Allegheny Corp.

National Labor Relations Board - Board Decisions

Mar 2, 1973

202 N.L.R.B. 123 (N.L.R.B. 1973)

JONES MOTOR COMPANY
Jones Motor Company, a Division of Allegheny
Corporation and Joseph J. Grace: Case
6-CA-5959
March 2, 1973
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On January 3, 1973, Administrative Law Judge
Harry H. Kuskin issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in answer to Respondent's exceptions.
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,
findings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
herein modified.
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 and
hereby orders that Respondent, Jones Motor Com-
pany, a Division of Allegheny Corporation, Irwin,
Pennsylvania, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as herein modified.
Substitute the attached notice for the Administra-
tive Law Judge's notice.
' The 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
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect Standard Dry Wall
Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully
examined the record and find no basis for reversing his findings
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten you with injury to your
123
person or with closing down the Irwin, Pennsylva-
nia, terminal because you have acted together for
your common interest or protection.
WE WILL NOT discharge any of you and fail and
refuse thereafter to reinstate you because you
have engaged in union-connected activity or
because you have acted together for your com-
mon interest or protection.
WE WILL NOT in any other manner interfere
with your rights under the Act to form, join, or
help unions, to choose a union to represent you in
bargaining with us, to act together for your
common interest or protection, or to refuse to
participate in any or all of these things.
WE WILL offer to Glenn H. Wilson immediate
and full reinstatement to his formerjob or, if that
job no longer exists, to a substantially equivalent
position without prejudice to his seniority or other
rights and privileges, and make him whole for any
loss of pay suffered as a result of his discriminato-
ry discharge.
JONES MOTOR COMPANY,
A DIVISION OF
ALLEGHENY
CORPORATION
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named indi-
vidual, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
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 compli-
ance with its provisions may be directed to the
Board's Office, 1536 Federal Building, 1000 Liberty
Avenue, Pittsburgh, Pennsylvania 15222, Telephone
412-644-2977.
DECISION
STATEMENT OF THE CASE
HARRY H. KUSKIN, Administrative Law Judge: This case
was heard at Pittsburgh, Pennsylvania, on August 2 and 3,
202 NLRB No. 31
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1972. A complaint, as amended at the hearing, issued
herein on May 24, 1972, based on a charge and an
amended charge filed on March 17 and April 11, 1972,
respectively, by Joseph J Grace, an individual, against
Jones Motor Corporation, a Division of Allegheny Corpo-
ration, herein called Respondent.' Respondent's Irwin,
Pennsylvania, terminal is alone involved herein. The
complaint, as amended, alleges that Respondent violated
Section 8(a)(1) of the Act since about November 1971 by
threatening to discharge its employees, to do them physical
violence, and to shut down its Irwin operations with their
resultant discharge, all because they engaged in protected
concerted activities, and by further threatening them with a
shutdown of these operations if International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local Union No. 30, herein called the Union or
Local 30, persisted in filing grievances under its collective-
bargaining agreement with Respondent; in addition, the
complaint, as amended, alleges that Respondent violated
Section 8(a)(3) and (1) of the Act by discharging, and
thereafter failing and refusing to reinstate, Glenn H.
Wilson, an employee, because of his union and concerted
activities. In its answer, Respondent denies that it has
violated the Act as alleged herein.
Upon the entire record, including my observation of the
witnesses, including their demeanor while on the witness
stand, and after due consideration of the briefs of the
General Counsel and of Respondent, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint, as amended, alleges, and Respondent
admits, that Respondent is a Maryland corporation with its
principal office in Spring City, Pennsylvania; that it is a
common carrier engaged in the business of transporting
goods in various States of the United States under
certificates issued by the Interstate Commerce Commis-
sion; and that during the year preceding the issuance of the
complaint herein, it received in excess of $50,000 for
services rendered in connection with transporting materials
across state lines to and from the Commonwealth of
Pennsylvania. I find, upon all the foregoing, that Respon-
dent is an employer as defined in Section 2(2) of the Act,
and is engaged in commerce and in operations affecting
commerce as defined in Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint, as amended, alleges, and Respondent
further admits, and I find, that International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local Union No. 30, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Some Background Facts
Respondent conducts its business at approximately 85
terminals Of these terminals, 39 comprise its special
commodities division, and the others comprise its general
commodities division. The Irwin, Pennsylvania, terminal is
part of the former division, the boundary lines of which
encompass 20 States and the District of Columbia. This
terminal employs about 40 drivers out of a total of the 540
drivers in the division. Apparently, these drivers are
comprised of owner-operators, who own the tractors and
trailers which they operate; of brokers who own a number
of tractors and trailers and also drive for Respondent; and
of drivers who do not own equipment but drive a broker's
equipment. The above equipment is placed under lease to
Respondent after passing a safety inspection conducted by
Respondent's personnel. Once the equipment is under
lease, Respondent supplies the owner-operator or broker
with license plates and appropriate decals. Should a piece
of equipment sit too long, namely, more than 30 days,
Respondent will normally contact the owner of the
equipment and advise him to put the equipment into
service; and should he fail to do so, Respondent will take
the equipment out of service and cancel the lease on the
equipment.2 There are times when a broker or owner-
operator has mechanical trouble with his equipment and
will either arrange to have it repaired or will seek to replace
it, or will just want to update his equipment. In such
instances, the owner-operator advises Respondent that he
is taking the truck out of service, and, in consequence, he
remains out of work until either of the above contingencies
occurs. According to Lawrence Swenglish, an owner-
operator in Respondent's employ, he took his tractor out of
service because of mechanical problems in the middle of
March 1972 and then replaced it with another tractor and
returned to work on May 22, 1972, after a lease was cut on
the new equipment by Respondent. And according to
Wilson, he was out of work for about 6 weeks in 1970,
during which time he sold an old tractor which was then
under lease to Respondent and replaced it with a new one
under lease to Respondent.
The Irwin terminal is housed in a two-room complex,3
with no docking, parking, or garage facilities, and is
adjacent to a restaurant, called the Big T Restaurant,
where the drivers spend some of their time when off duty.
Arrangements for the pickup and delivery of cargo by
drivers is usually made by telephone. Thus, the dispatcher
at the terminal calls a driver on the telephone and tells him
that a load has to be hauled from one place to another. The
driver either accepts or rejects the load; if he accepts, the
dispatcher gives him the job numbers and the stations for
pickup and delivery. At all times material herein, Walter
Guidas, an admitted supervisor, was the terminal manager
at Irwin. Included in the plant hierarchy and figuring in
these proceedings are the following admitted supervisors,
Robert List, the vice president for the special commodities
division; Charles Long, the vice president of labor
I The name of Respondent appears in the caption and throughout this cancellation of that arrangement as signing off a lease
d
Decision as amended at the hearing
2 The record refers to the leasing arrangement as cutting a lease, and the
as the driver's room3 One of these rooms is referred to in the recor
JONES MOTOR COMPANY 125
relations; Paul Englehart, the area director for the western
region; Donald Chinchella, the regional manager; and
Robert Poteste, the district manager. With specific refer-
ence to List, the record shows that he deals mostly with
administrative matters, being responsible for general sales
and operations, as well as safety and compliance, of the 39
terminals. Under his aegis, at all relevant times, were, inter
alios, two area directors, including Englehart; several
district managers, including Poteste and Chinchella; a
national accounts sales manager; 39 terminal managers,
including Guidas; more than that number of clerks and an
administrative director in the general offices at Spring City
where he has his own office; and also some rate
supervisors. With respect to List's overseeing the driver
functions of the division, the record shows further that the
central dispatch office is housed at the facilities at Spring
City and is tied in to all 39 terminals by an "open voice box
communication"; that three individuals in that office take
dispatches throughout the day from the various terminals
and record them on the driver trip cards, and that List
spends some time in the central dispatch office and, from
these cards, generally gathers information pertaining to
this phase of Respondent's operations. These cards would
show if and when a driver rejected a load, which, List
admitted, occurred daily when viewed on a systemwide
basis. As will appear hereinafter, information as to
Wilson's rejection of a load, which was part of the critical
developments leading to his separation, did not come to
List in the above manner; instead, it was called in to him
directly from the Irwin terminal.
