Steel City Transport, Inc.

National Labor Relations Board - Board Decisions

Mar 1, 1968

170 N.L.R.B. 22 (N.L.R.B. 1968)

22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Steel City Transport, Inc. and Donald B. Smith, An
Individual . Case 6-CA-3858
March 1, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On November 30, 1967, Trial Examiner Samuel
Ross issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to
the Trial Examiner's Decision and a supporting
brief and the General Counsel filed cross-excep-
tions to the Trial Examiner's Recommended Order
and a brief in support of his Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial' Examiner's Decision, the exceptions, the
briefs of the parties, and the entire record in the
case, and hereby adopts the findings,' conclusions,
and recommendations of the Trial Examiner2 with
the modification noted below.'
ORDER
- Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, as modified
below, and hereby orders that the Respondent,
Steel City Transport, Inc., Pittsburgh, Pennsylvania,
its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order, as herein modified.
1. Redesignate paragraphs 1(a) and 1(b) of the
Recommended Order as paragraphs 1(b) and 1(c),
respectively, and insert as paragraph 1(a) the fol-
lowing:
"(a) Discharging, laying off, refusing to rehire,
or otherwise discriminating against any employee
for giving testimony in any Board proceeding
and/or filing charges under the Act."
2. Delete the words "in any like or related man-
ner" from redesignated paragraph 1(c) and insert
in lieu thereof the words "in any other manner."
' These findings and conclusions are based, in part, upon credibility
determinations of the Trial Examiner to which Respondent has excepted.
After a careful review of the record, we conclude that the Trial Examiner's
credibility findings are not contrary to the clear preponderance of all rele-
vant evidence Accordingly, we find no basis for distrubmg those findings
Standard Dry Wall Products, 91 NLRB 544, enfd 188 F 2d 362 (C A 3)
It has been found that Respondent has engaged in violations which go
to the very heart of the Act and has evinced hostility to the rights of em-
ployees to engage in legitimate activities protected by the Act Ac-
cordingly, in order to make the remedy coextensive with the threat of fu-
ture unfair labor practices, we shall amend the Trial Examiner's Recom-
mended Order to enjoin all forms of unlawful interference with rights
guaranteed by Section 7 of the Act
' In view of our decision herein and in accord with our recent decisions
in Bilveu Motor Corp, 161 NLRB 982, and Macy's Missouri-Kansas Divi-
sion, 162 NLRB 754, we shall require that Respondent sign and post a
notice which clearly explains the rights of employees, the manner in which
such rights were violated, and how such rights are being vindicated in this
case Accordingly, the attached Appendix is hereby substituted for the Ap-
pendix attached to the Trial Examiner's Decision.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
After a Trial in which all parties had the opportu-
nity to present their evidence, the National Labor
Relations Board has found that we violated the law
and has ordered us to post this notice and to keep
our word about what we say in this notice.
The National Labor Relations Board has held
that employees have a right to give testimony in
Board proceedings and to file unfair labor practice
charges with the Board without fear of retaliation.
In observance of these and other rights which ' are
guaranteed to employees by the Act:
WE WILL NOT discharge, lay off, or refuse to
rehire any of our employees, or in any other
manner discriminate against them in regard to
their hire or tenure of employment or any-term
or condition of employment in retaliation for
testifying in Board proceedings or for filing
charges with the Board.
WE WILL NOT discourage membership in or
activities on behalf of General Teamsters,
Chauffeurs, and Helpers Local 249, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, by
discharging, or refusing to reinstate any of our
employees, or in any other manner discriminat-
ing against our employees in regard to their
170 NLRB No. 15
STEEL CITY TRANSPORT, INC. 23
hire or tenure of employment or any term or
condition of employment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to
form labor organizations, to join or assist
General Teamsters, Chauffeurs and Helpers
Local 249, affiliated with International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or
any other labor organization, to bargain collec-
tively through representatives of their own
choosing, and to engage in other concerted ac-
tivities for the purpose of collective bargaining
or other mutual aid or protection, and to
refrain from any or all such activities, except to
the extent that such rights may be affected by
an agreement, requiring membership in a labor
organization as a condition of employment, as
authorized by Section 8(a)(3) of the Act, as
amended.
Since the Board has found that we discriminated
against Donald B. Smith by discharging him and
refusing to reinstate him because he testified on be-
half of the Union in a Board proceeding and
because he filed charges with the Board,
WE WILL offer Donald B. Smith immediate
and full reinstatement to his former or substan-
tially equivalent position without prejudice to
any seniority or other rights and privileges
previously enjoyed, and make him whole for
any loss of pay suffered as a result of the dis-
crimination against him.
WE WILL notify Donald B. Smith, if presently
serving in the Armed Forces of the United
States, of his right to full reinstatement upon
application in accordance with the Selective
Service Act and the Universal Military Train-
ing and Service Act, as amended, after
discharge from the Armed Forces.
All of our employees are free to become, remain,
or refrain from becoming or remaining, members of
any labor organization, except as that right may be
affected by an agreement requiring membership in
a labor organization as a condition of employment,
as authorized in Section 8(a)(3) of the Act, as
amended.
STEEL CITY TRANSPORT,
INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 1536 Federal Building, 1000 Liberty
Avenue, Pittsburgh, Pennsylvania 15222,
Telephone 644-2977.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
SAMUEL Ross, Trial Examiner: Based on a charge
filed on March 1, 1967 by Donald B. Smith, an in-
dividual, the General Counsel of the National
Labor Relations Board issued a complaint on April
27, 1967, alleging that Steel City Transport, Inc.
(herein called the Respondent or the Company),
had engaged and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(3), (4),
and (1) of the Act by terminating the employment
of Smith because he gave testimony under the Act
in a prior Board proceeding against the Respon-
dent, and by thereafter refusing to reinstate him
because he filed the charge in this case. The
Respondent filed an answer to the complaint which
contends that Smith was not its employee within
the meaning of the Act, but an independent con-
tractor, denies that Smith was either discharged
because of his testimony in the prior Board
proceeding, or refused reinstatement because he
filed the charge in this case, and denies the com-
mission of unfair labor practices.
Pursuant to due notice, a hearing on the issues
thus raised was held before me at Pittsburgh,
Pennsylvania, on June 20 and 21, 1967. Upon the
entire record,' and my observation of-the witness
and their demeanor, and after due consideration of
the briefs filed by the General Counsel and the
Respondent, I make the following:
FINDINGS OF FACT
1. COMMERCE
The Respondent, a Pennsylvania corporation
whose principal office and terminal is located in
Pittsburgh, Pennsylvania, is a motor carrier which is
engaged in the business of transporting goods in the
States of Pennsylvania, West Virginia, and Ohio,
under a certificate of public convenience and
necessity issued to it by the Interstate Commerce
Commission. During the 12-month period preced-
ing the issuance of the complaint in this case, the
' By stipulation of the parties , the record in this case includes the trans-
cript of the testimony which Smith gave at the Board hearing in Steel City
Transport , Inc, and General Teariisters , Chauffeurs and Helpers Local 249,
affiliated ii itli International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Case 6-CA-3710 , and all other
portions of the transcript in that case which are relevant to the issue of
whether Smith , an owner-operator, was an employee. of Respondent, or an
independent contractor
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent received revenues in excess of
$500,000 for its services in transporting materials
across State lines from and to the Commonwealth
of Pennsylvania . Upon the foregoing admitted facts,
I find that the Respondent is engaged in commerce
within the meaning of Section 2 ( 6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The pleadings admit and I find that General
Teamsters, Chauffeurs and Helpers Local 249, af-
filiated with International Brotherhood of Team-
sters , Chauffeurs, Warehousemen and Helpers of
America (herein called the Union), is a labor or-
ganization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
In the operation of its business of hauling steel,
the Respondent utilizes tractors and trailers which
for the most part it leases from individual owners of
such equipment pursuant to the terms of a standard
lease agreement. The operation of that leased
equipment for the Respondent is performed by
three different classifications of drivers:
(1) Owner-drivers who drive the single tractor
and trailer which they own, or who drive the single
tractor which they own in conjunction with a trailer
owned by the Respondent;
(2) Multiequipment owner-operators who own
two or more tractors which are leased to the
Respondent at the same time, and who drive one of
them for the Respondent; and
(3) Nonownerdrivers who drive tractors which
are owned by the multiequipment owner-operators.
