Jack Walker Trucking Service, Inc.

National Labor Relations Board - Board Decisions

Mar 20, 1973

202 N.L.R.B. 541 (N.L.R.B. 1973)

JACK WALKER TRUCKING SERVICE
Jack Walker Trucking Service, Inc. and Edmund
Gosser . Case 9-CA-7071
March 20, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On November 29, 1972, Administrative Law Judge
William J. Brown issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
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 brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge 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 Respondent,
Jack Walker Trucking Service, Inc., Lexington,
Kentucky, its officers, agents, successors, and as-
signs, shall take the action set forth in the said
recommended Order, as so modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer employees Edmund Gosser, Ralph
Gilbert Thompson, Wt;`,am White, James Tomey,
Glen Evans, Dexter Wade, and Farris Brandenburg
immediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their
seniority and other rights and privileges and make
them whole for loss of earnings in the manner set
forth in the section above entitled "The Remedy."
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
I 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
541
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 employees in reprisal for their
participation in concerted activities for the
purpose of advancing their mutual aid or protec-
tion, nor will we in any manner interfere with,
restrain, or coerce them in the exercise of their
rights under the National Labor Relations Act, as
amended.
WE WILL offer our employees whom we
discharged on May 7, 1972, immediate and full
reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent jobs
and WE WILL make them whole for loss of
earnings resulting from our act in discharging
them on that date.
All our employees have the right to engage in
concerted activities for the purpose of mutual aid or
protection.
JACK WALKER TRUCKING
SERVICE, INC.
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named indi-
viduals, 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, Federal Office Building, Room 2407,
550 Main Street, Cincinnati, Ohio 45202, Telephone
513-684-3686.
DECISION
WILLIAM J. BROWN, Administrative Law Judge. This
proceeding under Section 10(b) of the National Labor
202 NLRB No. 81
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Act, as amended, came on to be heard at
Lexington, Kentucky, on October 10, 1972.1 The original
charge of unfair labor practices was filed May 25 by the
above-indicated Charging Party and the complaint herein
was issued by the General Counsel of the National Labor
Relations Board acting through the Board's Regional
Director for Region 9, on July 18. It alleged, and the duly
filed answer of the above-captioned Respondent hereinaf -
ter sometimes "the Company," denied, the commission of
unfair labor practices defined within the scope of the
Section 8(a)(1) of the Act.
At the hearing, the parties appeared and participated as
noted above with full opportunity to present evidence and
argument on the issues. Subsequent to the close of the
hearing, written briefs were received from the General
Counsel and the Company and have been fully considered
On the entire record herein and on the basis of my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF) THE EMPLOYER
The pleadings and evidence establish that the Company,
a corporation organized and existing under and by virtue
of the laws of the Commonwealth of Kentucky, is engaged
in business as a common carrier by truck of beer and other
products from Lexington, Kentucky, to various destina-
tions and, in the course of such business received, during
the 12-month period preceding issuance of the complaint
herein, gross revenues in excess of $300,000 of which more
than $50,000 was received for transportation of beer and
malt products directly from points in one State to points in
another State. I find, as the Company concedes, that it is
an employer engaged in commerce within the purview of
Section 2(6) and (7) of the Act.
II. THE UNFAIR LABOR PRACTICES
For a period of several months prior to May 7 the
Company's drivers, seven in number,2 had been discussing
among themselves certain areas in which they were
dissatisfied with working conditions. In particular they
desired to convert their basis of pay from a flat rate
dependent on origin and destination to a mileage basis at
10 cents per mile and, apparently of equal if not greater
significance, a group health insurance plan under which
the employees would pay the required premiums, the
Company merely furnishing the requisite group status.
Their aspirations also included a week's paid vacation.
On Sunday, May 7, seven company drivers3 met at
Gosser's home, named Gosser as their spokesman and
proceeded to the company terminal to press their requests
before Company President Jack Walker. Insofar as
insurance was concerned, the drivers' plea had been
previously presented to Walker who had said that he would
look into the matter. Gosser's testimony is that on hearing
the employee demands Walker protested that they would
I Dates hereinafter , unless otherwise noted , relate to the calendar year
1972
2 The evidence is unclear as to whether or not Walker's son - in-law, Odell
Mitchell , is a regular driver or a casual one If a regular operator, the
involve such a cost increase as would make the Milwaukee
run cost $90, a figure which he could not afford, at least
until he received ICC approval of a rate increase.
According to Gosser's account, Walker cursed and ranted,
called someone, apparently a shipper, told him to get