The record shows that the practice of turning down loads
was current in March 1969 when List became vice
president of the special commodities division. It shows
further that this practice continued thereafter, although
List had raised this matter on several occasions with
representatives of the Umon, telling them "a lot of times
that they wanted [the drivers represented by the Union] to
accept these loads." At such times, it was made apparent to
List that, as Respondent did not have a "forced board,"-
whereby the first man up would be required to accept the
load designated for him, Respondent's drivers felt free to
refuse a load. According to Chinchella, who was the
regional manager from March 1971 to the first of February
1972, "the drivers [at the Irwin terminal] were very
particular in what . . . type of freight they would handle,
what direction it's going in, and so forth. Insofar as a
direction, not taking northern Jersey and only taking
southern Jersey freight ...: . And there is testimony by
Joseph Grace, a driver in Respondent's employ,4 that he
has refused a load because "[he] didn't want it," and this
might have been because "it was an overload" or "possibly
it wasn't going where [he] usually run[s] or there may have
been circumstances r c u m s t a n c e s .
4 Grace succeeded Wilson as the union steward after the latter's
separation
5 Local 429 did not take the grievance to the next level
6 The term written grievances as used herein does not include employee
complaints or problems which were not reduced to the written or formal
stage
Once a grievance is reduced to writing, it is presented by the steward to
the terminal manager, or the regional manager, as the case may be If not
settled, the grievance goes to the Western Pennsylvania Teamsters and
Respondent's drivers have been represented for collec-
tive-bargaining purposes ever since Respondent initiated
its special commodities division a number of years ago.
From the inception of this division and until about January
1971, Respondent had a collective-bargaining agreement
covering its drivers with a sister local of the Union herein;
namely, Local 429. The offices of this local were in
Reading, Pennsylvania, which is a considerable distance
from the Irwin terminal. In January or February 1971, the
employees transferred their membership to Local 30, with
offices in nearby Jeanette, Pennsylvania, and Respondent
entered into a contract with Local 30, which contract is still
in effect. The changeover from Local 429 to Local 30
followed in the wake of (1) the denial in January 1971 by
Respondent at the first level of a grievance theretofore
filed by Local 429 on behalf of Alfred Babyak, Jr., a driver,
alleging that Respondent had violated its contract with
Local 429 by deducting from his earnings a sum of money
to cover the cost of an accident in which he was involved; 5
(2) a strike in protest thereof; and (3) a court injunction
staying the strike action. According to Wilson, who was
elected as the union steward at the Irwin terminal on
February 28, 1971, and was still the steward at the time of
his separation, "the minute the Irwin terminal figured we
weren't getting the proper representation that we should be
getting out of Local 429 we transferred to Local 30 in
Jeannette, Pennsylvania, where we could get more positive
action on our grievances and the problems." It is
noteworthy, in this connection, that Babyak's grievance
was subsequently refiled and was processed by Local 30,
and Local 30 prevailed. The record also discloses that, in
contrast to the 12 written grievances filed by Local 429
between the period of January 1, 1968, and December 31,
1970, Local 30 filed 30 written grievances6 from January to
December 1971, of which I 1 went to formal hearing. So far
as appears, the aforesaid 30 grievances involved "pay
claims and run arounds," a "run around" being a claim
that Respondent allowed a driver to haul a load other than
on a first-in-first-out basis. Wilson, who presented these
written grievances at the initial stage was unable to
indicate how many of them belonged in each category.
And as to the payroll claims, it is clear from the record that
Respondent was having problems in 1969, 1970, and 1971
with its payroll department on a divisionwide basis due to
an expanding volume of business and the difficulties
inherent in training new personnel to handle an increasing
volume of paper work; that Respondent received com-
plaints "quite often" from union representatives and from
the drivers themselves about payroll errors; that, in June
1971, Vice President List ran a seminar for drivers at the
Irwin terminal and explained the problems he was having
straightening out the payroll department; and that,
because the drivers still felt that it was taking Respondent
Employers Joint Area Committee, Steel Sub-Committee, a body set up by
the local unions and Joint Council 40 of the Teamsters and by the Western
Pennsylvania Truckers Association This body will be referred to hereinaf-
ter as the Joint Council Failing agreement at this stage, the grievance then
goes to the "Eastern Conference of Teamsters" to be resolved The Joint
Council meets once a month in Pittsburgh, Pennsylvania; the Eastern
Conference of Teamsters meets once every 3 months at different places
along the eastern seaboard of the United States
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
too long to take care of payroll mistakes, etc., written
grievances were being filed. It is apparent from all the
foregoing, and I find, that, during the year 1971, Local 30
demonstrated that it was more aggressive than its predeces-
sor, Local 429, in its representation of Respondent's drivers
at the Irwin terminal, and that Wilson, by reason of his role
as union steward in handling employee grievances,
complaints, and problems, was the personification to
Respondent of such aggressiveness.
As already noted, the instant charge was filed on March
17, 1972, and the unfair labor practices alleged herein date
from about November 1971, which is well within the 6-
month period before the filing of that charge. However, the
General Counsel adduced testimony at this hearing of
purported threats by Respondent's supervisors which
antedated that 6-month period. While what occurred
outside the 6-month period was not made, and could not
be made, consistently with Section 10(b) of the Act, the
basis of unfair labor practice charges, these purported
threats, if established, are nevertheless available to the
General Counsel as background to the events occurring
during the statutory limitation period.? According to
Wilson, in May 1971, he attended a second-step grievance
meeting at Pittsburgh in his capacity as steward and, while
there, he happened to run into List who told him, in the
presence of Long and Chrzan, the business agent of the
Union, "if you guys continue to cause problems at the
Irwin terminal, we'll close it down and get rid of you
people " Additionally, employee Grace testified to another
incident, as follows: He attended a meeting on April 23,
1971, at the union hall at which Wilson's separation by
Respondent because he refused to haul a load out of
Cleveland was discussed.8 He was there as acting steward
because of Wilson's separation. During an intermission,
Long called him aside and said that List did not want
Wilson back to work and that, as a matter of fact,
Respondent was contemplating closing the Irwin terminal.
I note, however, that List denied the above attribution to
him by Wilson, that Long denied that he attended the
meeting in question, and that Chrzan, who testified as a
witness for the General Counsel, was not asked about this
episode. Accordingly, I find that the evidence fails to
preponderate in favor of a finding that List made the threat
attributed to him by Wilson. And while Long's testimony
that he had no recollection of having made a remark to
Grace about closing the Irwin terminal falls short of a
denial, I note that Grace's attribution to Long also falls
short of constituting a coercive threat within the Act's
meaning, as it neither appears that Long indicated that
such closing would be for antiunion reasons, nor does an
inference to that effect seem warranted here. Accordingly,
I find, that the record fails to establish that the unfair labor
practices alleged herein occurred against a background of
threats by Respondent to close the plant for union-
connected reasons.