Prior to 1966, the Respondent's truckdrivers had
not been represented for collective-bargaining pur-
poses by any labor organization. In the spring and
early summer of 1966, a group of the Respondent's
truckdrivers solicited their fellow drivers to sign
cards designating the Union as their collective-bar-
gaining representative. Thereafter, the following in-
cidents took place in 1966: On June 27 the Union,
claiming majority status, demanded recognition by
the Respondent as the representative of its
truckdrivers; on July 15 and 27 the Union's
representatives met with Respondent's President
Paul Brandt and other representatives of the
Respondent and explained to them the terms and
meaning of the Union's over-the-road agreement, a
copy of which, and the "Steel Addendum" thereto,
had been furnished to Brandt on June 27;on August
8, the Respondent notified the Union that it would
not recognize it as the representative of its
truckdrivers without a Board election, because it
regarded them as independent contractors and not
employees within the meaning of the Act; on Au-
gust 17, the Union filed a charge with the Board al-
leging that the Respondent, by such refusal, had en-
gaged in unfair labor practices within the meaning
of Section '8(a)(5) amdnd (1) of the Act (Case
6-CA-3710); and on December 21, the General
Counsel of the Board issued a complaint and notice
of hearing based on said charge. Thereafter, a hear-
ing on the said complaint was conducted before
Trial Examiner John F. Funke on February 13, 14,
15, and 17, 1967. The Charging Party Smith was a
witness for the General Counsel in that proceeding.
On April 26, 1967, Trial Examiner Funke issued his
decision in which he concluded, inter alia , that all
the Respondent's truckdrivers, except multiequip-
ment-owner-operators (who were found to be su-
pervisors), were employees of the Respondent and
not independent contractors within the meaning of
the Act; that on the dates when the Union de-
manded recognition, it was the majority representa-
tive of said employees, and that the Respondent by
refusing to recognize and bargain with the Union
had violated Section 8(a)(5) and (1). On June 30,
1967 (9 days after the conclusion of the hearing in
the instant case), the Board issued its Decision and
Order2 adopting the findings, conclusions, and
recommendations of the Trial Examiner with a
minor modification, not material to the issues in
this case.'
B. Smith's Employment History with Respondent
before he testified in the prior Board case
Smith was hired by the Respondent on July 24,
1961, to drive his 1957 international harvester trac-
tor and 1955 Fruehauf flat-bed trailer pursuant to
the terms of Respondent's standard "Equipment
Lease Agreement" executed on that date.
Thereafter, Smith continued to work for Respon-
dent until February 1964 when he sold the equip-
ment which then was on lease to Respondent. On
November 17, 1965, Smith again was hired by
Respondent to drive his 1962 GMC tractor and
1963 Trail Ez flat-bed trailer pursuant to Respon-
dent's standard lease agreement,, and thereafter, he
continued to drive equipment which he leased to
the Respondent until his termination (on February
28, 1967) which is the subject ' matter of this
proceeding. The equipment which Smith leased to
and drove for Respondent during these two periods
of employment changed from time to time when-
ever Smith replaced a mechanically deficient, or
worn out, tractor and/or trailer with another which
was operable.' On all such occasions Smith ex-
166 NLRB No. 54
' A petition to review and set aside the Board 's Decision and Order has
been filed by the Respondent and is presently pending before the Court of
Appeals, Third Circuit.
' During his employment by Respondent, Smith leased a total of eight
different tractors to the Company
STEEL CITY TRANSPORT, INC. 25
ecuted a new standard lease agreement covering
the new equipment. However, he leased and drove
only one tractor and one trailer for Respondent at
any one time, except during the period between the
latter part of February 1965 and June 10, 1966,
when Smith had two tractors on lease to the
Respondent at the same time. Accordingly, since
Smith, at the time of his termination, concededly
was a single owner-driver, I find, on the basis of the
Board's decision in the prior case against Respon-
dent, that he was its employee within the meaning
of the Act.
During his approximately 4 years of employment
by Respondent, Smith was involved in three ac-
cidents, the last of which occurred on February 6,
1967, under the following circumstances:
As Smith was driving on the Manchester Bridge
in Pittsburgh with a load consisting of two 23,000
pound steel slabs on his trailer, a car, passing on the
right, sideswiped the right tires of the trailer and
sped off without stopping. Smith saw the car in his
"right side mirror" just before impact and swerved
to the left to avoid being struck, and as a con-
sequence, the steel slabs slid off the trailer and fell
to the floor of the bridge. Smith reported the ac-
cident to the Pittsburgh Police "as a hit and run."
Other than marks on Smith's trailer tires, there was
no damage either to Smith's trailer or to the slabs.
However, the Respondent had to hire a crane at a
cost of $134 to pick,up the steel slabs and reload
them on to Smith's trailer.
During his employment ' by Respondent, Smith
also was found guilty of three traffic infractions, the
last of which occurred on December 26, 1966.
On February 13, 1967, Smith was arrested at the
Respondent's terminal on a charge of issuing two
checks without sufficient funds to the Common-
wealth of Pennsylvania, and posted a surety bond
for his appearance in court to answer the charge.'
In addition, during the course of his employment
by Respondent, Smith suffered occasional break-
downs of his equipment which rendered it inopera-
ble, the last of which occurred in connection with
Smith's accident on October 11, 1966. On that oc-
casion, Smith's equipment was out of commission
for about 6 weeks before repairs were completed,
and the only comment by any of Respondent 's offi-
cial was that of its dispatcher, John Murray, who
said to Smith, "It's a shame you're stuck so long."
None of the foregoing accidents, traffic infrac-
tions, or breakdowns, evoked from the Respondent,
any warning or admonition to Smith, or any
disciplinary action. Smith's current leases were
never cancelled as a consequence of any of these
occurrences, and he continued to drive for the
Respondent, even after his arrest on February 13,
1967. In respect to this last incident, Respondent's
Assistant General Manager John Brandt admitted
that he "did not talk to Mr. Smith about it,"
because it was "none of my business."
