1960, Jones reapplied for work with
Respondents, and after questioning him concerning his
union membership and learning that his membership had
expired - Sifrar rehired him
In about mid-January 1968, Jones and drivers Hiney,
Dykstra, and Witt met with Dunlavy and discussed what
these drivers believed to be the improper or unfair
assignment of dedicated runs to newer drivers. In the
conversation Jones told Dunlavy, "It is just deals like this
that make the guys want the union in here." Dunlavy then
agreed to take the matter up with Sifrar.
On or about February 2 - Lloyd Ward showed Jones
a letter signed by Sifrar In this letter Sifrar informed
Ward that Jones should resign or be discharged because
he was continually stirring up trouble among the drivers
of Ward and A-I 25 Jones testified that Lloyd Ward then
explained "I didn't have a thing to do with it, Jones, I feel
Just as bad about it as you do, but Ernie [Sifrar) insisted
that I get rid of you." Jones refused to resign and was
then discharged.
John Jones testified that on two occasions he had
complained to management about haul assignments but
stated he did not cause any trouble among the other
drivers Hiney testified that Jones never had any trouble
with him or with any of the other drivers."
The General Counsel maintains that because of the
mid-January discussion with Dunlavy - Respondents
decided that Jones was still a potential union supporter,
"See G. C. Exh 16
"Jones drove dedicated hauls during most of his employment period
preceding his discharge
"There is some confusion in this record as to when Jones signed his
authorization card in the present campaign but he finally concluded that it
was after his discharge His card was not produced nor is it relied upon to
show a majority in the unit Following his discharge , he then was active in
getting five other drivers to sign authorization cards . On February 28, -
the Union filed a charge in 18-CA-2564 against Transport alleging the
discriminatory discharge of Jones, and Jones stated an agent of the Board
then interviewed him concerning the charge and he gave two affidavits
and also points out that concerted activity need not be
union activity to assure protection of the Act."
It is well settled by the Board and the Courts that the
joining in protests or demand , even by a small group of
employees , if in furtherance of their interests as such, is
concerted activity protected by the Act. It is not necessary
that union activity be involved and the mantle of
protection extends to both union and nonunion employees.
"Mere griping" about a condition of employment is not
protected , but when the "griping" coalesces with
expression inclined to produce group or representative
action , the Act protects the activity Mushroom
Transportation Co. v N L R. B., 330 F 2d 683 , 855 (C.A.
3). It is also well established that the cohesiveness of the
concerted activity need not be more than the suggestion of
group action."
In substance here, several of the drivers had a gripe
about the assignment of new employees to dedicated
hauls, and in mid-January assembled at the Sioux Falls
terminal . Mainly through Jones they presented their
grievance to management represented at the meeting by
Dunlavy. Even standing alone , I believe this was concerted
activity sufficient to shield Jones from discharge.
However, Jones then specifically told Dunlavy that
because of these situations "the guys want the union in
here." This remark further reflects Jones' desire to act for
himself and the group of employees adversely affected in
the assignment of new men over senior drivers to certain
dedicated runs, and it also appears to me the subsequent
discharge of Jones was directly related to this concerted
activity In the letter by Sifrar to Ward in regards to the
resignation or discharge of Jones - Sifrar even admits
group action by stating Jones had been stirring up trouble
among "other drivers" and that he did not want to get
excited "over a bunch of complaints made by people who
would probably not have made them if there was not
someone urging them to do so."