B. The Alleged Violations of Section 8(a)(1)
Wilson testified that during October 1971, at the Irwin
terminal, he discussed some employee grievances with
Donald Chinchella, the regional manager, in the presence
of committeemen Trapana and Joe Grayson, and that in
the course thereof Chinchella said, "if we continue to cause
problems at the Irwin terminal, they would close the
terminal down." Neither Grayson nor Trapana testified in
this proceeding, and Chinchella denied making any such
threat. I am therefore unable to find, in the face of this
denial and in the absence of any corroboration of Wilson's
version of this episode, that the record preponderates in
favor of a finding that Chinchella made the above
attributed remarks.
Wilson testified also that he had another conversation
with Chinchella during December 1941, shortly after
Respondent had hired Robert Poteste as its district
manager. At the time, the information was current that
Poteste, who was leaving his job as terminal manager at
Associated Transport, another common carrier, had a
following of drivers and that he was going to bring some of
those drivers with him from Associated Transport to, work
at the Irwin terminal. According to Wilson, when he told
Chinchella during this conversation that "we would object
to these drivers coming on because we didn't have enough
work for our own people," Chinchella replied that "if we
continued to cause problems at the Irwin terminal, it would
be closed down." In contrast to the above, Chinchella
testified that his remarks consisted only of saying that it
was Respondent's prerogative to put on additional equip-
ment and that Respondent was going ahead with it. In
addition, he denied making any threats to close the
terminal during this conversation. Here, too, I find that the
record does not preponderate in favor of a finding that
Chinchella made the remarks attributed to him by Wilson.
Indeed, the logic and probabilities of the situation argue
against Chinchella threatening Wilson with terminal
closure at the same time that he was advising Wilson of
Respondent's determination to assert its managerial
prerogative and hire additional equipment.
Wilson testified further that, after the last-mentioned
conversation, a meeting, at which the projected hiring of
additional drivers was discussed, was held around Christ-
mas time at the Ben Gross' restaurant in Irwin, Pennsylva-
nia, between Chinchella, Englehart, and one Bernie House,
representing management, and Chrzan, Ostroff, and
himself representing the Union. According to Wilson, the
following took place: The first statement made at that
meeting was by Chinchella who said that "Jones Motor
Company was sick and tired of trouble that [he, Wilson]
was causing at the Irwin terminal." Whereupon, he replied
that he was not causing trouble but was acting as "the
voice of the 40 people down there." At this, Chinchella
said, "Well, if you continue to cause these problems, we
will close the terminal down." It was his further testimony
that Englehart made some statement but he could not
recall its content. Testimony was also given as to this
episode by Chrzan, Chinchella, and Englehart. According
to Chrzan's version, the troublemaker remark by Chinchel-
la did not occur at the outset but followed "a little dispute"
7 See Local Lodge No 1424, International Association of Machinists, light on the true character of matters occurring within the limitation
AFL-CIO [Bryan Manufacturing Co J v N L R B, 362 U S 411, in which period " See also Azelson Manufacturing Company, 88 NLRB 761, 766
the Supreme Court pointed out that "earlier events may be utilized to shed 8 As a result of this meeting , Wilson went back to work
JONES MOTOR COMPANY 127
between Chinchella and Wilson. In addition, whereas
Wilson did not recall what Englehart said, Chrzan testified
that Englehart called Wilson a troublemaker, too, and that
Englehart then threatened to close down the terminal if the
troublemaking did not.cease. Chrzan made no mention of
such a threat by Chinchella. According to Chinchella, he
did not threaten to close the Irwin terminal dunng this
episode,9 and he did not hear Englehart make any such
threat. He failed, however, to deny making the troublemak-
er remark attributed to him by Wilson and Chrzan.
Similarly, Englehart failed to deny the troublemaker
remark attributed to him by Chrzan, but denied making
any threat to close the terminal. Here again, because
Wilson and Chrzan were at odds in their testimony as to
who did the threatening, with Wilson naming Chinchella,
and Chrzan naming Englehart, and because both Chin-
chella and Englehart denied having made any such threat
during this episode, I find that the record does not
preponderate in favor of a finding that either Chinchella or
Englehart made a threat to close the terminal at the
meeting at the Ben Gross' restaurant. However, I do find,
on the basis of Wilson's testimony, as corroborated by
Chrzan, that Chinchella called Wilson a troublemaker
because of his concerted activity in opposing the hiring of
additional drivers by Respondent.
The record shows that Wilson had a telephone conversa-
tion with List on December 30, 1971, Wilson being in the
office of the Irwin terminal and List being in his office in
Spring City. At that time, as will appear in more detail in
connection with the discussion of the 8(a)(3) allegations of
the complaint, as amended, the following sequence of
events had occurred: Wilson accepted a load from Guidas,
the terminal manager, on December 29. Later that day
Wilson told Guidas that he was refusing the load and was
going on vacation and Guidas advised him that this would
be alright. The following day, on List' s instructions,
Guidas informed Wilson that his vacation was not valid
and inquired whether Wilson was available for work,
which was on hand, but Wilson refused to make himself
available, assertedly because he was then on an approved
vacation. Whereupon, Guidas relayed this information by
telephone to List at his Spring City office and List told
Guidas to call Wilson to the telephone so that he could talk
to Wilson. Guidas thereupon summoned Wilson to the
telephone. It was Wilson's testimony that, during that
telephone conversation, List said to him, "You, son of a
bitch, you. What are you doing over there? I'm going to get
on the airplane, come over to Irwin, kick the shit out of you
and close down the terminal and get rid of everybody."
Whereupon, he answered that he did not have to listen to
that, and hung up the telephone. Robert Poteste,l° who
was present in the Irwin office at the time, testified that he
heard Wilson say on the telephone, "that would be fine
with him [Wilson] and maybe he would drive to the airport
and pick him [List] up"; that he then saw Wilson hang up
the telephone; and that Wilson thereupon said to him that
List had said that he (List) was going to fly to Pittsburgh u
and punch Wilson in the nose. During cross-examination
by Respondent' s counsel , Poteste added that Wilson told
him, after the telephone call, that List had said he was
"going to beat the shit out of him (Wilson)." Loretta
Poteste, who is the wife of Robert Poteste and was then a
clerk in the Irwin office, was also present in the Irwin
office at the time. She corroborated her husband in the
last-mentioned respect, and added that she heard Wilson
say on the telephone, "You'll what. You just do that." In
regard to the above, List testified that he discussed two
matters with Wilson over the telephone: (1) he told Wilson
that it was his decision that Respondent would hire the
brokers and that "[he] wouldn't allow Wilson to continue
to object, without [his] getting involved to the extent, if
[he] had to, to come to Irwin, Pennsylvania, and help
supervise the operation insofar as the hiring of brokers";
and (2) he told Wilson that he (Wilson) had accepted a
load the day before and that he was not going to be
granted a vacation and that he was, in fact, being requested
to perform his work assignments. List testified that he
"could not relay" any of the conversation by Wilson,
except Wilson's answer, just before hanging up the
telephone on him, that he (Wilson) was on vacation and
intended staying on vacation. List denied that he had
threatened Wilson either with physical violence or with
closing down the terminal at Irwin. In addition to the
Potestes, Wilson placed Guidas and Chinchella in the
office at the time of this telephone conversation. However,
Guidas, who was a witness for Respondent herein, did not
testify as to this episode, whereas Chinchella did. Accord-
ing to Chinchella, he remained in the restaurant while
Wilson left for the office to take this telephone call,12 but
heard from Wilson when Wilson returned to the restaurant
that, "Bob List-or one threatened the other or whatever it
was." Chinchella testified further, "exactly all the remarks,
I really don't remember."