C. Smith's Union Activity and his Testimony in the,
Prior Board Case against Respondent
During the Union's organizational campaign in
the spring and early summer of 1966, Smith did not
personally "sign up" any of Respondent's drivers to
union authorization cards, but he did assist Clyde
E. Slayter, the chief union proponent at the
Respondent's terminal, in soliciting such signa-
tures.6 On July 27, 1966, Smith was a member of
the Union's "bargaining committee" consisting of
three drivers, who together with John V. Reed, the
Union's business agent, met with Respondent's Pre-
sident Paul W. Brandt and its counsel, C. Donald
Gates, Jr., and sought recognition of the Union as
the collective-bargaining representative of the
Company's drivers.
On February 14 and 15, 1967,8 Smith testified as
a witness for the General Counsel in the prior
Board proceeding in which the Respondent was
charged with, and later found by the Board to have
engaged in, unfair labor practices within the mean-
ing of Section 8(a)(5) and (1) of the Act. One of
the principal issues in that case was whether the
Respondent's owner-drivers were employees within
the meaning of the Act, or independent contrac-
tors. In all, Smith was called to the stand by the
General Counsel three times. On February 14,
Smith testified, inter alia, that the multiequipment
owner-drivers who worked for Respondent were
required to obtain the Company's prior approval
for the persons whom they could-hire to drive their
equipment; that the Respondent required Smith to
accept loads for Columbus in southern Ohio,
despite his preference for nothern Ohio loads; and
that the Respondent also required its drivers, who
picked up loads at certain locations outside the
Pittsburgh commercial zone, to "gateway" (drive)
through the zone before proceeding to their
destination, regardless of whether this was the most
direct route from point of pickup to point of
destination. In ' connection with this latter
testimony, Smith was recalled to the stand on
February 15, and through him, the General Counsel
introduced into evidence a copy of a map made by
"a public copying service," the original of which
Smith had removed from the bulletin board in
Respondent's bunk room the day before. On the
map appeared the following legend: "ALL
S As of the time of the hearing in this proceeding, no date had been set
for the trial of this charge against Smith
' See the Trial Examiner 's Decision , in the earlier Section 8(a)(5) case,
the paragraph preceeding section III "The Remedy" and its accompanying
footnote, 166 NLRB No 54.
' Contrary to the Respondent's contention, I do not regard the foregoing
union activity of Smith as " minor in nature " However , since the General
Counsel at the hearing expressly disclaimed reliance on any of Smith's
union activities other than his testimony before the Board in the prior case,
I will base no finding or conclusion of violation thereson
' All dates hereafter refer to 1967 unless otherwise noted
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DRIVERS NOTICE. Pick-ups & deliveries from
Greensburg, Alliquippa, Pa., Midland, Pa.,
McKeepsport, Pa., Monesson, Pa., Allenport, Pa.,
[and] Canonburg, Must Gateway through Pitt-
sburgh Commericial Zone." [Emphasis in
Original.] Smith was vigorously cross-examined by
Respondent counsel regarding the manner in which
he obtained the map, and to show that according to
his own trip logs, he did not always comply with the
gatewaying requirement. ,
In the foregoing respects, Smith's testimony was
not, as contended by Respondent's brief, merely
"accumulative" of other witnesses for the General
Counsel. Moreover, Smith's testimony concerned
the issue of Respondent's control, both of the end
to be achieved by its drivers, and the means used to
achieve such end, and thus tended to prove the em-
ployee status of the owner-drivers.' Accordingly,
the Respondent's contention that Smith's testimony
"was of doubtful damage to the Respondent" is re-
garded as without merit.
D. Events Following Smith's Testimony , and his
Discharge
1. The breakdown of Smith's truck
On February 21, a week after Smith testified, his
tractor "broke down" while he was delivering a
load of steel for the Respondent. Smith called the
Company's terminal, arranged for the delivery of
the load by another of Respondent's owner-drivers,
and notified Dispatcher John_ Murray of his break-
down, and that the load was nevertheless being
delivered. Smith's tractor was then towed back to
the terminal. When Smith returned to the terminal
later that afternoon, he found Thomas McFate,,a
representative of the finance company which held
the notes on his tractor, waiting for him, and was
advised by McFate that it was being repossessed
because he was 2 months in arrears in his pay-
ments.10
Immediately following his conversation with Mc-
Fate, Smith told Respondent's Assistant General
Manager Brandt that he was undecided as to what
he would do about his tractor, but that he would let
him know. Smith then turned in his freight bills for
payment, and Brandt deducted from the amount
due Smith the $134 which it had paid to reload the
steel slabs onto Smith's trailer on February 6. Smith
asked Brandt why the deduction was being made,
and the latter, whose testimony to this extent is
Deaton Truck Lines , 143 NLRB 1372, 1377
10 The next day Smith was offered an opportunity to refinance the trac-
tor, but he did not then accept the offer because it did not include funds for
the extensive repairs ( about $1,000 ) which were required , and because he
was still uncertain regarding the feasibility of repairing the tractor. Sub-
sequently , on February 28, the finance company sent Smith a formal notice
that he could redeem his tractor at any time before March 15 at 5 p in., and
that unless he did so, it would be sold (G C Exh 2)
11 For reasons explicated infra, I regard Brandt's testimony as generally
unreliable.
credited," replied that Smith's engine "was broken
down," that "his truck had been repossessed," and
that he didn't want to be "stuck" for the money.
Smith responded, "Well, this isn't fair," and-he left
the office.
The Respondent carries cargo loss insurance, and
normally, when a loss occurs, the Company files _a
claim with its insurance carrier, and the owner-
drivers are not monetarily involved. When Brandt
was cross-examined regarding the apparent depar-
ture in Smith's case from Respondent's normal
practice in regard to cargo loss claims, his evasive
testimony suggested, but did not specifically assert,
that because the steel slabs were not damaged by
Smith's February 6 accident, the loss was not
covered by the insurance. In addition, when asked
whether a claim for this loss was filed by Respon-
dent with the insurance carrier, Brandt first
testified "I don't believe we did," but later he ad-
mitted, "I believe we possibly carried out the for-
mality of filling out the forms. There is a record of
it. If its there . . . . The Respondent did not
produce the insurance policy, or any other
testimony or record to show either that this loss was
not covered by the insurance or that a claim had
not been filed to recover'the $134: Since these
were matters peculiarly within Respondent's pos-
session and control, and I regard- Brandt's uncor-
roborated testimony as generally unreliable, I place
no credence in neither his testimony which sug-
gested that this loss was not covered by the in-
surance, nor in his equivocating testimony regard-
ing whether a claim for the loss, had been, filed by
Respondent. To the contrary, I infer the opposite to
be true.12
But even assuming that the Respondent's in-
surance did not cover this loss, that no claim had
been filed by Respondent to recover the sum which
it paid to reload Smith's truck, and that Smith thus
owed the $134 to Respondent, the deduction of this
amount from Smith's pay on February 21 was a
clear departure from Respondent' s normal practice
in similar circumstances.
