3 Staes Trucking, Inc.

National Labor Relations Board - Board Decisions

Sep 21, 1977

232 N.L.R.B. 242 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3 States Trucking, Incorporated and United Mine
Workers of America. Cases 14-CA-9688, 14-CA-
9700, and 14-CA-9714
September 21, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On June 17, 1977, Administrative Law Judge
Melvin J. Welles issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, General Counsel filed limited
exceptions and a motion for leave to join successor
employer. t
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, 2 and conclusions of the Administrative Law
Judge, 3 to modify his Remedy,4 and to adopt his
recommended Order, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, 3 States Trucking, Incorporated, Grandview,
Indiana, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
i. Substitute the following for paragraph l(b):
"(b) Threatening its employees with removal of
operations, discharge, loss of benefits, or other
reprisals for engaging in union activities, and
interrogating them about these activities."
2. Insert the following as paragraph l(c) and
reletter the following paragraph accordingly:
"(c) Failing to recall strikers to their former or
substantially equivalent jobs as these jobs become
available."
3. Substitute the attached notice for that of the
Administrative Law Judge.
General Counsel in his motion asserts that Southern Illinois Minerals
Corporation is a successor employer to 3 States Trucking, Incorporated, and
moves for leave to join Southern Illinois Minerals Corporation as a party to
this proceeding. In the absence of any opposition thereto. General Counsel's
motion is hereby granted.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
232 NLRB No. 45
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
We note that the Administrative Law Judge at one point in his Decision
inadvertently attributes the remark "A union man will never be able to work
at my mine. I'll weed them out one at a time" to Supervisor Shingleton,
when it is clear, as he found elsewhere, that the remark was made by
Supervisor Franklyn.
3 The General Counsel excepted to certain parts of the Administrative
Law Judge's recommended Order and notice to employees. We find ment in
these exceptions. The recommended Order and notice have been modified
accordingly.
4 In accordance with our decision in Florida Steel Corporation, 231
NLRB 651 (1977), we shall apply the current 7-percent rate for periods pror
to August 25, 1977, in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discrimi-
nate against any employees because of their
concerted activities for mutual aid and protection,
or their union activities.
WE WILL NOT threaten our employees with
removal of operations, discharge, loss of benefits,
or other reprisals for engaging in union activities,
or interrogate them about these activities.
WE WILL NOT fail to recall strikers to their
former or substantially equivalent jobs as these
jobs become available.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights guaranteed by the National Labor
Relations Act.
WE WILL offer reemployment to John Fischer
and William Avery and WE WILL pay them for
losses suffered as a result of our having discrimi-
nated against them.
3 STATES TRUCKING,
INCORPORATED
DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES, Administrative Law Judge: This case
was heard at Murphysboro and Carbondale, Illinois, on
December 14, 15, and 16, 1976, based on charges filed on
October 12, 18, and 26, 1976, and a complaint issued
November 19, 1976, alleging that Respondent violated
Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended. The General Counsel and Respondent
have filed briefs.
Upon the entire record in the case, including my
observation of the witnesses, I make the following:
242
3 STATES TRUCKING, INCORPORATED
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER AND THE LABOR
ORGANIZATION INVOLVED
Respondent is an Indiana corporation engaged in the
business of owning and operating coal mines, with its
principal office at Grandview, Indiana, and other places of
business in the States of Illinois and Indiana. During the
year 1976, it both received and shipped goods and
equipment valued in excess of $50,000 from and to points
outside the States of Illinois and Indiana. I find, as
Respondent admits, that it is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act. United Mine Workers of America is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges that Respondent violated Section
8(a)(l) by the conduct of management officials and
Supervisors Franklyn, Shingleton, and Burks, in threaten-
ing employees with discharge for supporting the Union,
threatening plant closure or moving if the Union was
successful, threatening the loss of employee "royalty
checks" if the Union was successful, telling an applicant for
employment he had to "drop" his union card before being
hired, and telling employees they would be discharged for
"talking union." The complaint also alleges that Respon-
dent violated Section 8(a)(3) by refusing to reinstate striker
William Avery to his former job, and by discharging
employees John Fisher and Frank Mabry because of their
union activities.