It is apparent from the testimony of List that he was
preoccupied at the time of this telephone conversation, not
only with the fact that Wilson had refused to haul a load
but also with the fact that he (List) had been hearing from
Guidas that Wilson "objected very strongly" to the hiring
of additional drivers away from Associated. In this latter
respect, List testified that he had instructed Guidas to have
Wilson call him if he (Wilson) "was going to continue to
object to the decision that [he (List)] had made with regard
to the hiring of other brokers." In view of this and my
findings herein that Wilson was to Respondent the
personification of the aggressiveness of the Union and was
called a troublemaker by it, I am persuaded that this
conversation was not, as List seemed to imply, a statement
by List of a company position to Wilson, free of anger and
without incident other than the abrupt hanging up of the
telephone by Wilson; but, as Wilson indicated, one of
vituperation by List against Wilson. I find also that the
9 Chinchella, like Englehart, testified that this episode occurred on
January 3, 1972, rather than around Christmastime as Wilson testified
However , in view of my findings hereinafter, I find it unnecessary to resolve
this testimonial conflict
10 Robert Poteste was called as a witness by both the General Counsel
and Respondent. At this point, he was testifying as a witness for the General
Counsel
ii It would appear that the air terminal nearest to Irwin is located in
Pittsburgh
i2 I find it unnecessary to resolve this conflict in the testimony of Wilson
and Chichella, as even granting that Wilson was mistaken in this regard, it
would not affect my ultimate finding herein
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vituperative tenor of this conversation is underscored by
the credible testimony of both Potestes as to what they
overheard Wilson say just before hanging up the telephone
and immediately thereafter, and by the intimation in
Chinchella's reluctant testimony that Wilson told him,
when he (Wilson) returned to the restaurant after the
telephone call, that List had threatened him. In all these
circumstances, I find that List was less than forthright in
his above testimony and that Wilson gave a more accurate
account of what transpired. I therefore conclude, and find
further, that, during this telephone conversation, List
threatened Wilson with violence to his person and with
closing down the terminal, plus the resultant discharge of
all employees, because he and its drivers had engaged in
the concerted activities of opposing the hiring of additional
brokers or owner-operators.
The foregoing discussion pertains to paragraphs 6(b), (c),
and (d) of the complaint, as amended. There remain the
allegations in paragraphs 6(a) and (e). Paragraph 6(a)
alleges that, "in or about November 1971, Walter Guidas,
at the Irwin terminal, threatened to discharge employees
for engaging in protected and concerted activities."
However, it would appear that the General Counsel
abandoned that allegation as he adduced no testimony in
support thereof. Paragraph 6(e) alleges that, "on or about
March 6, 1972, Robert Poteste, at the Irwin terminal,
threatened to close down Respondent's Irwin terminal if
the Union persisted in filing grievances under its collective-
bargaining agreement." Although, here too, the General
Counsel adduced no evidence in support of this allegation
during his case-in-chief, Poteste did testify in regard
thereto during direct examination while a witness called by
Respondent.13 It was his testimony that he told Grace,
whom he described as the acting steward although Grace
was then the steward at the Irwin terminal, that "[he] felt
... that if the men didn't want to maybe work a little bit
more and quit causing as much trouble as they were, that
[he] felt the Company probably would close the terminal
sooner or later." It was Poteste's further testimony that he
made clear to Grace that he was voicing his own feelings in
the matter. In all these circumstances, I conclude, and find,
that this testimony falls short of establishing a threat by
Respondent to close down the Irwin terminal if the Union
persisted in filing grievances under its collective-bargaining
agreement.
In sum, therefore, I conclude, and find, that the record
fails to sustain the allegations of paragraphs 6(a), (b), and
(e) of the complaint, as amended, but does sustain the
allegations of paragraphs 6(c) and (d), pertaining to the
telephone conversation between List and Wilson on
December 30, 1971. Accordingly, it follows therefrom that,
by threatening Wilson both with violence to his person and
with closing down the Irwin terminal plus the resultant
13 As already noted, Robert Poteste also testified as a witness for the
General Counsel
14 The record shows in this regard that in April 1971 Wilson hauled a
load for Respondent to Cleveland, Ohio, that he telephoned Respondent's
terminal there for another load to haul, and that, upon being told that the
only freight available was a haul to Virginia, he rejected the load At this,
the dispatcher told Wilson he had to haul the load to Virginia, as the Spring
City office had issued orders to that effect, or he would be considered a
voluntary quit Wilson again refused to haul the load and went on to
Respondent's terminal at Girard, Ohio There he asked the terminal
discharge of all employees because he and its drivers had
engaged in the concerted activities of opposing the hiring
of additional brokers or owner-operators, Respondent
violated Section 8(a)(1) of the Act.
C. The Alleged Violation of Section 8(a)(3)
of the Act
1. The employment history of Glenn H. Wilson
Wilson's tenure of employment with Respondent
spanned the period from 1967 to a time in January 1972,
when he was allegedly terminated by Respondent. During
that period, he left Respondent's employ for an interval,
not specifically delineated herein, in order to engage in his
own business of hauling marble. Thereafter, in April 1971,
there was a second interruption of his employment,
apparently for a short period, because Respondent deemed
him a voluntary quit when he refused to haul a load.14 As
already indicated heretofore, Respondent relented, upon
the intercession of the Union in Wilson's behalf, and
allowed Wilson to return to work.15 Wilson was a member
of Local 429 before he transferred his membership, along
with the other drivers at the Irwin terminal, to Local 30 in
January 1971. Shortly thereafter, in February 1971, Wilson
was elected as union steward for the drivers at the Irwin
terminal . So far as appears, Wilson processed all of the 30
written grievances which were submitted to him by the
Irwin drivers during 1971. Wilson's role in this regard was
to present the grievances to the terminal manager or to the
regional manager, as the case might be, and to try to settle
the grievance without going to a formal hearing. If he
failed at this level, the grievance was then heard by the
point council in Pittsburgh which met once a month. And
failing agreement at that level, the grievance was presented
before the Eastern Conference of Teamsters, which met
once every 3 months at different locations. Wilson was
required to be present and participate at all levels of the
grievance procedure. It is noteworthy that the first
grievance processed by Wilson involved the above-men-
tioned Babyak case. As heretofore found, Babyak had filed
a grievance concerning the matter with Local 429; and
when it was denied at the first level, Local 429 did not
proceed to the next step in the grievance procedure. Upon
Local 30 becoming the bargaining agent of the drivers,
Babyak refiled the grievance with Local 30, and it was
Wilson who took the grievance to the third step in the
grievance procedure , i.e., to the Eastern Conference of
Teamsters, where it was resolved in favor of Babyak.