In this regard, the record in this case shows
without contradiction that in 1964, when the truck
which Smith then owned was repossessed `because
he was two payments behind, and the amount then
due Smith for his services was insufficient'to meet
the payments, the Respondent gave him an advance
of $100 so that he could get his, truck back. Hugo
Salvatore, another owner-driver, received cash ad-
vances of as much as $300 to meet payments on his
12 As the Supreme Court said in N.L.R B v Walton Mfg. Co, 369 U S.
404, 408, quoting with approval from the opinion of Judge Learned Hand
in Dyer v MacDougall , 201 F 2d 265, 269 (C A 2)
For the demeanor of a witness
` may satisfy the tribunal , not only that the witness ' testimony
is not true , but that the truth is the opposite of his story , for the
denial of one , who has a motive to deny, may be uttered with such
hesitation, discomfort , arrogance or defiance , as to give assurance
that he is fabricating , and that, if he is , there is no alternative but
to assume the truth of what he denies '
STEEL CITY TRANSPORT, INC. 27
equipment, to pay for license plates, and to cover
the cost of repairs to his truck. Harvey Oiler,
another driver, also received a cash advance of
$125 from Respondent to pay for repairs to his
tractor.l" The uncontroverted record both in this
and the prior Board case also establishes that when
the amount of these advances is large ($200 or
more), the Respondent permits its owner-drivers to
repay their debt in installments of $25 or more, de-
pending on the situation, and as Brandt admitted,
"a level that he [the owner-driver] could afford."
On February 21, when Brandt deducted $134 from
Smith's earnings, the total compensation due him
was $179.62, and Smith thus received only $45.62.
This disparity between the Respondent's treat-
ment of Smith on this occasion, and its usual prac-
tice of assisting owner-drivers with advances when
in need, permits the conclusion, which Brandt in ef-
fect admitted, and which I make, that the Respon-
dent then intended to terminate the further employ-
ment of Smith."
2. Smith's termination on February 28
After February 21 Smith was not asked by the
Respondent to take out another load. However, on
Friday, February 24, Smith was requested by Clif-
ford Seibel, another.of Respondent's owner-drivers,
to seek a load for -Seibel's truck ( then in the Inter-
national Harvester garage for repairs which were
scheduled to be complete that evening), and to
drive it, if a load was available, while Seibel visited
his out-of-town home. Smith called Respondent's
Dispatcher John Murray and received an assign-
ment to pick up a load of steel and deliver it to
Twinsburg, Ohio. Smith picked up Seibel's truck,
and on Monday, February 27, at 4 a.m. he loaded
the truck, but when he attempted to drive it fully
loaded, he discovered that it vibrated and did not
function properly. Smith then immediately drove it
back to the International Harvester garage, waited
for the garage to open, and was told that the truck
would be repaired by that afternoon. He then
telephoned Dispatcher Murray, told him what had
happened, and that the load would be delivered
that evening. Murray said, "All right." Because of a
parts shortage, the truck was not repaired that day.
On the following morning, Tuesday, February 28,
Smith returned to the International Harvester
garage and there met Seibel, who had returned
from his trip. They both then learned that the parts
for Seibel's truck had been received, and that the
repairs would be completed in an hour or two.
Seibel then telephoned Dispatcher Murray to ad-
vise him about the delay in completing.the delivery,
and was informed that Assistant General Manager
Brandt wanted to talk to him. Brandt got on the
telephone and asked why the load had not been
delivered, and Seibel "told him." Brandt then asked
if Smith was going to deliver the load, and Seibel
replied, "whichever one of us is here at the time the
truck is ready." Brandt then asked Seibel if Smith
was going to drive regularly for him. Seibel'said,
"No, I only got one truck." Brandt then told Seibel
that "Don [Smith] was done," that his lease "was
cancelled," and that "he wasn't working there any
more." Seibel replied that Smith had a valid physi-
cal,15 and therefore was qualified to be a driver. At
the conclusion of this conversation, Seibel. told
Smith "that his lease had been cancelled and he
was done up there." Seibel thereafter made the
delivery himself."
On the day following Seibel's conversation with
Brandt (March 1), Smith again visited the Interna-
tional Harvester garage and initiated negotiations
for the purchase of a used 1959 tractor to replace
the one that had broken down and had been repos-
sessed. Smith then went to the Respondent's ter-
minal and had a conversation with Assistant
General Manager Brandt. According to Smith's
credited testimony, he told Brandt, "I understand
from Mr. Seibel that my lease has been cancelled."
" The fact that Respondent makes advances to its owner-drivers to pay
for repair bills and to assist in the purchase of equipment is also established
by the uncontroverted record and'findmgs in the prior Board case against
Respondent
14 Thus,'Brandt admitted that he would not have deducted the $134 from
Smith 's pay "under normal circumstances ," and he testified as follows
when he was asked whether his reason for the deduction of the full amount
was that he was "terminating Smith"
THE WITNESS You're saying [asking] did we deduct it because
he was terminated at that time?
TRIAL EXAMINER: Yes.
THE WITNESS, I'd say yes, we took the money because of his
situation , and I didn 't want to be stuck
Under the terms of the Respondent's standard lease agreement, the
equipment owners are required "to furnish a physically fit operator, or
driver" for the leased equipment, and pursuant thereto and Interstate Com-
merce Commission regulations , the Respondent 's drivers must take a
physical examination every 3 years and carry on their person a current doc-
tor's certificate that they are physically'qualified to drive
11 The findings in respect to the foregoing conversation are based on the
credited testimony of Seibel. Brandt, the 22-year old son of Respondent's
president, admitted that he told Seibel that Smith's lease had been can-
celed, but he denied that he told Seibel that Smith "couldn't drive " I do
not credit Brandt's denial because I regard his testimony as generally un-
worthy of belief My reason for disbelieving much of Brandt 's testimony is
that despite his obvious intelligence , it was , in many instances , self-con-
tradictory, evasive, and quite apparently motivated by what Brandt, at the
moment , regarded to be in the Respondent's best interest Two examples of
self-contradictory testimony by Brandt follow (a) Brandt testified that the
decision to cancel Smith 's lease was a part of Respondent 's program to can-
cel all leases , outstanding since 1953 , on equipment which no longer was
operating He also testified that the cancellation of Smith 's leases was "no
different" from that of the others which Respondent canceled at the same
time However , Brandt 's other testimony clearly disclosed that only in
Smith 's case was a lease canceled on current equipment ( b) Brandt
further testified that cancellations, both of Smith 's leases, and those of
other owner-drivers, were sent by registered mail, but that "it was costing
us too much money " However , when Brandt was cross -examined to deter-
mine how he selected whose cancellations to send by registered mail he
eventually admitted that only Smith 's cancellation was so sent The
Respondent 's brief (p 8) suggests that "the seeming confusion " and "in-
consistency " of Brandt 's testimony should be disregarded because Respon-
dent "was pursuing two inconsistent theories of defense at the hearing,"
one, that Smith was an independent contractor, and the other , that he was
discharged for cause Obviously the Respondent was legally entitled to pur-
sue inconsistent defenses, but this does not excuse the tailoring by Brandt
of his testimony in furtherance of Respondent's defense objectives
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brandt replied, "That's right. You no longer work troverted and credited testimony,L° the following
here." Smith asked, "Why?" Brandt replie that ac- conversation ensued:
cording to the lease, the truck owner was required HUSK: Smitty, you
to furnish equipment to Respondent "at all times," problem?
and that since Smith's truck "was broken down,"
he was unable to' comply with the terms of the
lease. Smith replied that he had suffered break-
downs before, "and there had never been any par-
ticular problem." Smith also told Brandt that he
was "not sure" whether he would repair his old
tractor, and that he would probably replace it with
another one. Brandt replied, "I don't care what you
do. You're through here.... We are not hiring any
trucks at this time." Brandt also said that as far as
he was concerned, "You will never work here
again ." According to Brandt's testimony, credited
to this extent, Smith then said just before he left,
"This is what the National Labor Relations, Board
told me to watch out for. I'm going don im-
mediatel' and file an unfair labor practice
charge. " 7
That same day, Smith filed the charge with the
Regional Office on which the complaint herein is
based.