With respect to the 8(aXl1) allegations, in each and every
instance the testimony of the General Counsel's witness or
witnesses was denied by the asserted perpetrator, so that
only by resolving credibility can the 8(aXl1) question be
answered. With respect to the refusal to recall Avery, the
facts are not in any material dispute, the questions being
primarily one of law. Finally, with respect to the discharges
of Mabry and Fisher, although there are some differences
between the testimony of the General Counsel's and
Respondent's witnesses requiring resolution, the root
question is Respondent's motivation in effecting the
discharges, and credibility does not loom large in making
the necessary determinations.
B. The Refusal to Reinstate Avery
William Avery had been employed by Respondent for
about 3 weeks in September 1975, as a helper on an
exploratory drill. On September 29, he joined the Union's
strike.t Thereafter, on November 20, the Union made an
unconditional offer to return to work. At that time, Avery's
job as a helper on the exploratory drill was not open. It
i The Company at the hearing and in its brief contended that the strike
itself was unlawful (in violation of Sec. 8(bX7)(C) of the Act), and therefore
that Avery was not protected. The predicate for this contention was a
companion case heard by me in which the General Counsel alleged that the
strike was unlawful. As that case has since been withdrawn, there is now no
basis for Respondent's contention in this respect.
became open on August 20, 1976, and Respondent hired a
new employee, Peterman, to fill it. On its face, hiring
Peterman rather than Avery violated Section 8(a)(3) of the
Act. Respondent contends, however, that it hired Peterman
rather than recalling Avery because Peterman "was
considered a more qualified man," and that the job had
"added responsibilities" that required the extra qualifica-
tions posed by him. Respondent also contends that it did
not have a "discriminatory motivation" in refusing to
rehire Avery. I do not regard such a motivation as
necessary to a finding of a violation, for if in fact Avery
should have been reinstated, Fleetwood and Laidlaw2 make
unnecessary any specific evidence of unlawful motivation.
The General Counsel also contends, alternatively, that,
even assuming Avery was not entitled to be recalled to his
former position, he was entitled to recall as a laborer when,
also on August 20, Respondent hired three laborers who
had never before worked for the Company.
The principal "changes" in the exploratory drill opera-
tion, as testified to by General Manager James Burks, are
that a larger truck is now used, and that a "dozer" is hauled
along with the drill rig to clear areas into which a drill must
be moved. The testimony of Avery shows, and some of the
testimony of Burks seems to contradict, that the operation
of the larger truck was essentially no different from that of
the smaller truck, and that Avery could handle that aspect
of the "change." Avery stated that he was not qualified to
operate a dozer (Peterman was), but there is no clear
showing in the record that the helper, rather than the "lead
man" (operating the exploratory drill was a two-man job)
had to be proficient on the dozer. 3 Furthermore, it seems
obvious that Respondent would not have discharged Avery
for the lack of dozer-operating ability had he remained on
the job. The fact that Peterman may have been "more
qualified" is thus no basis for failing to recall Avery. A
company cannot refuse reinstatement to a striker otherwise
entitled thereto merely because a "better man" is available.
Even if Respondent is correct, contrary to my finding, that
Avery was not, on August 20, qualified for the driller
helper job as then constituted, the General Counsel is
correct in contending that he was entitled at least to be
offered one of the laborer jobs filled on that day with three
new men. So the violation of Section 8(aX3) in not recalling
Avery is crystal clear, and only the quantum of backpay
might be affected if the failure to recall Avery to the driller
helper position from which he went on strike was excused
because of the dozer equipment being added to the drill rig
and truck formerly used. I find, accordingly, that Respon-
dent violated Section 8(a)(3) and (I) of the Act by failing to
recall Avery to work on August 20, 1976.
2 N.LR.B. v. Fleerwood Trailer Co., Inc.. 389 U.S. 375 (1967). and
Laidlaw Corporation, 171 NLRB 1366 (1968). enfd. 414 F.2d 99 (C.A. 7.
1969).
3 Burks' testimony that "it was necessary that the man that was working
with the driller be able to have the ability to operate a dozer" does not
explain why the driller himself could not operate the dozer.