The record shows that Wilson , in his capacity as union
steward, took an aggressive stand in December 1971 in
opposition to the projected hiring by Respondent of
additional owner-operators or brokers. This opposition
manager if he had any freight and was told by the terminal manager that he
(the terminal manager ) had a load going to Mechanicsburg, Pennsylvania,
but he could not let Wilson have it because of orders from Spring City that
Wilson had to go back to Cleveland and haul that load to Virginia. Wilson,
thereupon, called the Union in Pittsburgh and was told to return home The
morning after Wilson returned home, he received a telegram from
Respondent informing him that he had voluntarily quit hisjob
15 As already found during a recess in the proceedings on April 23, 1941
Long told Acting Steward Grace that Vice President List did not want
Wilson back
JONES MOTOR COMPANY
materialized when, as already found, Respondent hired
Robert Poteste, the then terminal manager at Associated,
on December 22 or 23, 1971,16 as its district manager, and
Poteste was to bring with him from Associated to work for
Respondent some of his following of drivers. Upon hearing
of the projected hiring, the drivers at the Irwin terminal
became concerned because, in their view, there was not
enough work for the existing complement of dnvers; they
were then averaging one "round" a week instead of the
customary two "rounds" a week, largely because they were
hauling mostly steel and the steel industry was then
experiencing a slump. The drivers expressed their objec-
tions to management through Wilson. As found above, List
testified that he learned from Guidas that Wilson "object-
ed very strongly" to the hiring of more drivers or brokers.
In this connection, Wilson testified that he was approached
by Guidas concerning these additional hirings and was
asked, "Are you people still going to object [to such
hirings]?", and that he responded in the affirmative. Also
as found above, Wilson conveyed to Chinchella, the
regional manager,17 during December 1971, that the
drivers of Respondent at the Irwin terminal would object
to the hire of additional drivers because there was not
"enough work for our own people." The record shows
further, in this regard, that the aforesaid aggressive role by
Wilson caused Respondent openly to voice its displeasure
therewith, witness the fact, as I have also already found,
that Chinchella told Wilson, during the meeting of
management and the Union convened in order to discuss
the problem generated by the projected hiring, that he was
a troublemaker. In addition, there is testimony by Loretta
Poteste, which I credit, that Guidas told her during the
week after Christmas 1971 that, "Jones Motor felt that
Glenn was a troublemaker and that Bob List himself had
been trying to get rid of Glenn Wilson for quite some time
but had not been able to get anything on him," and further
that, "the Company felt that Glenn Wilson was the
instigator of the problems that arose whenever we brought
a truck from Associated and assigned them over to Jones
Motor."
The record also shows, as heretofore indicated, that in
the midst of this projected hiring, another critical develop-
ment occurred. The details of this development are as
follows: On the morning of Wednesday, December 29,
1971, in consequence of a telephone call from Guidas,
Wilson accepted a load to Cleveland, Ohio, which was to
be picked up by him at 1:30 that afternoon. Before pickup
time, while Wilson was still at home, Wilson heard, via
16 Poteste had previously worked for Respondent from 1963 to March 3,
1969
17 Chinchella served in this capacity during his tenure of employment
which spanned the period from April 1971 to "the first of February" 1972
He was required in the course of his duties to become involved in dealings
with the union steward and representatives of Local 30
11 The sale was effectuated later that afternoon
19 As Guidas gave ambivalent testimony in this regard, saying, under
direct examination by Respondent's counsel, that he did not give his
approval, and saying, under cross-examination by counsel for the General
Counsel, that he did, I credit Wilson's testimony in this regard, which was
corroborated by the testimony of Robert Poteste, the district manager, and
that of Loretta Poteste, his wife
There is also uncontradicted testimony by Robert Poteste that the normal
procedure in the business as to driver's vacations is that the driver indicates
to management that he is taking "X amount of days of absence" and it is
129
telephone from one Jay Poole, who had talked to Wilson
prior thereto about buying his tractor, that he (Poole)
wanted to purchase Wilson's tractor that same day.18
According to Wilson, he decided to sell the tractor and not
haul the load to Cleveland because one did not find a
buyer with money every day Whereupon, he telephoned
Guidas before noon that day, and requested first to be
relieved of his load and then to be allowed a 2-week
vacation. Guidas gave his approval to both requests.19
Wilson testified that he told Guidas that he had sold his
tractor at the time he asked to be relieved of his load on
December 29, and that on the morning of December 30 he
asked Guidas to note both the sale and the fact that he was
going on vacation on the daily log. I am satisfied, however,
on the basis of the testimony of Guidas, as corroborated by
Robert Poteste during his testimony as a witness for the
General Counsel, that Wilson did not advise Guidas of the
sale at either time. Rather do I find, on the basis of Guidas'
and Poteste's testimony, that it was rumored around the
terminal that there was such a sale to Poole and that,
during the afternoon of December 30, Guidas was able to
reach Poole on the telephone and to ascertain from him
that he had purchased the tractor from Wilson.20
It is apparent from the record that List learned about the
above December 29 developments involving Wilson the
very same day via a telephone call to Spring City by Don
Diggan, a district manager. In addition, List also spoke to
Chinchella, the regional manager, concerning this matter.
The next morning, i.e., on December 30, he also learned
from Guidas that "there was a good chance that Mr.
Wilson had sold his tractor." In consequence of the above,
Guidas was instructed by List "to get hold of Wilson and
tell him that his vacation was not valid and that there was
work available for him,21 was he available for work."
During the afternoon of December 30, Guidas spoke to
Wilson, who was then at the Big T Restaurant, and told
him what List had said. Wilson, in turn, answered, in
effect, that he would not accept any work as he had been
granted a 2-week vacation.22 When Wilson's answer was
relayed to List at Spring City soon thereafter, List told
Guidas that he wanted to talk to Wilson. This was
communicated to Wilson by Guidas and there resulted that
afternoon the heretofore described telephone conversation
between List and Wilson in which, as I have found, List
threatened Wilson with violence to his person and with
closing down the terminal, with the resultant discharge of
all drivers, because he and its drivers had engaged in the
"normally" granted He also testified that he does not know of a single
instance during his employment by Respondent where a vacation request
was denied
In regard to drivers' first accepting a load and then asking to be relieved
of the load, Poteste testified that this happens "quite often," adding that, "I
don't think there's a day that goes by that this hasn't happened "
20 Guidas had heard before December 29 of Poole's interest in Wilson's
tractor
21 So far as appears, Respondent was not then in need of Wilson's
equipment to handle available loads
22 1 have set forth above Guidas' version of this conversation While
Wilson testified that he gave, as part of this reason , that he had sold his
tractor, I find it unnecessary to resolve this credibility issue because it is
apparent from the record that at or about this time Respondent learned
from Poole of the sale of the tractor to him
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerted activities of opposing the hiring of additional
brokers or owner-operators.
The next development of consequence in Wilson's
employment history occurred on January 3, 1972. On that
date, Wilson was at the Irwin terminal and signed off the
lease on his tractor at the instance of Chinchella. At the
time, Chinchella told Wilson that he (Chinchella) needed
the decals and plates which were on the tractor. Although
Wilson promised to bring them to the terminal on January
4, the record shows that, during the afternoon of that day,
Respondent dispatched a telegram to Wilson, under
Chinchella's signature, saying that Respondent had not
received the plates, permits, and door placards for the
tractor and that "unless these items are received immedi-
ately further action will be necessary." Respondent did
thereafter receive these items from Wilson on January 5.