In final argument in respect to Jones - the General
Counsel states the following:
Jones' previous union sympathy and membership which
was known to the Respondents , coupled with his
reference to the Union in his conversation with Dunlavy
in the drivers' room , made Jones a prime target for
discharge when Sifrar learned about the drivers'
grievance None of the events which occurred after
Jones' unlawful discharge change the fact that he is a
discr iminatee. Therefore , Jones is entitled to
concerning the matter (Resp Exh 16 and 17). The Respondents argued
that the charge was then dismissed , while the General Counsel maintains
that the Union requested a withdrawal of this charge and which was
approved in April without prejudice by the Regional Director However,
the present amendment to include John Jones as a discriminatee is based
and alleged on the instant charge and complaint involved herein
"In Guernesy-Muskingum Elec . Co-op, Inc, 285 F 2d 8(6th Cir ), the
grievance involved the appointment of Larry Miller, a son-in-law of a
company executive, as foreman His father- in-law announced the
appointment of some of the employees as follows. "Now , Larry don't
know a damn thing about it, but he is going to be your foreman " The
other employees, who felt that one of their own number would be more
qualified for the supervisory post, discussed the problem among
themselves, and at various times each man in the crew went individually to
complain to a management representative . The company 's general manager
was "damned unhappy" about the complaints of the employees so he fired
one of them for "cause " This was held to be an unfair labor practice
Even though the employees had not communicated that a "group" had
existed , and management may have inferred that it was dealing with
individual gripes, the consensus of the affected, unhappy employees was
sufficient to support a finding that the activity was in concert and,
therefore , protected
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reinstatement, backpay, and all the rights and privileges
which is previously enjoyed.
In accordance with my discussion above I am in
agreement, and so find.
In relationship to the 8(a)(5) allegation - the General
Counsel states in part, the following "That Respondents'
refusal to recognize and bargain with the Union was not
grounded upon a good-faith doubt of the Union's majority
status, but was a part of a total course of conduct
calculated to destroy the Union's majority; and that such
conduct, in and of itself, involved numerous independent
violations of the Act which belie any claim of good-faith
doubt Therefore, the Union is entitled to an order
requiring that Respondents recognize and bargain with the
Union in good faith "
Sifrar testified that in late March, management heard
rumors of a possible work stoppage, but they thought it
was an employee effort as occurred in 1966.29 Sifrar stated
he received the Union's demand letter for recognition on
April 1, and he assumed the letter pertained to employees
of Transport, Inc., of South Dakota, but he noticed this
letter was sent from Moorhead, Minnesota, with a copy to
Pitsenbarger at Moorhead - so he did not know what
was meant by the unit. Sifrar explained that in various
other localities in the area Transport have 25 to 26
independent contractors hauling petroleum for them on
occasions and representing approximately 35 percent of
their gross volume - so he could not definitely ascertain
whether the unit included only employees paid by
Transport, or whether it included all of the people
operating under their I C.C. and P.U C rights. Sifrar
related that on April 1, Floyd Conn - a driver and
employee for Transport at Mitchell, South Dakota - was
in the Sioux Falls terminal and inquired if he should
attend the Union meeting After attending the meeting,
Conn informed Sifrar he signed an authorization card
because the Union told him if he did not he would lose his
25 years of pension and other union benefits. Sifrar stated
his driver at Yale, Cliff Anderson, called Sioux Falls and
told them he had signed an authorization card to get the
Union "off his back", that Jack Mitchell, Transport's
employees at Rock Rapids, Iowa, had voluntered the
informed to the effect he had never been approached to
sign a card; that mechanic Rus Prince told him he had not
signed a card, and Frank Hoffman at Watertown, had
assured Dunlavy he had no knowledge of any work
stoppage, and therefore, in consideration of all these
factors, there was a good-faith doubt in believing the
Union did not represent a majority of the employees.
Herrmann. stated that when he received his separate
letter from the Union requesting recognition on about
April 4, written by Mcllvenna on April 3, as aforestated,
he took it for granted that the Union had "probably"
signed up all his drivers; but "wondered if some of them
hadn't been talked into it." Herrmann wanted the matter
settled by a secret election.70 Lloyd Ward testified he
thought the Union was claiming it represented the
employees of Transport and not his drivers, could not
recall seeing the Union's April 3 demand letter written
specifically to Ward, but agreed that after the strike
started - Sifrar informed him a demand for recognition
had been made with respect to the drivers at the Sioux
Falls terminal Transport's attorney stated that in his
discussion with Mcllvenna on April 3 he was only
"It appears that in 1966 no union was involved , but some of the drivers
presented several demands to the Respondents , and in so doing informed
management they would not be at work unless their demands were met
interested in the five drivers of Transport - the three at
Watertown - the one in Wolsey, and the driver at Rock
Rapids.