3. The refusal to reemploy Smith
On the following day (March 2), Smith
purchased a used International Harvester tractor to
replace the one which had broken down and had
been repossessed. After completing his purchase,
Smith went to the Respondent's terminal to pay
some small personal debts to a couple of the
drivers, and to collect one that was owed to him.
While Smith was talking to some of the drivers "in
the drivers' area" near the dispatch office," Brandt
yelled from inside the office,' Smith, you no longer
work here." Smith replied, "Well, that's what you
have said, John." Brandt then said, "Then I suggest
that you leave." Smith responded, "Well, I will be,"
and resumed his conversation with drivers Morgan
and Seibel. A few minutes later, Brandt yelled,
"Smith, you see that door behind you. You have 60
seconds to get out of it." Smith replied, "If you
think you're big enough, come around and put me
out." Brandt did not reply, but instead left the
dispatch office and entered the "general office. "19
A few minutes later, Respondent's General
Manager George Husk came out of the general of-
fice and asked Smith to step outside to talk with
him. Smith complied, and according to his uncon-
"Brandt admitted that he told Smith that his lease had been canceled
because "he [Smith] was unable to furnish the equipment," but he denied
that he told Smith that he was 'through" as a driver for the Respondent I
do not believe or credit Brandt's denial because I regard his testimony as
generally unreliable, and because on the next day, as described more fully,
infra, Brandt admittedly ordered Smith off the Respondent's premises
because he no longer worked there, a course of action inconsistent with
Brandt 's denial
" According to driver Seibel's credited testimony which was not con-
troverted, the place where Smith stood when he was ordered off the
premises is an area where drivers wait and talk while waiting for loads, that
seem to have a
SMITH: Well, John [Brandt] seems to think
so.
HUSK: Well, why are you here?
SMITH: I was clearing up a few loose ends.
I don't know why John's became so hostile
about this.
HUSK: After all, you went over yesterday
and filed a charge-Those charges with the
Labor Relations Board.
SMITH: Mr. Husk, what was I supposed to
do?
HUSK: Well, John has taken' a stand on this,
and I'm going to back him up.
SMITH: Well, I guess you have to back him
up. He's the boss' son.
HUSK: Well, you said that, I'didn't.
SMITH: No, but you're not denying it. All I
wanted was to go back to work at Steel City.
HUSK: Well, but you filed those charges.
SMITH: Well, they can very easily be
dropped. All I want is my job back.
HUSK: Well, until this thing is settled, I sug-
gest that you not hang around.
SMITH: Fine. I have a few more minutes of
things to clear up. Then I'll be leaving.
Husk then left and Smith returned to the drivers'
area, and, after talking to several of the drivers, he
had a conversation with' Respondent's Operations
Manager Edward Carroll. According to Smith's un-
controverted and credited testimony, corroborated
in substance by Seibel,21 Smith said to Carroll, "Ed,
I have a truck available. Are you putting on any
trucks?" Carroll replied, "Smitty, I cannot put you
back on. It's out of my hands." Smith then said, "I
just want it known that L have a truck and formally
want to go back to work." This conversation was
Smith's last contact with Respondent's officials.
On the following day, ,March 3, the Respondent
admittedly opened a newterminal at New Kensing-
ton,,Pennsylvania, about 20 miles from Pittsburgh,
and within a short time thereafter, it hired a
number of owner-drivers to work out of the new
terminal. In addtion, at least one former owner-
driver was put on by Respondent at its Pittsburgh
terminal after Smith's termination. Notwithstanding
Smith's "formal request described ',above, he was
never reemployed by Respondent.
there was nothing "unusal" in Smith 's presence in this area ; that "lots" of
"people" other than Respondent 's drivers frequent it, including former
drivers who come to visit and talk to Respondent 's drivers , and that before
Smith's termination , former drivers were permitted to sleep over in the
Respondent's bunk room facilities , adjacent to this area ,
'9 The findings above are based on the credited testimony of Smith which
was corroborated by Respondent 's driver Seibel , who described the tone of
voice used by Brandt as "screaming at Smith like a screaming meemie."
Y0 Husk was not called as a witness for Respondent and no explanation
was offered for its failure to do so -
21 Carroll was not called to testify for Respondent
STEEL CITY TRANSPORT, INC. 29
E. The reasons asserted by Respondent for Smith's
termination and the refusal to reemploy him
1. That the cancellation of Smith's lease was not a
termination of his employment
The Respondent's initial contention, as outlined
by its counsel in his opening statement and by
young Brandt's testimony, was that the cancellation
of Smith's lease on February 28 was not a termina-
tion of his services by Respondent, but merely a
part of a general program, initiated at that time and
not limited to Smith, to bring Respondent's records
up to date by canceling all outstanding leases on
equipment which no longer was being operated in
the Respondent's business.
Prior to February 28, although Smith and the
Respondent's other owner-drivers had changed
their equipment over the years as old equipment
broke down and/or' was replaced, the Respondent
had entered into additional leases for their new
equipment, but had not canceled the old leases.
Brandt testified that "there was a lot of discussion
[at the prior Board hearing in February] about out-
standing leases," and therefore, after consulting
with counsel to determine that he "could legally do
this,"22 he decided to cancel all the old leases.
Brandt further testified that the cancellation of
Smith's leases was one of about 200 which Respon-
dent started to mail or deliver personally on
February 28, that the whole cancellation process
consumed about 2 months, and that the decision to
cancel ,Smith's leases "was no different" than "the
decision to cancel all the other leases on equipment
which was no longer' operating."
Contrary to Brandt's testimony, I conclude from
the record that at least in respect to Smith, the
Respondent's action, on February 28 was not the
mere correction of its prior laxity in failing to can-
cel old; leases, but was in fact a final termination of
Smith's services. My'reasons for this conclusion are
as follows:
(a) Although Brandt assertedly also canceled the
leases of other owner-drivers on February 28, he
was unable to recall the name of a single one whose
lease was then canceled. All of the owner-drivers
who testified for the General Counsel in this regard
stated without contradiction that their old leases
were canceled either I month after Smith's ter-
mination or later.23 Obviously, the Respondent
could, have produced the copies of the lease cancel-
lations, which its owner-drivers were required to
sign to' show that other leases had also been can-
celed-dn February 28,24 but it did not and it offered
no explanation for its failure to do so. Since I re-
gard Brandt's uncorroborated testimony as
generally unreliable, and in the light of the failure
of the Respondent to produce corroborative docu-
mentary evidence available to it, I infer that the
only cancellation sent by the Respondent on
February 28 was that of Smith's leases.
(b) Even assuming that the Respondent had also
canceled other leases on February 28, unlike the
other cancellations, which were for equipment that
had been replaced by their owner-drivers, Smith's
admittedly was the only cancellation for equipment
which had been operating currently and had not yet
been replaced.