It was List's testimony that once Wilson had signed off
the lease on his tractor, "he terminated the employment at
Jones Motor, he had no equipment to work with."
However, it is clear from the record, as will appear more in
detail hereinafter, that Wilson still had under lease to
Respondent the trailer which he had operated in conjunc-
tion with the aforesaid tractor; and it is further apparent
that Wilson was not then of a mind to terminate his
employment. Thus, according to Wilson's uncontroverted
testimony, which I credit, when he signed off his lease on
the tractor, he refused Chinchella's request to sign off the
lease on his trailer on the ground that he intended to
replace the tractor and return to work. Additionally,
according to the mutually corroborative testimony of
Wilson and Lloyd Lingle, one of Respondent's owner-
operators, which testimony I also credit, at about that time,
Wilson had contacted Lingle and had arranged with him to
drive one of his two tractors then under lease to
Respondent. The tractor in question had been put under
lease to Respondent by Lingle less than a month before,
the occasion therefor being that Lingle's other tractor,
which was then the only one under lease to Respondent,
was going in for repairs. Lingle's understanding with
Wilson was that the tractor he (Lingle) was then driving
was to be made available to Wilson as soon as the repairs
on the other tractor were completed, which was estimated
to be about two weeks, and that Wilson would use this
tractor in combination with his own trailer.
The record shows that Wilson's above efforts to continue
in the employ of Respondent were unavailing. Thus, under
date of January 5, Respondent sent him a registered letter
signed by Chinchella in which it notified him that the
"effective lease" on his trailer was canceled on that date.
Of significance in this regard is Robert Poteste's testimony,
which I credit, that company policy then provided that "if
a man sells a tractor and he is going to purchase another
tractor, the trailer is normally not canceled. If a man sells
his tractor and he says he's going completely out of
business,23 then they would cancel the entire unit and the
individual." Additionally, with respect to Wilson's arrange-
ment with Lingle, it is apparent from List's testimony that,
upon learning from Guidas, via telephone, that Guidas
understood that Wilson was going to drive one of Lingle's
two tractors ,24 he initiated action which resulted in a
telegram being sent to Lingle canceling the lease on that
tractor . The cancellation , which was made effective as of
January 10 , was sent to Lingle 's home on January 6.25
Lingle was not at home that day as he had theretofore
accepted a load from Respondent and was en route
making the delivery with the very tractor which was the
subject of the cancellation notice . Of significance here is
the following : List testified , in explanation of his action,
that he was advised erroneously that the instant tractor of
Lingle had been dormant for more than 30 days, implying
thereby that , but for the error , he would , in canceling the
lease , have acted consistently with company policy
respecting dormant equipment . However , assuming, but
not deciding , that List did get erroneous information, the
fact remains that he acted precipitously in the matter. For,
the normal procedure , as I have heretofore found, is first to
contact the ownet of the equipment and advise him to put
the equipment into service , and only if he fails to do so will
Respondent take the equipment out of service and cancel
the lease on the equipment . Significant , too, is List's
admission that he was not particularly interested in having
Wilson drive Lingle 's tractor. He added , in this connection,
that Wilson had not been a good operator. "He has been
one that, without regard to our customers, would turn
down freight and not concern himself with the fact that we
are a service oriented company and that this is the sole
purpose of our existence and this was far from his concern.
And the prime example of that , of course, we go back to
December 29."
It is evident from the record that, notwithstanding his
unsuccessful attempt to drive Lingle 's tractor and thus get
back to work , Wilson took further steps to get back on
Respondent 's payroll, which also proved unavailing.
Credited testimony establishes the following : About the
middle of January, Wilson approached Chinchella, on one
occasion , and Robert Poteste, on another occasion, to
inquire as to whether he could get back to work if he
purchased another tractor . Both of them made clear to him
that Respondent would be interested in seeing his
equipment . Thereafter , on January 20, Wilson met Poteste
at the restaurant near the terminal and informed him that
he was in the process of purchasing a tractor, and inquired
whether Respondent would put him to work. Poteste told
Wilson to "bring the truck up" and in the meantime he
would get an answer for Wilson . Wilson then indicated he
had to take care of some business and Poteste told him to
return in about an hour for an answer . Poteste soon told
Guidas that Wilson approached him saying that he was
buying a truck and would be ready to go back to work.
Thereupon , Guidas telephoned List in Spring City. Upon
concluding this telephone conversation , Guidas told
Poteste that the answer was "no ." At this, Poteste inquired
as to what reason he was to give to Wilson and was told by
Guidas to tell Wilson that Respondent was not hiring
equipment at this time . Poteste then went to the restaurant
23 This, I find, was clearly not the situation with Wilson 25 Although the telegram bears date of December 6, the parties
24 Wilson testified that he made his transaction with Lingle known to stipulated that this was an error
Guidas and Chinchella
JONES MOTOR COMPANY 131
adjacent to the terminal and told Wilson that he could not
put him (Wilson) to work for the above reason.26
On the issue of whether Respondent was, in fact, not
hiring additional equipment at the time, credible testimony
establishes the following: Later, the same day, Robert
Poteste was in the restaurant near the terminal talking to
one Vincent Christifano, an owner-operator, who was
asking about employment with Respondent. Wilson
overheard the conversation, came over to Poteste and
Christifano, and asked Poteste how he (Poteste) "could be
discussing hiring equipment when he had just previously
told him (Wilson) that Respondent was not hiring
equipment."27 Poteste's answer, according to the uncon-
tradicted and credible testimony of Wilson was, "We just
aren't putting you on." Noteworthy, in this latter respect, is
Poteste's testimony that it was part of his job to seek to hire
equipment and that at no time during his employment
tenure with Respondent were orders given to him personal-
ly by management not to hire equipment. In addition, the
parties stipulated that, after January 20, 1972, Respondent
hired the equipment of one Lloyd D. Oblak, of Christifano,
and of one William Konkus on January 21 and February 7
and 16, respectively. While it is also true, as the parties
further stipulated, that, of these, Oblak and Konkus were
from Associated and were part of the following of Poteste,
the fact remains that, contrary to the representation by
Respondent to Wilson on January 20 that it was not then
hiring equipment, Respondent did continue to do so, albeit,
in two of the three instances above, the owners of the
equipment came from Associated and were part of
Poteste's following. I find, in all these circumstances, that
Respondent misrepresented to Wilson that it was not then
hiring equipment.
Wilson made no further approaches to Respondent
about getting back on its payroll. Although, so far as
appears, Wilson did not complete the transaction to
purchase a tractor, which was in process when he made the
overtures to Poteste on January 20, it is evident from all
the foregoing that to have done so to get back to work
would have been a futile act. That this is so is further
apparent from Business Agent Chrzan's credible testimony
that, on January 27 or 28, he asked Vice President Long
over the telephone if Wilson could go back to work and
was told that, "under no circumstances will [Wilson] be
back to work."
The last development herein occurred on February 1. At
that time, Wilson and Chrzan appeared at the Irwin
terminal for the purpose of tendering a resignation. Present
at the terminal were Guidas, Robert Poteste, and Bergey.