Normally, an employer may insist on a
Board-conducted election. Such an election conducted in a
"laboratory atmosphere" is the most accurate and secret
method for determining the employees' true desires,
although it is not the only method Where an employer
has destroyed the "laboratory atmosphere" by unfair
labor practices, calculated to affect the Union's majority
and the outcome of the election, as here, the Board has
held that this conduct, by its nature and timing, colors an
employee's expression of good-faith doubt, and has
recognized an alternative method of determining a
Union's majority status - by a count of signed
authorizations." In order to determine the validity of a
claim of good faith, the Board looks to the employer's
entire course of conduct. An employer who fails with good
reason to respond to bargaining requests of a union which
represents a majority of its employees, and embarks,
instead, on a course of improper conduct which is either
calculated to or tends to destroy that majority, does not
demonstrate the good faith required to justify its failure to
bargain. The Respondents here, when faced with the
Union's request for recognition embarked on an extensive
course of illegal conduct which was designed to destroy
the Union's majority, and the numerous and repetitious
nature of the 8(a)(1) violations have been fully described
above This conduct began at the time of the crucial
organizing campaign and continued into subsequent
periods, and in this respect sufficient to bring these
violations within the Board's Joy Silk Mills doctrine.
Moreover, other incidents also show there can be no real
substance in the claims of good-faith doubts by
Respondents. On April 3, Mcllvenna met with Transport's
attorney and in his continued demand for recognition
discussed the unit, as aforementioned, and although
Mcllvenna remained flexible and willing to discuss the
unit description as well as its composition, he never
abandoned his claim that Transport, Ward, and A-1 were
joint employers for purposes of union representation. The
evidence further shows that the Respondents also
adequately understood the Union's request to include the
drivers at both their main terminal and sub-terminals, and
the testimony of Sifrar relating his union conversations
with Conn, Anderson, Mitchell, Hoffman, and Prince, as
aforestated, duly establishes such understanding.
Testimony by Sifrar and Herrmann purporting to show
aspects of pressure on card signers, is not adequately
reflected in this record. Floyd Conn admitted some
conversation with Mcllvenna about his immediate
eligibility for pension rights at the time he signed his card.
However, it appears Conn was mainly interested in having
this discussion in attempts to ascertain what benefits he
had - if any Conn testified he was "still mixed up" on
his pension matter. He also stated that when he signed his
card he wanted the Union to represent him. Clifford
Anderson, at the subterminal in Yale, testified that when
Sifrar asked him why he had signed his card - he replied,
"All the rest of them had," and so he could not see any
reason why he should not sign his card By close
examination it appears to me this conversation with
"None of the parties officially requested or filed a petition for a
Board-conducted election
"In N L R -B v Gissel Packing Co . Inc, 395 U S 575, the Supreme
Court reaffirmed the use of authorization cards as an acceptable means of
creating representative status and a duty to bargain
TRANSPORT, INC. OF SOUTH DAKOTA 489
Anderson actually refutes a good-faith doubt rather than
supporting one. Sifrar was well aware that the Union was
not including mechanics in the unit - so his testimony
that mechanic Rus Prince did not sign a card means
absolutely nothing
In concluding that Respondents did not have a
good-faith doubt as to the Union's majority - first, as
noted above, the Respondents did not accept the
authorization cards when Mcllvenna offered them, but
rejected his continuing request for recognition by taking
the position that all three companies were separate
entities Second, it did not ask for an election at any time
during the period relevant herein Third, it made no effort
to resolve any alleged doubt. Fourth, when its employees
struck on April 3, it then had open and convincing
evidence of the Union's majority but nevertheless persisted
in its refusal to recognize the Union." These
circumstances in themselves demonstrate a course of
conduct inconsistent with any doubt as to the Union's
majority, but the matter need not rest here for the
Respondent engaged in unfair labor practices calculated to
dissipate union support, as evidenced by threats and
interrogations previously detailed, by Respondents' refusal
to take strikes back and discharging them after their
unconditional offer to return, by mere ostensible
reinstatement and refusal to give equivalent work, and by
dealing and attempting to negotiate individually with
drivers in the unit."