(c) The Respondent previously (on February
21) had indicated its intention to terminate Smith
when the latter's tractor was repossessed, and con-
trary to its usual practice of rendering financial
assistance to its owner-drivers in such circum-
stances, the Respondent had deducted $134 from
Smith's pay because, as Brandt in effect admitted,
Smith was being "terminated," and "I didn't want
to be stuck."'
(d) According to the previously credited
testimony of both Smith and driver Seibel, Brandt
had told them on March 1 and February 28, respec-
tively, not only that Smith's lease had been can-
celed, but also that his employment by the Respon-
dent was terminated.
(e) Finally, on March 2, when Smith visited the
Respondent's terminal for the purpose of cleaning
up some personal debts, Brandt admittedly
requested him to leave the premises because he no
longer was employed by Respondent.
For all of the foregoing reasons, I regard Brandt's
testimony that Smith's lease cancellation was "no
different" than the others,- as unworthy of cre-
dence, and the contention that it was not a termina-
tion of Smith's services, as devoid of any merit.
2. That Smith's lease was canceled because of his
lack of operable equipment
At the time of the cancellation of Smith's lease,
and his termination, the sole reason admittedly
given him by Brandt was that Smith's truck was
broken down and repossessed, and that Smith
therefore was unable to furnish the equipment
required by the lease. I regard this reason for the
cancellation of Smith's lease and his termination as
unworthy of any credence for the following
reasons:
(a) Smith had told Brandt on February.21 that
he was uncertain as to what he would do about his
broken-down and repossessed tractor, but that he
would let Brandt know when-he decided. Thus, in-
sofar as Brandt knew on February 28, Smith's latest
41 The members of the law firm which represent Respondent are also all
stockholders of Respondent.
2S Thus, these cancellations were effected after Smith had filed the unfair
labor practice charge against Respondent in this case.
24 See Smith's lease cancellation , T E. Exh 1.
25 See 2 Wiginore, Evidence § 285 (3d ed.), Whitin Machine Works, 100
NLRB 279, 285; Hilma H Erickson, and Erik E. Erikson d/b/a Detroit
Plastic Products Company, 121 NLRB 448, 499.
Zs See fn. 14, supra.
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tractor on lease to the Respondent was still capable
of being refinanced and repaired.'
(b) Smith had not been asked by the Respon-
dent to take out a load, and thus his temporary ina-
bility to provide equipment had not disadvantaged
the Respondent.
(c) Although Smith had equipment available for
use by Respondent only 2 days after it had canceled
his other leases, and so notified both the Respon-
dent's general manager and operations manager,
the Respondent refused to utilize his equipment,
notwithstanding that it was then in the process of
opening a new terminal and putting on additional
owner-drivers to staff it.
(d) The Respondent's strict enforcement of the
lease provisions in Smith's case was a radical depar-
ture from its previously consistent policy of con-
doning and overlooking breaches of its standard
lease. In this regard the undisputed record shows as
follows:
The Respondent's standard lease provides, inter
alia, that any failure by the owner to furnish equip-
ment is a breach for which it can be canceled
without notice. The lease also requires that all
drivers of the leased equipment must "comply with
all state weight 1aws,'s and may "not accept loads in
excess of the limits allowed by [the] states through
which the equipment must travel." In addition, the
lease requires all drivers to have knowledge of, and
to comply with, "all safety laws and regulations,"
both State and Federal.
(i) Before the earlier Board proceeding against
Respondent, both Smith and other owner-drivers
who worked for Respondent occasionally suffered
breakdowns, accidents, and other 'difficulties with
their equipment which made them inoperable for
various periods lasting from a few days to as long as
5 or 6 weeks. Notwithstanding the resulting inabili-
ty of Smith and such other owner-drivers to furnish
equipment to Respondent as required by their
leases, they were not canceled and the further em-
ployment of Smith and such other owner-drivers
was not terminated.28
(ii) In addition, there were frequent occasions
when owner-drivers, while working for Respondent,
were arrested and/or fined for various road and
safety infractions, including driving with overweight
loads,- speeding, unsafe operation, and involvement
in accidents. Although these incidents, especially
overloading infractions, quite apparently con-
stituted breaches of the terms of the leases, the
Respondent did not cancel the leases or terminate
the employment of the drivers involved. To the
contrary, it occasionally advanced funds to them
with which to pay their fines,29 and posted bail for
their release from jail.
(iii) In early 1964, when Smith's equipment was
repossessed, the Respondent not only did not can-
21 See fn 10, supra
2" The findings above are based on the uncontroverted and credited
testimony of Smith, Thomas William Keffer, Hugo Salvatore, Thomas R
Willard, and Harvey W Oiler
cel Smith's lease or terminate his employment, but
it advanced him $100 to assist him to meet his ar-
rears. Moreover, when Smith, in Nvember 1965,
applied to work again for Respondent after an in-
terval of other employment, the earlier repossession
of Smith's equipment did not deter the Respondent
from reengaging his services.
(e) The Respondent has offered no credible ex-
planation, either for the departure in Smith's case
from its previously consistent practice of overlook-
ing and condoning technical breaches of its stan-
dard lease, or for applying it literally on this occa-
sion.
All of the foregoing circumstances persuade me,
and I find, that the assignment of Smith's inability
to furnish equipment as a reason for the cancella-
tion of his lease and for his termination was an ob-
vious pretext to conceal the true reason therefor.
3. Smith's arrest on February 13
As previously noted, the only reason given to
Smith for the cancellation of his lease and his ter-
mination was his inability to furnish equipment as
required by his lease. However, by a ,letter dated
March 10 to the Board's Regional Office, the
Respondent's counsel (and stockholder) assigned
the following additional reason for not employing
Smith. Thus,'the letter stated:
We do not desire to have Mr. Smith drive for
any of our independent contractors in view of
the fact that Mr. Smith was recently arrested
for passing a bad check to the Commonwealth
for his license fee.
The Respondent now-contends that Smith's arrest
was one of the reasons for his termination and the
refusal to reemploy-him.
- As noted previously, Smith was arrested on
February 13 at the Respondent's terminal on a
charge of passing" two checks without sufficient
funds to the Commonwealth- of Pennsylvania for
license fees and promptly posted a surety bond for
his appearance in court to answer the charge
which, at the time of the hearing herein, had,not
yet been set for trial. Although Brandt admittedly
knew of the arrest when it occurred, and even I'
week before,, he made no comment regarding it to
Smith because, as Brandt testified, it was "none, of
my business." - Notwithstanding the arrest, Smith
was not terminated and he continued to drive for
Respondent, until the later breakdown of his equip-
ment and termination. Smith was not then, or, at
any time thereafter, told that his termination or the
refusal to -utilize his services was in, any way at-
tributable to his arrest. _
All of the foregoing persuade me, and I find, that
the resurrection of this arrest as a reason for not
employing Smith is clearly an afterthought and a
29 In•some cases, the fines were quite substantial . Thus;"the record dis-
closes that for overloading infractions , the fines ran as high as $400
STEEL CITY TRANSPORT, INC. 31
pretext on the part of the Respondent to conceal
the true reason therefor.