The nature of the resignation is in dispute, with Chrzan
and Wilson saying that Respondent's representatives were
told that Wilson was resigning as union steward and that
Grace was taking his place, with Guidas saying that Wilson
16 The above credited testimony as to what Guidas told Poteste right
after the telephone conversation was given by Poteste Although Guidas
gave a different version, saying only that he reported to Poteste that List
wanted to talk to Wilson before anything further was done, and denying
that he told Poteste that Respondent was not putting any trucks on, his
testimony in this regard did not have the ring of truth and I do not credit
him Similarly, I do not credit the testimony of Hilda Bergey, a clerk in the
Irwin terminal, that shortly thereafter she overheard a conversation between
Poteste and Wilson in which Poteste told Wilson that he had to call List and
resigned only from his job at Respondent , with Poteste
saying that Wilson told him that he had "officially resigned
as of today or something to that effect ," and Bergey saying
that Chrzan made the statement that Wilson was tendering
his official resignation from Respondent and, on the way
out, added , "oh, by the way, [Wilson] also resigns as
steward ." In view of the above divergencies in the
testimony of Guidas , Bergey and Poteste , who testified in
behalf of Respondent in this regard , and the unlikelihood
that ( 1) Wilson would have opted to resign from Respon-
dent at this point , and (2) Chrzan , the business agent of the
Union , would have been on this mission with Wilson if the
purpose thereof was to tender Wilson 's resignation from
Respondent , I find that the mutually corroborative
testimony of Wilson and Chrzan more closely resembles
the truth . Accordingly , I credit Wilson and Chrzan and
find that Respondent was then notified only of Wilson's
resignation as union steward and of his replacement by
Grace.
2. Analysis and conclusions
It is apparent from all the foregoing that Wilson's refusal
to accept a load on December 29, 1971, within a few hours
after he had accepted that load, which refusal was
occasioned by his having agreed in the interim to sell for
delivery that day the tractor which he used, in combination
with his trailer, to haul loads for Respondent, set in motion
a series of events resulting in Wilson's separation. The
General Counsel contends, in his brief, that Wilson's
separation was a discharge and that it occurred on January
6, 1972, when Respondent cancelled out the lease on
Lingle's second tractor, after Wilson had obtained the right
from Lingle to use it in hauling loads. Respondent, on the
other hand, takes the position, in its brief, that Wilson was
not discharged but voluntarily quit his employment at the
time he sold and signed off the lease on his tractor, and
that the General Counsel failed to establish that Respon-
dent did anything which prevented Wilson from leasing
another tractor to it.
The above contentions are to be evaluated in the
following context: (1) Wilson refused Chinchella's contem-
poraneous request to sign off the lease on his trailer, as
well, on the ground that he intended to replace the tractor
and return to work. (2) Notwithstanding Wilson's express
indication that such was his intention, Respondent
disregarded its normal policy of not disturbing the lease on
the trailer of an owner-operator who sells a tractor and is
going to purchase another tractor by precipitously cancel-
ing the lease on his trailer by registered letter to him dated
January 5, 1972. (3) Wilson proceeded on or before the
that Wilson refused I note that this testimony, which was given during
direct examination by counsel for Respondent , followed her earlier
testimony, viz, "Now what they had said, I don't really know You could
overhear them talking but you couldn' t make out what they were saying "
27 According to the credible testimony of Christifano, he told Poteste
that he wanted to go to work for Respondent Poteste then asked if his
equipment was ready and he answered that he needed a trailer Whereupon,
he told Poteste he would be back as soon as he got his trailer and Poteste
replied, "that's fine, as soon as you're ready you come back "
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
latter date to make arrangements to drive one of Lingle's
two tractors,28 in conjunction with his own trailer, and
alerted Respondent to his plan to drive this equipment in
its service. (4) This attempt by Wilson was thwarted when
Respondent precipitously canceled the lease on the tractor
of Lingle which he (Wilson) was to drive. (5) Even
assuming, without deciding, that Vice President List was
erroneously advised that one of Lingle's two tractors had
been dormant for more than 30 days, Respondent, by
canceling the lease on such equipment, violated its normal
practice of giving notice to the owner thereof of its
intention to cancel the equipment unless he activated it. (6)
Wilson thereupon sought to arrange for the purchase of a
tractor and, on January 20, 1972, notified Respondent that
he was acquiring a tractor and would be ready to get back
to work. (7) This attempt by Wilson to get back to work
was also thwarted by Respondent when it misrepresented
to him that it was not hiring any equipment at that time.
The aforesaid conduct of Wilson is clearly inconsistent, I
find, with Respondent's contention that Wilson was a
voluntary quit. Indeed, it argues strongly that Wilson
regarded himself throughout as temporarily out of service
and still in the employ of Respondent. While it is true that
he did not formally tell Respondent that he was temporari-
ly out of service, his insistence that he was then on a 2-
week vacation with Respondent's approval, plus the above
statement by him to Chinchella of his intention to replace
his equipment were tantamount thereto. Noteworthy in
this connection is (1) Respondent's admission that if a
driver wants to update his equipment-a parallel situation,
I find-its policy is to cancel the old lease on the
equipment and permit the driver to take whatever time he
needs to acquire replacement equipment, and it will, when
that happens, execute a new lease; and (2) its further
admission that the driver retains his employee status
during the transition period
On the other hand, Respondent's above conduct of
thwarting Wilson at every turn, namely, by canceling on
January 5, 1972, the lease on his trailer, by canceling the
next day the lease on the tractor belonging to Lingle which
Wilson had arranged to drive and thereby get back to work
for Respondent, and by misrepresenting to Wilson on
January 20, 1972, when he advised Respondent that he was
purchasing a tractor, that there was no available work,
establishes, and I find, that Wilson's separation was
effected by Respondent rather than by Wilson himself.
As heretofore noted, the General Counsel contends that
Respondent effected Wilson's separation or termination on
January 6, 1972. Supporting this contention are: (1) On
December 30, 1971, during the telephone conversation
with Wilson, initiated by List, List threatened, inter aha,
"to close down the terminal and get rid of everybody." (2)
On December 30, after this telephone conversation,
according to the credible testimony of Loretta Poteste,
Guidas told her that "under no circumstances was he to
cut a new lease for Glenn Wilson if he bought another
truck to be put on." (3) Thereafter, before the end of the
day on January 4, 1972, despite Wilson's representation to
Chinchella the day before that he would return on January
28 As already found, Lingle then had the tractor, which Wilson was to
drive, under lease to Respondent because the one he usually drove was
4 the plates and decals which were on the tractor he had
sold, Respondent sent Wilson a telegram demanding the
return of these items "immediately" or "further action will
be taken." (4) On January 5, the day on which Wilson
returned the plates and decals, Respondent canceled the
lease on Wilson's trailer by registered letter to him,
notwithstanding his express indication to Chinchella on
January 3 of his intention to replace the tractor he had sold
and to return to work. (5) And lastly, on January 6, after
learning of Wilson's plan to drive one of employee Lingle's
two tractors in its service and thus return to work,
Respondent precipitously canceled Lingle's lease on the
very tractor which Wilson was to drive; and although it
claimed that it was erroneously advised that the equipment
was dormant for more than 30 days, it had nevertheless
violated, by such cancellation, its normal practice of
notifying the owner of such dormant equipment of its
intention to cancel the equipment unless he activated it.