243
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Alleged 8(a)(1) Violations
Credibility
With the exception of Mabry and Fisher, the alleged
discriminatees herein, the General Counsel's witnesses had
no particular axe to grind. Some of them were still
employed by Respondent at the time of the hearing. One,
Sanders, was a "close friend" of Supervisor Franklyn, who
had hired him. Their testimony did not appear to be
contrived, carried a "ring of truth," and is credited over the
flat denials of Respondent's witnesses Shingleton and
Franklyn. As a particular example demonstrating the basis
for my credibility resolutions, consider the conflict between
the testimony of employee Darrell Sanders and Superinten-
dent Nathan "Sonny" Franklyn. As noted above, Sanders
was still working for the Company at the time of the
hearing and was a good friend of Franklyn's. He testified
that on November 28 he was having lunch with Franklyn
in the trailer (used as an office), and that Franklyn
indicated his feelings about certain employees "he wasn't
especially fond of.. . for their feelings about the union
.... " Franklyn then pulled out the timecards, which were
admittedly kept in the trailer, said, "Well, let's take a vote
here," started to separate the cards into "union" and "non-
union" supporters, and ended up counting 11 against and 7
for the Union. The employees in the bottom seven cards,
those for the Union in Franklyn's estimation, Franklyn
called his "shit list," and said he would "never forget
them." On cross-examination, Sanders seemed particularly
candid, stating that he started the conversation with
Franklyn, asking Franklyn if he thought the employees
would go on strike, and that he also asked Franklyn why he
thought the employees would not "go union." Sanders also
stated that he never heard Franklyn use the term "shit list"
at any other time. Franklyn flatly denied showing Sanders
any timecards of people he believed were for or against the
Union, as well as denying that he used the term "shit list."
It is not conceivable to me that Sanders, a friend of
Franklyn, hired by him and still working for him, would
have made up the incident in question. There is nothing in
the record to indicate that Sanders had attended union
meetings, or was even in favor of the Union.4 There is thus
no reason at all for him to have manufactured this
relatively minor incident. Franklyn's flat denial that it
occurred must therefore be discredited, and his other flat
denials of the testimony of Charles Johnson, Wayne
Helberg, Frank Mabry, and John Fisher concerning other
8(aX1) statements attributed to him also falls. Without
detailing any of the testimony involved, the aforesaid
reasons for resolving credibility apply equally to the
conflicts between Supervisor Shingleton and employee
witnesses Erskine Rich, Tim Ward, Mabry, and Fisher.
With respect to a final 8(aXl) allegation, involving
Respondent's general manager, James Burks, and employ-
ee Tim Ward, the conflict in testimony is minor in nature.
According to Ward, when he was interviewed by Burks for
a job with Respondent, and Ward told Burks his prior
4 Franklyn's own testimony was that he asked Sanders if the latter
wanted to go to the union meeting being held that afternoon, and Sanders
replied, "Well. I don't know."
I Ward had testified that when Burks told him he would have to drop his
experience had been at a company called Consolidated, at
its No. 5 Mine (a UMWA mine), Burks asked Ward if he
had a union card and, when Ward said that he did, told
Ward he would have to "drop it before he could hire me
because they didn't hire Union men." Burks did not
specifically deny asking Ward whether he had a union
card; he stated, "I don't know that I questioned the
individual. I was told by the individual that he had been
working at a mine who I know, by general knowledge, to
be a union mine." He further testified that he told Ward,
"We are operating . .. as a nounion mine," and that Ward
then replied, "Well, it doesn't make any difference to me.
I'll turn my card in."5 As stated earlier, there is no great
difference between the testimony of the two witnesses, both
of whom impressed me as candid and honest. Burks' own
testimony makes clear, as the General Counsel contends,
that he was conveying to Ward the notion that "being a
UMWA member would be a barrier to obtaining a job with
three States." And Ward's own testimony makes clear that
Ward knew this, and that at least in his belief the Union
would not let him work for a nonunion company, unless he
dropped his card. In these circumstances, I do not believe
any questioning that occurred was coercive in nature, and
do not find a violation of the Act as to this incident. As to
all the other incidents, which I detail below, the facts speak
for themselves and establish violations of Section 8(aXl1) of
the Act. These incidents, including the supervisor or
official involved, and the employee or employees who
testified thereto, follow:
1. Sonny Franklyn, about August 10, told employee
Helberg, after saying to him, "I don't know why you guys
want a union," "I think we treat you pretty nice myself. If
the Union gets in, we will move away."
2. Shingleton told employee Erskine Rich that "the
guys who were going around causing trouble and talking
about getting a union would be weeded out," and that "the
ones that went along with the company, that they would
take care of them."
3. Franklyn, when interviewing Mabry for the latter's
employment with the Company, asked Mabry how he felt
about the Union. When Mabry replied that he could work
either way, whatever suited Franklyn, Franklyn said that
"the company had been broke by the union at one time
and they wouldn't be broke again."
4. On either August 8 or 15, Franklyn told Fisher that
"if the company ever goes union, they'll pack up and leave
and move to Wyoming." Franklyn added that "A union
man will never be able to work at my mine. I'll weed them
out one at a time."
5. About September 6, Franklyn came out of his office
(in the trailer) and walked over to a group of men, saying,
"I want you all to hear this. Anyone found talking about
union activity will be immediately discharged, and this
includes the lunch hour."
6. As noted above, Franklyn, about November 28,
pulled a bunch of timecards, separating them into union
and nonunion, and giving employee Sanders a count of II
UMWA card, he (Ward) said, "Yes," adding, and it is not clear whether this
was his view expressed at the hearing or his response to Burks, "You know I
have to forfeit anyway because the union wouldn't let me work for a non-
union company."
244
3 STATES TRUCKING, INCORPORATED
nonunion and 7 union employees, going on to say that the
bottom 7 were troublemakers, and that he would lay them
off if he had a chance, and that these 7 were on his "shit
list."
7. Ward, Fisher, and Mabry testified that on numerous
occasions Supervisor Shingleton told them that, if the
Union came in, the Company would pack up and move,
and that was why he was living in a motel. He also told
Fisher and Mabry that, if the Union came in, the
employees would lose their royalty checks. Shingleton also
said, on a number of occasions, that neither he nor
Franklyn could work with union men, and that the
Company would move to Indiana if it was forced to go
union.
I find that, by the foregoing conduct, Respondent has
violated Section 8(a)(l) of the Act.
D. The Alleged 8(a)(3) Violations
Frank Mabry and John Fisher were discharged on
October 7, 1976, the discharges arising out of an incident in
which two half sticks, rather than the one half-stick per
instructions, were placed in a hole preparatory to a
dynamite "shot" to be made. The testimony is conflicting
as to exactly what occurred. According to Fisher, Shingle-
ton told him to help Mabry pack the holes, Mabry having a
little earlier been sent down to help Supervisor Jack Dyer
do the same thing. In each instance, the employee
protested lack of knowledge about dynamite, and Shingle-
ton instructed them to perform the work or go home.
Fisher cut a stick of dynamite in half, and placed it in an
explosive bag, handing the other half stick to Mabry, with
Shingleton and Dyer standing by watching. Shingleton and
Dyer then left. Fisher and Mabry loaded two more holes
and were working on a fourth when Shingleton, Dyer, and
drag-line operator Harold Yates returned to where Mabry
and Fisher were working. Shingleton asked Fisher, "How
many sticks of dynamite did you put in that sack?" Fisher
responded, "I put half a stick in just like you told me to."
Shingleton then told Fisher he was lying. Shingleton asked
Mabry the same question, but Fisher does not recall
hearing Mabry's answer. Shingleton then told Fisher to
pull the sack out of the hole.6 Fisher did so. Shingleton
started examining the sack, and while he was doing so, the
other half stick of dynamite fell out of it. Shingleton then
told both men they were fired for lying to him. Mabry then
grabbed Fisher, said, "Come on, John, let's go," and they
did so.
Fisher testified that he did not know at the time how the
extra half stick got in the bag, but that Mabry told him
later that it was he who put it there. Fisher subsequently
stated, during cross-examination, that neither Shingleton
nor Dyer told him not to put the other half stick of
dynamite in the holes. Mabry's testimony is substantially
the same as Fisher's, except that he testified that he said to
Shingleton after the second half-stick of dynamite made its
appearance, "John Fisher didn't lie. He put the half stick in
just like he said."
` The dynamite stick was placed in a sack of explosives before being
lowered into (he hoe and tamped.
Shingleton testified that he told Fisher and Mabry to put
"just a half a stick and a half a bag of ammonia nitrate,
that's all I want," into each hole. He and Dyer left to check
something, and when they returned, after about 5 minutes,
Fisher and Mabry were loading a bag of ammonia nitrate,
and they "were grinning." Shingleton asked Fisher how
much dynamite he had there, and Fisher said, "Just a half a
stick, Ray, just like you said." Shingleton then asked Fisher
to pull the bag out of the hole, and as he was doing so
Shingleton "looked at both of them and Frank Mabry just
rolled his eyes back." Shingleton started to feel around in
the bag, and finally felt the other half stick of dynamite. He
asked Mabry and Fisher why they lied, and they "shrugged
and just dropped their head." He then told them that he
was letting them go, saying, "I can't use guys that I can't
turn my back 5 minutes on." Asked further on direct
examination, "What was the reason why you fired both
these men?" Shingleton replied, "Because they just outright
lied to me, just standing there and lying, and they'd done
this sort of thing before. You know, work was just a joke to
them." On cross-examination, Shingleton was again asked.
"What is the exact reason for your discharge of Mabry and
Fisher?" and replied, "That they did not follow my
instructions." To "Is there any other reason?" he added,
"Just that the instructions that they hadn't followed prior
to that. Just that they would not follow instructions, period,
up to the dismissal. And I'd had it. That was about the last
straw for me. I'd just had it with them." Shingleton also
testified to previous work deficiencies on the part of both
Fisher and Mabry, and to having warned them about their
work, testimony confirmed by both employees.
The General Counsel claims that the incident in question
was only a pretext, and that Respondent's real reason for
discharging Fisher and Mabry was their union sympathies
and activities. In Fisher's case, these union activities
consisted of attending three union organizational meetings,
and putting UMWA stickers on his vehicles which he
drove to work. In Mabry's case, they also consisted of
attending three union meetings, and in talking with
employees on the job about the Union, saying he was "for
it." Mabry was asked by Franklyn the day before he began
working for Respondent how he felt about the Union, and
replied, as noted above, "I can work either way. Whatever
suits you, suits me." Shingleton, also as noted above, asked
him on several occasions how he felt about the Union. and
how the men felt about it. Mabry's answer was noncommit-
tal. Fisher had been told by Shingleton, as had other
employees, that the Company would move if the Union
came in. Shingleton also told Fisher that "A union man
will never be able to work at my mine. I'll weed them out
one at a time," and that men would lose their royalty
checks if the Union was voted in. On one occasion,
according to Fisher, Shingleton said to him "You damn
union lover," after Fisher left Shingleton holding a board
and went to eat dinner, despite Shingleton having asked
him to stay and finish helping.
There are several puzzling aspects of the October 7
incident that the testimony does not fully resolve. It is not
completely clear, for example, whether the hole in which
245
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the two half-sticks were loaded by Fisher and Mabry was
done before Shingleton and Dyer left the area, or was the
last hole loaded, which Fisher and Mabry were doing when
Shingleton and Dyer returned.7 It is possible that Shingle-
ton saw the two half-sticks being put in, left, and then
decided to confront Mabry and Fisher when he returned,
for Shingleton's explanation that he suspected what had
happened based on Fisher and Mabry "grinning" when he
returned seems rather farfetched. For a "grin" to lead
Shingleton to the precise hole, and to have him "suspect"
(even though correctly) precisely what had been done,
without any background, for Fisher and Mabry had never
performed this type of dynamite loading before, is a bit
more than I can swallow. The fact does remain, however,
that the second half-stick was put into the hole, and that it
was flatly contrary to Shingleton's instructions.8
The offense involved seems to me to be rather a serious
one, not merely a failure to follow some minor order that
was of little consequence or significance. All the testimony,
including that of Shingleton, Dyer, Mabry, Fisher, and
Yates, was to the effect that Mabry admitted, after
Shingleton pulled out the extra half-stick, having put it in,
saying that it was his fault, and that Fisher had not lied
(after Shingleton accused both employees of lying). Neither
at the time of the incident nor at the hearing did Mabry
explain why he put the extra half-stick in the bag. The
General Counsel's attempt to attribute this to the employ-
ees' lack of experience in working with dynamite does not
furnish any rational explanation, for a flat instruction to
the men to use only one half-stick in each bag could
certainly be understood even by men with no experience.
Based on his own testimony, Mabry's union activities were
to attend three meetings and talk to other employees. There
is no particular reason to assume that Respondent, or
Shingleton, Respondent's supervisor, regarded him as a
proponent of the Union. And his own testimony was, as
noted above, that he could "go either way." In the light of
Mabry's rather limited union activities, his admission that
he put the second half-stick of dynamite in the bag, as well
as his failure to protest at the time, and the fact that
immediately after Shingleton said to Mabry and Fisher
"Both of you are fired for lying. I can't work with you
because you lied to me," Mabry (in Fisher's words)
"grabbed ahold of me and he said, 'Come on, John, let's
go,' " I am convinced not only that his discharge was
warranted, but that it was not attributable to his union
activities.
Fisher, on the other hand, did nothing wrong. His own
reactions, when Shingleton and Dyer returned, indicate to
me that he did not know Mabry had put the second stick of
dynamite into the bag, for he responded to Shingleton that
he had put in "just half a stick, Ray, just like you said." I
am convinced, in Fisher's case, that Shingleton seized upon
the incident in question as a pretext to rid the Company of
an employee it believed to be a strong protagonist for the
Union. I believe that Shingleton could not have avoided
seeing the UMWA bumper stickers on Fisher's vehicles,
and do not credit Shingleton's denials in this respect. I also
7 Mabry's and Fisher's testimony suggest that Shingleton and Dyer were
present when the two half-sticks were put in the bag; Shingleton's and
Dyer's testimony pointed the other way.
credit Fisher that Shingleton, on the occasion of Fisher
walking away from him when Shingleton asked him to
continue helping set the 16-foot post, called Fisher a
"damn union lover." Shingleton knew because Mabry told
him that Mabry put the stick in. Respondent witness
Harold Yates also testified that Mabry said, "Well, I put it
there. It is my fault." I agree with the General Counsel's
statement in his brief that "The logical consequence of
Mabry's action would be for him to be discharged."
(Emphasis supplied.) And I have concluded that this
"logical consequence," which did follow, was not a
violation of the Act. But it was not at all a logical
consequence for Fisher to be discharged because of
Mabry's admitted misconduct, and I therefore conclude
that Respondent did violate Section 8(a)(3) and (1) of the
Act by discharging Fisher.
As indicated above, I was not at all satisfied with
Shingleton's "explanation" of why he checked out the
particular bag when he returned to the location where the
holes were being loaded. I am inclined to believe that he
saw Mabry put the second stick in the hole before he left,
decided to go away, then return and fire both men in order
to get rid of Fisher. Had he taken immediate action before
leaving, obviously he would have had no excuse for firing
Fisher. Although this is speculative, the fact that Fisher
was "not guilty" is not, the fact that Mabry admitted his
own guilt is not, and the fact that Shingleton knew of
Fisher's union activities and sympathies is not. The
speculation merely provides a possible explanation for the
sequence of events; it is not necessary to the conclusion,
which I have reached, that Respondent discriminatorily
discharged Fisher.
CONCLUSION OF LAW
By discharging John Fisher because of his union
activities, by failing to reinstate striker William Avery, by
threatening employees with reprisals because of their union
activities, and by interrogating them about those activities,
Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Sections 8(a)(1) and (3)
and 2(6) and (7) of the Act.
THE REMEDY
I shall recommend that Respondent cease and desist
from its unfair labor practices, that it offer reinstatement to
John Fisher and William Avery with backpay, computed
as provided in F. W. Woolworth Company, 90 NLRB 289
(1950), and with interest as prescribed in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962), and take certain
affirmative action in order to effectuate the policies of the
Act.
Upon the foregoing findings of fact, conclusion of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
8 As noted above, Fisher's own testimony was that he replied to
Shingleton's question how much dynamite was put in with "Just half a stick,
Ray,just like you said."
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3 STATES TRUCKING, INCORPORATED
ORDER 9
The Respondent, 3 States Trucking, Incorporated,
Grandview, Indiana, its officers, agents, successors, and
assigns, shall:
I. Cease and desist from:
(a) Discharging or in any other manner discriminating
against employees because they have engaged in concerted
activities or union activities.
(b) Threatening its employees with reprisals for engaging
in union activities, and interrogating them about these
activities.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights
protected by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer John Fisher and William Avery immediate and
full reinstatement to their former jobs or, if these jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
and make them whole for any loss of earnings they may
9 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall. as provided in Sec.
102.48 of the Rules and Regulations. be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
have suffered, in the manner set forth in the section hereof
entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Post at its places of business in Indiana and Illinois
and any other locations where notices to its employees are
customarily posted copies of the attached notice marked
"Appendix." 'o Copies of the notice, on forms provided by
the Regional Director for Region 14, shall be signed by an
authorized representative of the Company and posted
immediately upon receipt thereof and maintained for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places at all locations where notices to employees
are customarily posted. Reasonable steps shall be taken by
the Company to ensure that the notices are not altered,
defaced, or covered by any other material.
(d) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
10 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
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