4. Smith's traffic infractions and accidents
The Respondent further contends that its ter-
mination of Smith and refusal to reemploy him was
justified by his poor driving record which included
three accidents and three traffic violations. The
issue before me for determination is not, however,
whether Smith's driving record justified his
discharge and the refusal to reemploy him, but
rather is whether that, or unlawful considerations,
motivated this action. For the reasons hereinafter
stated, I am persuaded by the record that this as-
serted ground for discharge was not the Respon-
dent's motivation therefor, and is merely another
afterthought and pretext to conceal the real reason.
(a) One of Smith's three accidents occurred in
August 1963 and clearly was caused by the failure
of Respondent's mechanic, when installing two new
wheels on one of its trailers, to properly fasten
them. Some time after this accident, the Respon-
dent, as noted above, hired Smith for a second
time, and thus, it obviously did not regard him then
as a poor driver, or he would not have been reem-
ployed. The present resurrection of this old ac-
cident as part of Smith's allegedly bad driving
record, clearly discloses the lengths to which the
Respondent has reached in its efforts to justify
Smith's termination.
(b) Of the other two accidents, one occurred in
October 1966 and both Smith and the other partici-
pant were found guilty of traffic infractions in con-
nection therewith. The last accident, previously
described, occurred on the Manchester Bridge on
January 6 when Smith's trailer was sideswiped by a
hit-and-run driver. Smith's uncontroverted account
of this accident disclosed no culpable negligence on
his part, and there is no evidence that the Respon-
dent ever regarded him as at fault for this mishap.
Thus, at the most, 'Smith's driving record discloses
only one accident for which he was partly at fault.
(c) Except for 'the traffic infraction connected
with Smith's October 1966 accident (for which the
fine was'$25"arid costs), Smith was involved in only
two other traffic infractions; one, an arrest for
speeding on April 26, 1966, and the other on
December 26, 1966, for "unsafe operation" when
he pulled out of line to pass a slow moving vehi-
cle.The fine for the latter infraction was $50 and
costs. The Respondent admittedly never 'censored,
admonished, warned, or disciplined Smith either
because of his accidents or traffic violations, and it
continued to employ Smith after all of the these in-
cidents-without any comment or any discussion of
his driving record.
(d) Concededly, many of the drivers still em-
ployed by Respondent have been involved both in
accidents30 and in arrests for traffic infractions, in-
cluding one, John Parks, whose driving license was
suspended for 15 days for speeding. In fact, accord-
ing to Brandt's admission, the only other lease can-
cellations prior to Smith's discharge on February 28
involved drivers who were terminated because they
caused "trouble," "would start a fight with
someone, or something like that."
(e) Finally, the assertion that Smith was, or
might have been, terminated and/or refused reem-
ployment because of his poor driving record was
raised by the Respondent for the first time at the
hearing in this case. Smith was never told that this
was either the reason for the cancellation of his
lease, or for the refusal to further employ him.
Moreover, this asserted ground was not mentioned
in the March 10 letter of Respondent's counsel to
the region which purported to set forth why Smith's
lease had been canceled and why he would not be
reemployed.
For all the foregoing reasons, I am persuaded
beyond any doubt that this alleged ground for the
cancellation of Smith's lease and/or for the refusal
to employ him further is purely another af-
terthought and pretext by Respondent to conceal
the real reason for its conduct in regard to Smith.
F. Concluding Findings
The complaint herein alleges that Smith's em-
ployment was terminated because he testified on
behalf of the General Counsel in the prior unfair
labor practice case against Respondent, and he was
refused reinstatement or reemployment because he
filed the charge in the instant case. The Respondent
denies that these were the motivations for its con-
duct and it contends, quite correctly, that the bur-
den of proving the illegal motivation of the Respon-
dent is on the General Counsel. However, the ful-
fillment of that burden does not, as the Respon-
dent's brief suggests, require direct evidence of the
Respondent's motive. As the Court of Appeals for
the Ninth Circuit said in a comparatively recent
decision:31
Actual motive, a state of mind, being the
question,-it is seldom that direct evidence will
be available that is not also self-serving. In
such cases, the self-serving declaration is not
conclusive; the trier of fact may infer motive
from the total circumstances proved. Other-
wise no person accused- of unlawful motive
'u Quite lsigmficantly, when the Respondent's counsel was asked by the
General Counsel to stipulate regarding the accidents of other drivers still
employed by the Company, he stated-
I would object to it as being entirely irrelevant and immaterial I
can't Fee any `relevancy between other accidents and the fact that Mr
Smith was Let go because he didn't have any equipment to operate
[Emphasis added ]
The inference from this statement , that all other grounds presently as-
serted for Smith's termination are afterthoughts , is quite compelling
31 Shattuck Denn Mining Corporation v N L R B , 362 F 2d 466, 470
(C.A 9) -
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who took the stand and testified to a lawful
motive could be brought to book. Nor is the
trier of fact-here the trial examiner-required
to be any more naif than is a judge. If he finds
that the stated motive for a discharge is false, he
certainly can infer that there is another motive.
More than that, he can infer that the motive is
one that the employer desires to conceal-an un-
lawful motive-at least where, as in this case,
the surrounding facts tend to reinforce that in-
ference. [Emphasis supplied.]
The court's decision is singularly applicable to
the facts in this case. Smith was employed twice by
the Respondent for a total period of about 4 years.
During this employment, he and many of the
Respondent's other drivers suffered occasional
breakdowns which rendered their equipment in-
operable for various periods of time lasting for as
long as 5 to 6 weeks, were involved in accidents,
and were guilty of traffic infractions. On one occa-
sion, Smith's equipment was repossessed for arrears
in meeting payments, and on February 13, he was
arrested for issuing two checks with insufficient
funds. Obviously the Respondent lawfully could
have canceled the leases and terminated the em-
ployment of Smith and of the other owner-drivers
for any or all of these incidents. But, the significant
fact is that it did not, and that it not only condoned
and tolerated these "breaches" of its standard
lease, but that it also assisted its owner-drivers
financially when they encountered trouble with
their equipment, payments, and the traffic police.
Smith's arrest on February 13 produced no warning
or censure from the Respondent, because as Brandt
admitted, he regarded it as "none of my business."
Thus, it is fairly apparent that until Smith testified
at the Board hearing in the earlier case, the
Respondent quite apparently was not overly con-
cerned with either his driving record or even his
last arrest for it continued his employment without
comment or warning.
After Smith testified, the Respondent's attitude
towards him changed completely. Thus, when
Smith's truck broke down and was repossessed on
February 21, the Respondent, contrary to its usual
policy of assisting employees financially, seized on
this occurrence to deduct $134 from his pay for a
loss apparently covered by its cargo loss insurance,
and for, which it had filed a claim with the in-
surance carrier. This, of course, made it even more
difficult for Smith to meet, if indeed, he could, the
arrears due on _his tractor. And then, 1 week,later,
although Smith had not in the interim been asked
to take out a load, the Respondent canceled his
lease and terminated his-employment under cir-
cumstances which disclosed deep rooted hostility
towards him. The stated single reason for Respon-
Z Shattuck Denn Mining Corporation v. N L R.B., supra.