Noteworthy, too, is the undenied testimony herein of
Thomas B. Donnelly of the Bureau of Employment
Security of the Commonwealth of Pennsylvania that
Respondent advised the bureau in the course of answering
the bureau's "Request for Separation Information" as to
Wilson, who had filed an unemployment compensation
claim with the bureau, that Wilson's last day of work was
January 6, 1972. It follows from all the foregoing, and I
find, that Respondent was determined to rid itself of
Wilson and that it realized its objective on January 6, 1972,
with the cancellation of the lease on one of Lingle's two
tractors, thus precluding Wilson from having another
tractor to drive in its service. Accordingly, I conclude, and
find further, as the General Counsel contends, that
Respondent discharged Wilson on January 6, 1972.
I have also found heretofore that, upon learning on
January 20, 1972, that Wilson was in the process of
arranging to acquire a tractor so as to be ready to return to
work, Respondent misrepresented to him that there was no
available work; and that Long told Chrzan, during a
telephone conversation about a week later, that, "under no
circumstances will [Wilson] be put back to work." It
follows therefrom, and I also find, that Respondent made
manifest thereby its refusal to reinstate Wilson.
I come now to the remaining contention of the General
Counsel that Respondent discharged and failed and
refused to reinstate Wilson because of his activities in
behalf of the Union and because of his concerted activities
with other drivers. In view of my findings heretofore (1)
that List, in violation of the Act, threatened Wilson with
personal violence and with closing down the Irwin
terminal, with the resultant discharge of its employees,
because he and its drivers had engaged in concerted
activities of opposing the hiring of additional brokers or
owner-operators away from Associated; (2) that, during
the Ben Gross' meeting, at which the hiring of these
additional drivers was discussed by representatives of
management and the Union, Chinchella called Wilson,
who was present in his capacity as union steward, a
troublemaker because of his activity in opposing the hiring
of these additional drivers; (3) that Guidas told Loretta
being repaired
JONES MOTOR COMPANY
Poteste that Respondent felt that Wilson was a trouble-
maker and the instigator of the problems that arose
whenever it "brought a truck from Associated and signed
them over to Jones Motor ," and that Vice President List
"had been trying to get rid of Wilson for quite some time
but had not been able to get anything on him"; and (4) that
Wilson , by reason of his role as union steward in handling
grievances , complaints , and problems was the personifica-
tion to Respondent of the Union 's aggressiveness , I infer,
and find , that, in effecting Wilson 's discharge and refusing
and failing thereafter to reinstate him, Respondent was
motivated by a desire to rid itself of a union steward who
was a thorn in its side by reason of his union -connected
and concerted activities in opposing its hiring of additional
drivers away from Associated . And this is so, even
assuming , without deciding , that , at the time of the
discharge , Respondent justifiably harbored resentment
against Wilson for (1) accepting a load from Respondent
and then rejecting the load within several hours thereafter;
(2) failing to tell Respondent of the sale of his tractor on
December 29, 1971 , and thereby putting Respondent to the
trouble of seeking to find out for itself about the sale; and
(3) not agreeing to make himself available for work after he
was told on December 30 that he could not have a vacation
at that time, which vacation , I have found , had been
approved the day before. For, nowhere does it appear that
Respondent took any steps to warn or discipline Wilson
because of any of the foregoing . I am also cognizant , in this
connection , of Vice President Long's testimony that
Wilson was not given any work on January 20 because he
had no equipment under lease , and further because he
"certainly was not what we consider a good broker."
However, I am unable to credit this testimony because, as
heretofore found with respect to Wilson 's not having any
equipment , Respondent thwarted Wilson in his efforts
prior thereto to replace the tractor which he had sold and
to return to work for Respondent ; and, on January 20,
Respondent went so far as to misrepresent to him that it
was not hiring additional equipment . 29 And as to the
quality of Wilson 's work , Long admitted that, in his
prehearing affidavit to a Board agent ,30 he swore that, "I
had no complaints with [Wilson 's] work ; and if he had not
cancelled his lease, he would probably be working with
us." In addition , there is uncontradicted testimony by
Wilson , which I credit , that , in March 1972 , Regional
Manager Chinchella told him , during a conversation
concerning the aforesaid discharge and failure to reinstate,
"You boys are a bunch of good brokers up there .... If I
had another terminal , I would put all of you to work ... .
It wasn ' t me who fired you. It was Spring City 's decision
not to rehire you ." Accordingly , I conclude , and find, that
by discharging Wilson on January 6, 1972, and thereafter
failing and refusing to reinstate him, Respondent violated
Section 8(a)(3) and ( 1) of the Act.
Upon the basis of the entire record, I make the
following:
19 See N L R B v Malone Knitting Company, 380 F 2d 880 , 883 (C A 1),
enfg 152 NLRB 643
CONCLUSIONS OF LAW
133
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2 (5) of the Act.
3. By threatening Glenn H . Wilson with violence to his
person and with closing down its Irwin , Pennsylvania,
terminal , plus the resultant discharge of all employees,
because he and its drivers had engaged in the concerted
activities of opposing the hiring of additional brokers or
owner-operators , Respondent has interfered with, re-
strained , and coerced employees in the rights guaranteed in
Section 7 of the Act , and has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
4. By discharging Glenn H . Wilson on January 6, 1972,
and thereafter failing and refusing to reinstate him,
because of his union-connected and concerted activities in
opposing its hiring of additional drivers away from
Associated , Respondent has discriminated in regard to the
hire or tenure of employment of its employees thereby
discouraging membership in the Union , and has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8(a)(3) and ( 1) of the Act.
5. Respondent has not violated the Act in any other
respect alleged herein.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
(3) of the Act , I shall recommend that Respondent cease
and desist therefrom and that a broad order issue designed
to protect the employees of Respondent , and that it
affirmatively take such action as will dissipate the effects of
its unfair labor practices . In the latter connection , having
found that Respondent violated Section 8(a)(3) and (1) of
the Act by discharging Glenn H . Wilson , and thereafter
failing and refusing to reinstate him, I shall also recom-
mend that Respondent offer him immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of earnings he may have
suffered during the period of this discrimination against
him by payment to him of a sum of money equal to that
which he would have earned as wages from the date of
such discrimination to the date of Respondent 's offer of
reinstatement , less his net earnings during such period,
with backpay and interest thereon to be computed in the
manner prescribed by the Board in F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating Co.,
Inc., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and
conclusions of law , and upon the entire record in the case,
I hereby issue the following recommended: 31
30 The affidavit is in evidence as G C Exh 3
31 In the event no exceptions are filed as provided by Sec . 102 46 of the
(Continued)
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Respondent, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Threatening employees with personal violence and
with closing down the Irwin, Pennsylvania, terminal, with
the resultant discharge of its employees, because they
engaged in protected concerted activity.
(b) Discharging employees because they engaged in
union-connected and concerted activities.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer to Glenn H. Wilson immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of earnings he has suffered in
the manner set forth in the section hereof entitled "The
Remedy."
(b) Preserve and, upon request, make available to 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
Board or its agent, for examination and copying, all payroll
records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary
or useful to determine or compute the amount of backpay
due, as herein provided.
(c) Post at its terminal in Irwin, Pennsylvania, copies of
the attached notice marked "Appendix." 32 Copies of said
notice, on forms provided by the Regional Director for
Region 6, after being signed by a representative of
Respondent, shall be posted by Respondent immediately
upon receipt thereof, and be maintained for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the said Regional Director, in writing, within
20 days from the date of this Order, what steps Respondent
has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint, as
amended, be dismissed insofar as it alleges violations of the
Act not found herein.
32 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 "