another truck, and fired all the drivers.
The testimony of driver Glen Evans essentially corrobo-
rates that of Gosser. The testimony of driver Brandenburg
is to the effect that on hearing the drivers' demands as
voiced by Gosser, Walker first merely said that he was
unable to meet them but then walked out, said he would
sell out his business, and eventually told the employees that
they all were fired and should take their belongings from
the terminal premises.
Walker's testimony is that, on hearing the employees'
demands from Gosser, he told Gosser that he could not
afford to meet them unless he received a rate increase from
the Interstate Commerce Commission. He further testified
that employee Toomey said they would strike unless an
agreement was reached and that no one else would drive as
they might not get back. Toomey denied threatening that
replacements might not get back. I credit his denial and I
credit his testimony that none of the drivers during the
course of the Sunday confrontation stated that they were
quitting their employment. The evidence also indicates that
Gosser's signed pretrial statement concedes that he told the
drivers to clear out their trucks.
I credit the accounts of Gosser and Evans and find that,
on the occasion in question, Walker became enraged on
hearing the demands of the employees and discharged
them. It is clear that the employees' participation in
concerted activity looking to improvement of their condi-
tions of employment formed the basis for Walker's action
in discharging the employees, and I find and conclude that
the words and conduct of Walker on this occasion
constituted an unfair labor practice within the purview of
Section 8(a)(1) of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Company set forth in section II,
above, and there found to constitute unfair labor practices,
occurring in connection with the business operations of the
Company, as set forth in section I, above, have a close,
substantial, and intimate relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing such commerce
and the free flow thereof.
IV THE REMEDY
In view of the findings above set forth to the effect that
the Company has engaged in unfair labor practices
affecting commerce it will be recommended that it be
required to cease and desist therefrom and, in view of the
finding of unlawful discharge , from any unfair labor
practices (N L.R.B. v. Entwistle Mfg., Co., 120 F.2d 532
number of drivers would be eight
3 The seven drivers are Evans, Gosser , White. Wade . Toomey.
Brandenburg , and Thompson
JACK WALKER TRUCKING SERVICE 543
(C.A. 4)), and take such affirmative action, including the
offering of reinstatement to employees found to have been
unlawfully discharged, with backpay computed in accord-
ance with the remedial pnnciples of F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating Co.,
138 NLRB 716. The posting of an appropriate notice will
be required.
On the basis of the foregoing findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the purview of Sections 2(6) and (7) of the Act.
2. By discharging employees Edmond Gosser, Ralph
Gilbert Thompson, William White, James Toomey, Glen
Evans, Dexter Wade, and Farris Brandenburg because of
their participation in concerted activities for their mutual
aid or protection respecting rates of pay and other terms
and conditions of employment, the Company has engaged
in unfair labor practices within the scope of Section 8(a)(1)
of the Act.
3. The aforesaid unfair labor practices affect commerce
within the purview of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER4
On the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case,
it is recommended that Respondent, Jack Walker Trucking
Service, Inc., its officers, agents, successors, and assigns,
shall:
1. Cease and desist from.
(a) Discharging or in any way discriminating against
employees in reprisal for their participation in concerted
activities looking to their mutual aid or protection.
(b) In any manner interfering with, restraining, or
coercing employees in reprisal for their exercise of their
rights under the Act.
2. Take the following affirmative action which appears
necessary and appropriate to effectuate the policies of the
Act:
(a) Offer employees Edmund Gosser, Ralph Gilbert
Thompson, William White, James Toomey, Glen Evans,
Dexter Wade, and Farris Brandenburg immediate and full
reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority and other
rights and privileges and make them whole for loss of
earnings in the manner set forth in the section above
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, per-
sonnel records and reports, and all other records necessary
to analyze and give effect to the backpay requirements
hereof.
(c) Post at its Lexington office copies of the notice
attached hereto and marked "Appendix." 5 Copies of said
notice, on forms provided by the Regional Director for
Region 9, shall, after being duly signed by Company
President Jack Walker, be posted immediately upon receipt
thereof and be maintained by the Company for a period of
60 consecutive days thereafter in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Company to ensure that said notices are not altered,
defaced, or covered by other material.
(d) Notify the Board's Regional Director for Region 9, in
writing, within 20 days from receipt of this Decision, what
steps have been taken by the Company to comply with the
terms hereof.
4 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 , recommendations 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
5 In the event the Board 's Order is enforced by a Judgment of the 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 "