As previously noted, at the prior-hearing Smith testified, inter alia, that
the Respondent required its drivers to "gateway" through the Pittsburgh
commercial zone on pickups from certain locations , even when that was
dent's action was that Smith had no equipment
available. That reason had never before caused the
Respondent to cancel a lease or to terminate the
employment of any of its owner-drivers.
The question then resolves itself to this: why did
the Respondent take this action against Smith
which was contrary to its past practice in like situa-
tions, and why did it bear and display this sudden
and unexplained animus towards Smith, if his only
failing, as stated by Brandt, was his lack of available
equipment? The answer to this query is fairly ap-
parent from the record. So far as the record herein
discloses, there was no animosity between young
Brandt and Smith before the latter testified at the
previous Board hearing. The only intervening event
between Smith's testimony and his discharge was
the breakdown of his equipment and its concurrent
repossession. Obviously, that event could not have
motivated the hostility towards Smith which Brandt
displayed when he terminated Smith, and told him,
"You will never work here again." Thus, the only
possible reason for Brandt's display of spleen
towards Smith at his termination must have been
Smith's testimony before the Board, and I so find. I
am further persuaded that this was the motivation
for Smith's termination by the many incredible and
obviously pretextual reasons asserted therefor, in-
cluding that which was told Smith when he was
discharged, and those which the Respondent, quite
apparent as afterthoughts, has since dredged up.32
In reaching the above conclusion, I have,given
serious consideration to the 'Respondent's conten-
tion that since Smith was only one of many drivers
who allegedly gave "accumulative" testimony for
the General Counsel, no valid reason exists why the
Respondent would have selected him for reprisal.
The fallacy with this contention is that Smith's
testimony, as previously noted, was materially dif-
ferent, and that his conduct during the previous
Board hearing likely could have aroused the
Respondent's hostility toward him.33 Accordingly,
since Respondent's contention is not supported by
the-record in the earlier case, it is rejected,
I therefore find and conclude that the Respon-
dent, by terminating the employment of Smith
because of his prior testimony under the Act, en-
gaged in unfair labor practices within the meaning
of Section 8(a)(4), (3), and (1) of the Act.
Moreover, even assuming, contrary to - the
Board's conclusion in the prior case, that Smith was
an "independent contractor," and not an employee
within the meaning of the Act, I would nevertheless
find that his termination for testifying at`the;prior
Board hearing violated Section 8(a)(1) of the Act,
because the net effect of this action tended to cause
statutory employees in the Respondent's operation
not the shortest route to the delivery point. In this connection Smith had
removed a map (which disclosed this, directive) from the Respondent's
bunk room, had it duplicated, and the copy was introduced, into evidence.
STEEL CITY TRANSPORT, INC.
to fear similar reprisals if they testified against
Respondent in a Board proceeding.'
There remains for consideration only the allega-
tion that the Respondent on and after March 2
refused reemployment to Smith because he filed
the charge in this case. The record in respect to this
allegation is undisputed. As previously described,
on March 2, after Smith purchased a new (used)
tractor to replace his repossessed one, he visited
the Respondent's terminal, was ordered off the
premises by young Brandt, and then was told by
General Manager Husk and Operations Manager
Carroll, to both of whom Smith made known his
desire to resume work, that he could not be reem-
ployed until this thing (the charge) was settled, and
that the matter was out of their hands. Thus, the
record clearly discloses, and I find, that Smith also
was refused reemployment because he filed the
charge in this case and that the Respondent thereby
further engaged in unfair labor practices within the
meaning of Section 8(a)(4), (3), and (1) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with the
Respondent's operations described in section 1,
above, have a close, intimate, and substantial rela-
tionship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes
burdening and obstructing commerce and the.free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, I will recommend
that it cease and desist therefrom and take certain
affirmative action designed to effectuate the poli-
cies of the Act.
Having further found that the Respondent dis-
criminated against Donald B. Smith by terminating
his employment and thereafter refusing to reinstate
him because he gave testimony under the Act and
filed the unfair labor practice charge in this case, I
will recommend that the Respondent be ordered to
offer him immediate reinstatement to his former or
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 by reason of the discrimination by the
payment to him of a sum of money equal to the
amount he normally would have earned as net
wages (after deducting the cost of operating his
truck) from the date of his termination to the date
of his reinstatement, less his net earnings during
ai Cf N.L.R.B. v Lease & McVitty , Incorporated, 384 F.2d 165 (C.A. 4)
F W. Woolworth Company, 90 NLRB 289 , backpay shall include the
33
said period, with backpay computed on a quarterly
basis in the manner established by the Board.35
I will also recommend that the Respondent
preserve and, upon request, make available to the
Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze and determine
the amount of backpay due under the terms of this
recommended remedy.
Upon the basis of the foregoing findings of fact
and upon the entire record in the case, I make the
following:
CONCLUSIONS OF LAW
1. Steel City Transport, Inc., is an employer en-
gaged in commerce and in operations affecting
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. General Teamsters, Chauffeurs and Helpers
Local 249, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
3. Donald B. Smith is an employee within the
meaning of Section 2(3) of the Act.
4. By discriminating against Donald B. Smith
and by terminating his employment and refusing to
reinstate him because he gave testimony under the
Act and filed the charge in this case, the Respon-
dent has engaged and is engaging in unfair labor
practices within the meaning of Section 8(a)(3),
(4), and (1) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law and the entire record in this
case, I recommend that the Respondent Steel City
Transport, Inc., its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in and activities
on behalf of General Teamsters, Chauffeurs and
Helpers Local 249, affiliated with International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any
other labor organization of its employees, by
discharging or refusing to reinstate any employees,
or in any other manner discriminating in regard to
hire or tenure of employment or any term or condi-
tion of employment.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
payment of interest at the rate of 6 percent per annum to be computed in
the manner set foith in Isis Plumbing & Heating Co , 138 NLRB 716
350-999 0 - 71 - 4
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ercise of their right, to self-organization, to form
labor organizations, to join or assist General Team-
sters, Chauffeurs and Helpers Local 249, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, or any other labor organization, to bargain col-
lectively through representatives of their own
choosing, and to engage in other concerted activi-
ties for the purpose of collective-bargaining or
other mutual aid or protection, or to refrain from
engaging in such activities, except to the extent that
such rights may be affected by an agreement
requiring membership in a labor organization as a
condition of employment, as authorized by Section
8(a)(3) of the Act.
2. Take the following affirmative action to effec-
tuate the policies of the Act:
(a) Offer Donald B. Smith immediate and full
reinstatement to his former or substantially
equivalent position, without prejudice to -his
seniority or other rights and privileges previously
enjoyed, and make him whole for any loss of pay he
may have suffered as a result of the discrimination
against him-in the manner provided in the section
of this, Decision 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 other records necessary to analyze the
amount of backpay due under the terms of this
Recommended Order.
(c) Notify Donald B. Smith if presently serving
in the Armed Forces of the United States of his
right to full reinstatement upon application in ac-
cordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(d) Post at its terminal in Pittsburgh, Pennsyl-
vania, copies of the attached notice marked "Ap-
pendix. "3 Copies of said notice, on forms provided
by the Regional Director for Region 6, after being
duly signed by Respondent's representative, shall
be posted by it immediately upon receipt thereof,
and be maintained by employees for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of the receipt
of this Decision and Recommended Order, what
steps it has taken to comply herewith."
zs In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
37 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read. "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith."