Bird Trucking and Cartage Co., Inc.

National Labor Relations Board - Board Decisions

Sep 28, 1967

167 N.L.R.B. 626 (N.L.R.B. 1967)

626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bird Trucking and Cartage Co., Inc. and Conrad
Bierl. Case 7-CA-5814
September 28, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On July 10, 1967, Trial Examiner George Turitz
issued his Decision in the above-entitled proceed-
ing, finding that the Respondent had engaged in and
was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the Respondent filed exceptions to the Trial Ex-
aminer's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, the National Labor
Relations Board has delegated its powers in con-
nection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
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 and hereby or-
ders that the Respondent, Bird Trucking and
Cartage Co., Inc., Detroit, Michigan, its officers,
agents, successors, and assigns, shall take the ac-
tion set forth in the Trial Examiner's Recom-
mended Order.
TRIAL EXAMINER'S DECISION
GEORGE TURITZ, Trial Examiner: On a charge filed by
Conrad Bierl, herein called Bierl, and, at times, the
Charging Party, and served on December 19, 1966, upon
Bird Trucking & Cartage Co., Inc., herein called Re-
spondent, the General Counsel of the National Labor
Relations Board, herein called the Board, through the Re-
gional Director for Region 7, on March 15, 1967, issued
a complaint and notice of hearing against Respondent.
Respondent filed its answer in which it denied all allega-
tions of unfair labor practices and pleaded matter by way
of affirmative defense. A hearing on the complaint was
held on May I and 18, 1967, at Detroit, Michigan. The
General Counsel and Respondent were represented by
counsel at the hearing, and the Charging Party by himself.
At the conclusion of the hearing counsel for the General
Counsel and for Respondent argued orally.
Upon the entire record and from my observation of the
witnesses I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Michigan corporation having its prin-
cipal office and place of business in Detroit, Michigan,
where it is engaged in the business of trucking and
cartage. In the course and conduct of its business opera-
tions Respondent annually performs services valued at in
excess of $600,000, of which services valued at in excess
of $150,000 are performed on behalf of various firms,
each of which annually sells and ships goods valued at in
excess of $50,000 from its installations located in
Michigan directly to its customers located outside the
State of Michigan.
Respondent admits, and it is found, that it is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the National Labor Relations
Act, as amended, herein called the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 299, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The basic issue in this case is whether Respondent
ceased giving work to Bierl on and after July 20, 1966,
because of lack of work and union rules as to obtaining
employees, or because Bierl took steps to enforce what
he conceived to be his rights under the collective agree-
ment.
Bierl had been engaged in the trucking industry in vari-
ous capacities for many years. For about 15 years before
taking employment with Respondent he was an owner-
operator and broker. He started to work for Respondent
in August 1964 and worked every day from that time until
July 18, 1966, except for 2 weeks in October and
November 1964, when he was unavailable because of
alimony problems, and for 5, mostly scattered, days in
January, February, and March 1965.1 Bierl was sent out
on jobs every time he reported except for one or two oc-
casions when he went home of his own accord because,
contrary to Respondent's usual practice, newer em-
ployees were sent out ahead of him. He testified without
contradiction that on those occasions Respondent's
dispatcher criticized him for having gone home. During
the period from April 27 to July 18, 1966, which included
58 working days, Bierl worked a total of 51 1-3/4 hours,
of which 91-3/4 were overtime hours and 420, or an
average of about 7-1/4 hours per day, were regular hours.
In each of those weeks he worked some overtime hours
and at least 31 regular hours. Overtime consisted of hours
in excess of 8 in any one day or in excess of 40 in any one
week. Bierl worked somewhat less than the employees on
Respondent's seniority list. He was assigned tractor No.
' Bierl testified that he took some vacation during the period of his em-
ployment with Respondent , but this was not borne out by G C Exh 14,
which was prepared by Respondent and purports to show, among other
things, all Bierl's absences through May 31, 1966
167 NLRB No. 82
BIRD TRUCKING & CARTAGE CO. 627
20, which was considered his tractor and which he drove
every day for more than a year
Respondent was party to the 1964-1967 National
Master Freight Agreement and the Central States Area
Local Cartage Supplemental Agreement between Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, and various
subsidiary bodies of that organization and various em-
ployers' associations. That contract included the follow-
ing provisions:
Article 3 ... Section 1(c). When the Employer
needs additional men he shall give the Local Union
equal opportunity with all other sources to provide
suitable applicants, but the Employer shall not be
required to hire those referred by the Local Union.