In view of all the foregoing, I have found and
concluded that Respondents did not have a good-faith
doubt as to the Union's majority and its refusal to
recognize and bargain with the Union was violative of
Section 8(a)(5) of the Act.34
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondents set forth above in section
III, and therein found to constitute unfair labor practices
in violation of the Act, occurring in connection with
Respondents' business operations as set forth above in
section I, have a close, intimate, and substantial
"A total of at least 11 employees initially participated in the strike or
picketing at the Watertown and Sioux Falls terminals.
"Under the Supreme Court' s opinion in Gtssell Packing . supra, an
employer's improper motivation in refusing to recognize a union on the
basis of signed cards is no longer necessarily dispositive of the instant
issue It is now incumbent upon the Board to appraise the relative
reliability of the cards, on the one hand , and the election process, on the
other, as a gauge of employee sentiment . In making such appraisal, the
Board is required to consider the impact of any employer unfair labor
practices Thus, where the employer has engaged in unfair labor practices
of such an "outrageous" or "pervasive " nature that the invocation of
traditional remedies affords no guarantee that , an election will provide a
more accurate index of employee sentiment than the cards , the Board may
rely on the cards as a basis for finding an unlawful refusal of recognition,
remediable by a bargaining order In Gissell Packing , the Court found
such a situation to exist where the employer's misconduct was limited to
threats of a shutdown Here, Respondent ' s unfair labor practices
comprised not only such threats, but also extensive interrogation and then
the discharge of the bulk of the Union adherents It follows that a finding
of unlawful refusal of recognition and the issuance of a bargaining order
are appropriate here
"To the extent that Respondents ' contention may be construed as
indicating a doubt as to the appropriateness of the unit - it is well settled
that "a good-faith but erroneous doubt as to the appropriateness of the
unit is not a defense to an otherwise meritorious charge of a refusal to
bargain" (Southland Paint Company. Inc. 156 NLRB 22, 23) See also
Owego Street Supermarkets , Inc, 159 NLRB 1735
relationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes,
burdening and obstructing commerce and the free now of
commerce
V. THE REMEDY
Having found that Respondents engaged in the unfair
labor practices set forth above, I recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policy of the Act as follows-
I have found that Respondents discriminatorily
discharged John Jones on February 4, 1968, because of his
concerted activities, and recommend that Respondents
offer him immediate and full reinstatement to his former
position, or if that position is unavailable due to a change
in Respondents' operations, then to a substantially
equivalent position, without prejudice to his seniority and
all other rights and privileges Respondents shall make
him whole for any loss of pay he may have suffered by
reason of Respondents' discrimination against him, by
payment to him of a sum equal to that which he would
have received as wages from the date of his discharge until
the date Respondents reinstates him, less any net interim
earnings . Backpay is to be computed on a quarterly basis
in the manner established by the Board in F W.
Woolworth Company, 90 NLRB 289, with interest at the
rate of 6 percent per annum to be computed in the
manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716.
I have found that the strike which took place on April
3, 1968, was caused by unfair labor practices of
Respondents As unfair labor practice strikers,
Respondents' striking employees named herein were, upon
their unconditional application for reinstatement on April
17, entitled to full reinstatement and Respondents' failure
to reinstate them to equivalent work was a violation of
Section 8(a)(3) of the Act. I shall recommend that
Respondents offer such employees immediate and full
reinstatement to their former or substantially equivalent
positions, dismissing if necessary, any replacements
employees hired during the strike and make such
employees whole for any loss of pay they may have
suffered by reason of Respondents' discrimination against
them. This shall be done by payment to each of them of a
sum of money he normally would have earned from April
17, 1968, to the date of Respondents' full and equivalent
reinstatement less his net earnings in accordance with the
Woolworth and Isis Plumbing formula."
It will be further recommended, in view of the nature of
the unfair labor practices the Respondents have engaged
in that it cease and desist from infringing in any manner
upon the rights guaranteed employees by Section 7 of the
Act.
CONCLUSIONS OF LAW
1. The Respondents are joint employers engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
"As mentioned previously Sweeney returned to work on April 18, and
for reasons given herein the backpay cut-off date for Hiney in August 22,
1968, and for Hoffman February 25 , 1969. A few others may have reached
their average prestrike earnings - and therein full reinstatement - in a
relatively short time after they were rehired All such matters can be
ascertained during the compliance stage
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2 The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All drivers of Transport, Inc., of South Dakota, A-I
Transport, Inc., and Lloyd Ward, Inc., at the Employers'
Sioux Falls and Watertown, South Dakota terminals;
excluding all other employees, guards, and supervisors
constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act.
4. The Union has been at all times material herein, the
exclusive representative of all employees in the aforesaid
appropriate unit for the purposes of collective bargaining.
5. Commencing on April 3, 1968, and continuously
thereafter, Respondents have refused to recognize and to
bargain collectively with the Union, thereby violating
Section 8(a)(5) of the Act.
6 The Respondents discriminated against John Jones
by discharging him on February 4, 1968.
7. The strike was an unfair labor practice strike, and
the discharge of the strikers was an unfair labor practice
within the meaning of Section 8(a)(3) and (1) of the Act.
8. By conduct set forth earlier herein, the Respondents
independently violated Section 8(a)(1) of the Act in its
unlawful interrogations and threats.
9 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings and
conclusions, and upon the entire record in this case, it is
recommended that the Respondents - Transport, Inc. of
South Dakota, A-I Transport, Inc., and Lloyd Ward,
Inc., their officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Illegally interrogating employees as to their union
intentions, sentiments, and activities.
(b) Threatening loss of benefits and discharges for
engaging in union and protected concerted activities
(c) Discharging or otherwise discriminating against its
employees because they engage in lawful strike activity
(d) Refusing to bargain collectively with the Union as
the exclusive representative of all drivers in the unit set
forth above
(e) In any other manner interfere with, restrain or
coerce its employees in the exercise of their rights to
self-organization to form, join or assist any labor
organization, to bargain collectively through
representatives of their own choosing and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or to refrain from all such
activities
2. Take the following affirmative action designed to
effectuate the policies of the Act
(a) Offer to John Jones immediate and full
reinstatement to their former or substantially equivalent
position without prejudice to their seniority or other rights
and privileges and make them whole for any loss of pay
suffered as a result of the discrimination against them.
(b) Offer those strikers who unconditionally applied for
reinstatement on April 17, 1968, to immediate and full
reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority and other
rights and privileges, and make each of them whole for
any loss they may have suffered by reason of
Respondents' discrimination against them, all in accord
with and in the manner set forth above
(c) Preserve and, upon request, make available to the
National Labor Relations Board or its agents, for
information and copying, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records necessary for the
determination of the amount of backpay due under these
recommendations.
(d) Upon request, bargain collectively with the
above-named Union as exclusive representative of all
employees in the above-described bargaining unit, and, if
an understanding is reached, embody such understanding,
in a signed agreement
(e) Post at its terminals in Sioux Falls and Watertown,
South Dakota, copies of the notice attached hereto and
marked "Appendix " [Board's notice substituted for Trial
Exammer's.116 Copies of such notice, on forms to be
provided by the Regional Director for Region 18 shall,
after being signed by a managing representative of the
Respondent, be posted immediately upon receipt thereof,
and be maintained by it for a period of 60 consecutive
days thereafter in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondents to
insure that such notices are not altered, defaced, or
covered by any other material
(f) Notify the Regional Director for Region 18, in
writing, within 20 days from the date of the receipt of this
Recommended Order what steps Respondents have taken
to comply herewith."
"In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
fmdmgs, conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions , and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board ' s Order is enforced by a judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted
pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
"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 18, in writing, within 10 days from the date of this Order, what
steps Respondents have taken to comply herewith "