Section 2. A new employee shall work under the
provisions of this Agreement but shall be employed
only on a thirty-day trial basis, during which period
he may be discharged without further recourse; pro-
vided, -however, that the Employer may not
discharge or discipline for the purpose of evading this
Agreement or discriminating against Union mem-
bers. After thirty days the employee shall be placed
on the regular seniority list
Any employee hired as a seasonal, casual, or part-
time worker shall not become a seniority employee
under these provisions where it has been agreed by
Employer and Union that he was hired for seasonal,
casual, or part-time work.... The word "casual or
part-time" as used herein is meant to cover situations
such as replacements for absenteeism and vacations.
Casual and part-time employees shall be given first
opportunity to qualify as regular employees and be
placed at the bottom of the seniority board if they
meet all qualifications required of new applicants for
regular employment and shall accumulate seniority
from the date of regular employment.
* * * * *
Article 57, Section 1. The standard guaranteed
work-week shall be forty (40) hours per week, and
the standard guaranteed work-day shall be six (6)
hours per day.
Ninety per cent (90%) of the regular employees
shall be guaranteed forty (40) hours work or pay. It
is agreed that the standard forty (40) hour work-week
need not apply to ten percent (10%) of the regular
employees with a minimum of one. (Seniority must
be recognized.) Probationary employees shall be
considered regular employees for the purpose of this
provision.
When casual employees are used three (3) or more
days or with regularity in any one week, they shall be
included on the seniority list for the purpose only of
determining what employees shall receive the weekly
guarantee. This shall not apply to casuals used to
replace absentees. The ninety-percent (90%) test
shall be applied to the highest number of employees
put to work in that week.
Notwithstanding the above provision that a new em-
ployee, after 30 days, should be placed on the regular
seniority list, Respondent did not place Bierl's name on
the roster of regular employees. Moreover Respondent
did make regular employees of men hired after Bierl.
Respondent sought to justify this by evidence that on
being hired Bierl was told by Respondent that he was to
be a casual employee, and by evidence that some regular
employees were absent whenever Bierl worked, thus al-
legedly indicating that he was a casual employee as
defined in the contract. The record does show that at least
one regular employee was absent on most days during
Bierl's employment, but not on September 9, 1964,
November 19, 1965, or March 24, 1966, on each of
which days Bierl worked, and that Respondent had casual
employees other than Bierl. The record also shows that
no union official agreed with Respondent that Bierl was
to do casual or part-time work.
Respondent customarily prepared a seniority list of its
regular employees which it furnished to the Union. As
Bierl's name was not on the list, his union dues were not
checked off and he paid his dues directly to the Union's
office.2 No payments were made on his behalf to the
Union's Health and Welfare Fund, and on June 17, 1965,
Bierl, who had attempted to enroll for the Fund, was so
advised. Bierl received no holiday or vacation pay as
required by the contract for regular employees. However,
uncontradicted evidence establishes that two admittedly
regular employees - Hughes and Angel -did not receive
such pay either, although presumably qualifying under
the contract at least for some holiday pay.
Cicchetti, the shop steward, testified that the contract
required that an employee be placed on the regular roster
after 30 days, if he was not a replacement; but he added:
Like I said a company is a company, it worries
only about themselves. They will do with casual as
long as possible.... It is the company's duty if the
man has been working there thirty days they should,
there is a regulation that they have to put him on the
payroll, if he is not replacing.
From time to time Cicchetti told Bierl that he should go
down to the Union and get himself placed on the regular
roster. Bierl said he would but in fact never did. He told
Cicchetti he was satisfied with what he was earning.
Respondent rented tractors with drivers to a firm,
referred to in the record as McKinley, which hauled
freight across the river between Detroit and Windsor,
Canada. Respondent's business with McKinley was
strictly on a day-to-day basis; each day McKinley in-
formed Respondent of its needs for the following day.
Respondent's drivers reported first to Respondent, not
knowing, for the most part, who would be sent where, or
when they would be sent. During the 4 or 5 months prior
to his termination Bierl worked for Respondent exclu-
sively at McKinley's. About April or May 1966 Respond-
ent was required to obtain Canadian registration plates
for a number of its vehicles being used on the McKinley
work. Respondent did not get Canadian plates for Bierl's
tractor, but got them for another instead, which Bierl was
then assigned to. Bierl objected and complained to Shop
Steward Cicchetti. Cicchetti agreed with Bierl that he had
been treated shabbily but said that Respondent had full
discretion in the assignment of equipment. Bierl, angry,
told Cicchetti, "... I'll fix those guys good, if they want
2 G C Exh 3 shows that on three occasions in July and August 1965
Respondent 's payroll clerks deducted union dues from Bierl's wages On
protest by Bierl against paying dues twice , this practice was stopped
310-5410-70-41
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to do that I will file for everything that I've got coming."
On May 14, 1966, Bierl filed a formal written
grievance demanding the following:
Full Seniority Rights on Roster at Bird Trucking
Co., to my seniority from date I hired in on August
11, 1964. Am now on Roster as of May, 1966.
I request back Holiday pay due me for the year
1965 according to contract and I request vacation
pay due as at no time was accummulated vacation
time paid to me.
Full recognition as a member of Local #299
Teamsters Union, as a paid-up member of Local
#299, I request the full insurance coverage due that
has been denied because of my inability to be placed
on Roster at Bird Trucking Co.
When Bierl, some time later, inquired at the union office
about his grievance, he was gtlestioned and the union offi-
cials became apprised of certain work assignment and hir-
ing practices of Respondent. Cicchetti was summoned
and was severely reprimanded for having permitted
Respondent to hire additional employees without first at-
tempting to get them through the Union. Cicchetti, as
well as two business agents of the Union, brought this to
Respondent's attention, and they ordered Renew,
Respondent's vice president , in charge of labor relations,
specifically, among other things, not to have men sit
round in the drivers' room waiting for assignments unless
they were to go out at definitely scheduled times. Until
then all employees, including "regulars," reported for
work and waited, often 1 or 2 hours, until dispatched.
Cicchetti also ordered Respondent not to hire men "off
the street" any more.
The record is not clear as to the precise date that the in-
structions were given to Respondent. Cicchetti testified
at one point that the union officials' reprimand to him
took place "a short time before" Bierl left Respondent's
employ; at another point that his instruction to Respond-
ent to call the Union for drivers was "way before" the
July 19 grievance meeting at the Fort Shelby Hotel,
referred to below. Renew testified that he received the in-
structions within 2 or 3 days before Bierl left.
Bierl's grievance came on for hearing at a meeting of
the Michigan Joint State Cartage and Over-the-Road Ar-
bitration Committee held on Tuesday, July 19, 1966, at
the Pick-Fort Shelby Hotel in Detroit. Bierl, who had
worked regularly through July 18, and Renew were
present at the meeting. The Arbitration Committee
deadlocked.
The next morning Bierl reported for work about 7:45,
his usual time, but was told by Respondent's dispatcher,
Szwed, that he could not work until he had seen Renew.
Bierl went home and returned the next morning about 9
o'clock to see Renew. Renew told him that he did not
have any work for him and ordered him to leave the pro-
perty since he was trespassing. Renew testified that he
said: "Bierl, there's no more work, you have to get off the
company property, because the union is hollering and
screaming about you waiting around to see if you get any
work. You gotta go to the hall." In his pretrial affidavit
Renew discussed the union representatives' instructions
and his July 21 conversation with Bierl but made no men-
tion of the union hiring hall in either connection. Bierl
complained that same day to MacMaster, a union official,
who promptly summoned Renew to the union office and
said that Bierl had accused Renew of threatening him
with jail if he did not leave the property. Renew denied
the jail threat but admitted asking Bierl to leave the pro-
perty . He testified that he explained to MacMaster that
he had instructions from the Union not to permit any
drivers to loiter on the property. The record does not
show what , if anything , MacMaster said in reply. Bierl
testified that he never returned to Respondent to see if
there was work for him because , he said , " I was to stay
away from there as a trespasser."
That day or shortly thereafter MacMaster held a con-
ference with Renew , Bierl, and Cicchetti in which he at-
tempted to reach an adjustment of the dispute. Mac-
Master proposed to Renew , "Well, why don't you give
your man some kind of a pay to compensate him while he
looks for a job elsewhere ?" Renew made a financial offer.
In his pretrial affidavit Renew stated , " It was understood
that for the settlement Bierl would drop the grievance and
continue in his status of casual employee ." At the hear-
ing, however , he testified that that statement was not ac-
curate . Bierl never accepted Renew 's offer and elected to
pursue his grievance. The grievance was transferred to a
higher level in Chicago but was remanded to Detroit for
rehearing upon discovery by Respondent of new
evidence to the effect that Bierl had falsified his age when
he applied to Respondent for work. In August or Sep-
tember 1966 , on the rehearing, Bierl's grievance was de-
nied.
Renew testified that he "personally" laid Bierl off on
July 21 for lack of work but that he told Bierl that he was
going to continue to use him if business picked up and he
had work . Renew also testified that subsequently he did
not recall Bierl but hired new employees instead because
Bierl refused to drive any equipment except a tractor-
trailer, whereas those he hired were ready to drive any
kind of equipment. He said that when , some weeks after
Bierl's last day of work , he learned that Bierl had falsified
his age when filing his application for the job and was in
fact 65 years old, he determined never to use Bierl's ser-
vices again . On several occasions he said he "discharged"
Bierl on making that discovery ; however Respondent did
not claim that anything was done to accomplish a
discharge other than Renew 's alleged thinking to that ef-
fect. Respondent conceded that it had no rule or policy
against having drivers over 65 years of age , and its coun-
sel stated that it would be in violation of the contract if it
terminated a driver for that reason . Renew testified, in
response to a leading question , that the McKinley busi-
ness "started tapering off ' during the period when
Respondent refused assignments to Bierl , volunteering
that the specific time was about July 22, the date of
Bierl's final check . He also testified that the business sub-
sequently picked up but ultimately ceased altogether.
Respondent continued to rent tractors with drivers to
McKinley after July 18, but different men were sent each
day to do the work Bierl had been doing. Respondent's
work at McKinley did diminish to some extent , so that at
times the men there worked less than full days. However,
two or more men were sent there daily through at least
September 7, 1966, and at the end of September Bird was
sending two or three employees there every day to work
full days.
Respondent hired 119 "casual " employees between
May I and December 31, 1966. Of these 78 were hired
subsequent to July 18 , Bierl's last workday with Respond-
ent, including 3 between July 19 and 31 , 14 in August,
18 in September , 22 in October , 1 1 in November, and 10
in December . In his affidavit Renew stated , " In the few
weeks following the last day Bierl worked no new drivers
were hired ." In fact Respondent hired 12 casual em-
ployees between July 19 and August 11. The record does
BIRD TRUCKING & CARTAGE CO. 629
not show how long each of the 78 employees referred to
worked except to the extent that in general there was con-
siderable turnover among them. Respondent also had
other "casual" employees who had been hired prior to
May 1. Respondent placed one employee on the regular
payroll in May 1966 and six others in October 1966
Concluding Findings
Respondent has pleaded the Arbitration Committee's
denial of Bierl's grievance as a defense. This defense has
no merit as the grievance was in no way based upon the
acts of Respondent which are alleged in the complaint.'
Respondent contends that it laid Bierl off because of
lack of work. The temporary "tapering off' of work at
McKinley, which Renew testified, with vagueness,
started on July 22, was irrelevant to Respondent's refusal
to send Bierl out on July 20. The McKinley work was
strictly on a day-to-day basis. Respondent did not know
on July 20, or even on the morning of July 21, that the
McKinley work would begin to lessen on July 22, even
assuming that that was the date of the inception of the
slackening. Moreover, notwithstanding the "tapering
off," it is clear that the work Bierl had been doing every
day for 4 or 5 months continued long after July 20.
Although at some point, for a short time, there was some
reduction in the number of hours worked at McKinley,
two or more men were sent there each day, including
casuals who had never worked for Respondent before.
Plainly there was work for Bierl. Renew also testified that
Respondent's business in general fell off, requiring the
transfer of other employees to the McKinley job, but he
failed to substantiate this bare claim with any specific
evidence. The record is devoid of evidence that Re-
spondent used fewer employees on July 20 and 21 and
thereafter than it did on July 18 and previously.
Moreover, such general falling off, even if proved, could
not explain the use of new casual employees instead of
Bierl. No evidence was adduced to establish that Bierl's
refusal to drive trucks other than tractor-trailers made
him so much less useful to Respondent on and after July
20 than he had been during the 2 previous years of his em-
ployment as to persuade Respondent to replace him. It is
found that Respondent has failed to establish that it had
less work to assign on July 20 and thereafter than it had
previously had, has failed to establish that it used fewer
employees, and has failed to establish that it had no need
for Bierl's services.
Respondent also contends that the Union forbade it to
assign work to casual employees, including Bierl, except
through the union hiring hall. It is unnecessary to deter-
mine whether Bier] was entitled under the contract to
"regular status;" he knew that Respondent considered
him not regular and he acquiesced in the lower status.
However, that fact is not material. While not technically
a "regular employee," Bierl was regularly employed - so
regularly that Respondent's payroll personnel began to
deduct union dues from his wages as though he were on
the seniority list. The contract specified no procedure for
obtaining "casual" employees in particular. The contrac-
tual provision as to hiring refers only to "additional men,"
and "casuals" like Bierl were "additional" only when first
hired. The contract plainly contemplated that some
casuals would work more than single days and even for
extended periods. There was no requirement in the con-
tract, or in practice, that they come day by day through
the union hiring hall, and I do not credit Renew's
testimony that the union officials or Cicchetti gave him
orders to that effect. The credible testimony establishes
that what Cicchetti and the Union objected to was not
Respondent's assigning Bierl work day after day but its
practice, first, of permitting men who had no assurance of
work to sit round in the drivers' room to see what, if
anything, might turn up, and, second, of requiring Bierl
and the regular employee to come in and wait for their as-
signments without scheduling definite times for them to
report. Bierl did have assurance of work and never had to
wait round to see if he could get work-there was work
for him every time he reported, without exception. As to
when he would go out, he was in exactly the same status
as the regular employees - many of them had no definitely
scheduled time fixed. In fact, Bierl did for the most part
have a de facto scheduled time - he usually went out with
the 8 o'clock crew
It is found that the union officials and Cicchetti did not
object to Respondent's assigning work to Bierl on July 20
or 21 without calling the hiring hall, and that they did not
require that he apply for work on those days or in the fu-
ture through the hiring hall. It is further found that Renew
did not think that those persons made such objection or
imposed such requirement.
Renew's unfriendly remark to Bierl that he was
trespassing, with its implied threat of possible police ac-
tion, establishes that he was angry at Bierl, and with good
reason. No more would he be able to offer his customers
a labor supply ready to be dispatched with little or no
notice. Moreover, the Arbitration Committee's deadlock
established that the grievance had enough substance to
give Respondent cause to worry that he might not be able
to continue carrying long-time employees as "casuals"
and thus avoid paying for their holidays, vacations, health
and welfare insurance, and pensions. The deadlock oc-
curred on July 19; and it was within 2 or 3 days before
Bierl's layoff on July 21, i.e., on July 18 or, more
probably, July 19, that Respondent was ordered to
change its procedures. Respondent's initial action against
Bierl followed on July 20. While Bierl had not intended to
compel the change in procedures, Respondent would
have been able to continue the old procedures indefinitely
but for Bierl 's rocking the boat by filing the grievance.
The timing of Respondent's refusal to assign work to
Bierl immediately following the grievance deadlock and
the orders for the new procedures which grew out of his
grievance, Renew's anger, and his attempt at the hearing
to ascribe Respondent's actions to reasons not based on
fact, compel the inference that Respondent took the ac-
tion which it did in retaliation for Bierl's filing the
grievance
Respondent adduced evidence tending to prove that
Bier] would not have filed the grievance but for his pique
over being deprived of tractor No. 20. There can be no
question but that the grievance was a bona fide effort to
obtain benefits under the collective contract. The fact
that Bierl might have been ready to forego those benefits
so long as he had the satisfaction of driving a tractor he
liked would not remove him from the Act's protection
against discrimination when loss of that satisfaction made
him decide no longer to forego the benefits to which he
thought himself entitled under the contract. The evidence
referred to is therefore immaterial.
Renew testified that on July 20 and 21 he merely "laid
off" Bierl, informing him that he intended to use him
' Distinguish Spielberg Manufacturing Company, 112 NLRB 1080
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when business picked up, but that he had to apply through
the hiring hall. This testimony is not credited. It is con-
tradicted by Renew's affidavit and the established facts
as to the Union's instructions. Moreover, if Renew had
intended to use Bierl in the future, his handling of Bierl on
July 20 and 21 would have been different. An employer
discussing future employment arrangements with
someone he intends to retain as an employee has no need
to greet him by ordering him off his property as a
trespasser 4 The conclusion that Bierl was definitely ter-
minated on July 21 is further supported by MacMaster's
suggestion to Renew, the plain implications of which
were not contradicted by Renew, "Well why don't you
give your man some kind of a pay to compensate him
while he looks for ajob elsewhere?"
It is found that Respondent failed to assign work to
Bierl on July 20 and 21, 1966, and thereafter, terminated
his employment on July 21, 1966, and thereafter failed
and refused to reinstate him, because he filed a grievance
under the collective contract. It is further found that by
such action Respondent violated Section 8(a)(1) and (3)
of the Act.5
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations
described in section I, above, have a close, intimate, and
substantial relationship 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
As it has been found that Respondent has engaged in
certain unfair labor practices, it will be recommended that
the Board issue the Recommended Order set forth below
requiring Respondent to cease and desist from said unfair
labor practices and to take certain affirmative action
which I find will effectuate the policies of the Act.
Respondent has established that some months after
Bierl's termination it learned that he was not 57 years of
age, as indicated by his employment application, but 65.
It claims to have decided at that time, because of the fal-
sification, never to use Bierl's services again, thereby
discharging him. While I have not credited Renew's
testimony that a decision to "discharge" Bierl was made
at that time, the question does arise of whether the
misrepresentation affects Bierl's right of reinstatement.
Renew's testimony and Respondent's answer seem to
imply the claim that a man of 65 is too old to drive a trac-
tor-trailer and that insurance covering him would not be
available. However, no evidence to that effect was ad-
duced. Respondent did not, and under the contract could
not, have any policy against having drivers of 65 or more
in its employ. The undisputed evidence is that Bierl's ser-
vices were considered by Respondent to be satisfactory.
Whether or not Respondent would have hired him in the
first place had it known his true age, it definitely would
4 Parenthetically it is noted that even if Renew had added that Bierl had
to apply for work in the future through the hiring hall, his statement would
be interpreted by any employee as a discharge Moreover, until July 21
Bierl had an employment status that did not require application through
the hiring hall for further employment For discriminatory reasons
Respondent terminated that employment relationship on July 21
not have terminated him for that reason alone. His alleged
disqualification for employment, therefore, must rest
upon the bare fact of falsification. Bierl 's misrepresenta-
tion of his age was not so heinous an offense as to make
him unfit for employment and thus excuse Respondent
from effectively remedying its unfair labor practice. It is
therefore recommended that Respondent reinstate Bierl
to his former or a substantially equivalent position.
While Bierl's former position has been found to have
been that of a nonregular employee without seniority
status under the contract, the record establishes that
Respondent did give consideration to his actual seniority.
The reinstatement shall, therefore, be without prejudice
to his seniority and other rights and privileges. Further-
more, the Recommended Order of reinstatement shall not
be deemed to limit any right Bierl might have under the
contract to obtain reclassification to the status of regular
employee.
It is also recommended that Respondent make Bierl
whole for any loss of earnings suffered by reason of the
discrimination against him by payment to him of a sum of
money equal to what he would have earned from the date
of the inception of the discrimination against him on July
20, 1966, to the date of Respondent's offer of reinstate-
ment, less his net earnings during said period. The loss of
earnings shall be computed in accordance with the formu-
la stated in F. W. Woolworth Company,', with interest
thereon at the rate of 6 percent per annum, to be com-
puted in the manner prescribed in Isis Plumbing & Heat-
ing Co.7
It :s recommended also that Respondent preserve and
make available to the Board, upon request, payroll and
other records to facilitate the computation of backpay.
Upon the basis of the foregoing facts and of the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent, Bird Trucking and Cartage Co., Inc.,
is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Respondent is, and at all times matenal has been, an
employer within the meaning of Section 2(2) of the Act.
3. Local 299, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, is a labor organization within the meaning of Section
2(5) of the Act.
4. By discriminatorily refusing to assign work to Con-
rad Bierl on July 20 and 21, 1966, and thereafter, and by
discriminatorily terminating his employment on July 21,
1966, and by thereafter failing and refusing to reinstate
him, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(3) and
(1) of the Act.
5. By interfenng with, restraining, and coercing em-
ployees in the exercise of rights guaranteed in Section 7
of the Act, Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act.
6. The unfair labor practices described above are un-
fair labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
' Farmers Union Cooperative Marketing Assn , 145 N LRB 1, see also
Rotax Metals, Inc, 163 N LRB 72, and -A S Hubbs, dlbla A S Hubbs
Contracting, 163 NLRB 292
90 N LRB 289
138 N LRB 716
BIRD TRUCKING & CARTAGE CO. 631
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this
case, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, Respondent , Bird Trucking
and Cartage Co., Inc., its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Local 299, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other
labor organization, by refusing to assign work to em-
ployees or by terminating their employment because they
file grievances with, or under the contract of, such labor
organization.
(b) In any like or related manner, discriminating
against employees in regard to their hire or tenure of em-
ployment or any term or condition of employment, or in-
terfering with, restraining, or coercing employees in the
exercise of their right to self-organization, to bargain col-
lectively through representatives of their own choosing,
or to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except to the
extent that such right might be affected by an agreement
requiring membership in a labor organization as a condi-
tion of employment as authorized in Section 8(a)(3) of the
Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer Conrad Bierl immediate and full reinstate-
ment to his former or a substantially equivalent position
without prejudice to his seniority and other rights and
privileges.
(b) Make Conrad Bierl whole for any loss of earnings
he may have suffered as a result of the discrimination
against him in the manner described above in section V of
this Decision, entitled "The Remedy."
(c) Notify Conrad Bierl , 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.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all work
records, social security payment records, timecards, per-
sonnel records and reports, sales records, and all other
data necessary to analyze and compute the backpay
required by this Order.
(e) Post at its office and place of business in Detroit,
Michigan, copies of the attached notice marked "Appen-
dix."" Copies of said notice, to be furnished by the Re-
gional Director for Region 7, after being duly signed by
Respondent's representative, shall be posted by Respond-
ent immediately upon receipt thereof, and be maintained
by it 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.
(f) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.9
8 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 "
8 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read. "Notify the Regional Directorfor
Region 7, in writing, within 10 days from the date of this Order , what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies cf the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT refuse to assign work to employees
or terminate their employment because they file
grievances with their bargaining representative.
WE WILL NOT in any like or related manner dis-
criminate against employees or interfere with,
restrain, or coerce them in the exercise of their right
to self-organization, to bargain collectively through
representatives of their own choosing, or to engage
in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except to
the extent that such rights might be affected by an
agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in
Section 8(a)(3) of the Act.
WE WILL offer Conrad Bierl immediate and full
reinstatement to his former or a substantially
equivalent position, without prejudice to seniority
and other rights and privileges previously enjoyed.
WE WILL make Conrad Bierl whole for any loss of
earnings he may have suffered as a result of the dis-
crimination against him.
WE WILL notify Conrad Bierl, 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 Training and Service Act, as amended, after
discharge from the Armed Forces.
BIRD TRUCKING &
CARTAGE CO., INC.
(Employer)
Dated By
(Representative) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board ' s Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan
48226, Telephone 226-3200.