Bowen Transports, Inc.

National Labor Relations Board - Board Decisions

Jul 21, 1970

184 N.L.R.B. 584 (N.L.R.B. 1970)

584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bowen Transports , Inc. and Harold E . Jones. Case
14-CA-5063
July 21, 1970
DECISION AND ORDER
By MEMBERS FANNING, MCCULLOCH, AND JENKINS
On January 13, 1970, Trial Examiner Benjamin
A. Theeman issued his Decision in the above-enti-
tled proceeding , finding that Respondent Bowen
Transports , Inc., 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
and the General Counsel filed exceptions to the
Trial Examiner 's Decision with supporting briefs.
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 , 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
orders that the Respondent , Bowen Transports,
Inc., Mattoon , Illinois, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Trial Examiner 's Recommended Order.'
' The requirement of sec 2 ( a) of the Order for the return of the an-
hydrous ammonia operation to the Mattoon terminal for haulage from that
terminal shall be subject to any contrary agreement that may hereafter be
reached as a result of collective bargaining between the Respondent and
the Union
port, Inc ., had engaged in and is engaging in unfair
labor practices affecting commerce within the
meaning of Section 8(a)(1) and (3 ) and Section
2(6) and (7 ) of the National Labor Relations Act,
as amended , 29 U.S .C. 151, et . seq. (the Act) by:
(a) threatening employees ( drivers of its trucks)
with loss of overtime if they chose Teamsters Local
#26, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of Amer-
ica (Union ) to represent them; (b) advising the
drivers that it would be futile for them to choose
the Union to represent them, and , after a contract
with the Union had been executed , advising the
drivers that it was futile to have selected the Union;
(c) threatening the drivers with ( i) discharge, (ii)
closing of the Mattoon terminal, or (iii ) the transfer
of the work of the Mattoon terminal to another ter-
minal because of their union activity or, if they filed
union grievances against the Respondent; (d)
discharging or laying off drivers because of their
union activities and refusing to reinstate them or
reimburse them for hours of lost work; and (e)
transferring work from the Mattoon terminal to
other terminals or to independent contractors
because of the union activities of the drivers, thus
causing the drivers to lose hours of work and refus-
ing to reimburse the drivers for such loss.
Respondent denies the commission of any unfair
labor practices , and contends ( a) "that such
changes ... in its methods of operations, the reas-
signment of equipment , the transfer of employees,
layoffs, loss of work , use of independent contrac-
tors and similarly alleged activities of Respondent
have all been dictated by the economics of the
situation and prudent management of the company
..."; and (b ) that the discharge of driver Jones
(the Charging Party ) resulted from his serious ill-
nesses and was recommended by a physician after a
medical examination.
Pursuant to due notice, a hearing was held before
me on July 29, 30, and 31, and August 1, 1969, in
Charleston , Illinois . All parties appeared and were
represented by counsel . They were given full op-
portunity to participate , adduce evidence, examine
and cross-examine witnesses, and argue orally.2 The
General Counsel and Respondent submitted briefs.
Upon the entire record in the case and from my
observation of the witnesses '3 I make the following:
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
BENJAMIN A. THEEMAN , Trial Examiner: The
complaint' alleges that Respondent Bowen Trans-
' The original complaint was issued on May 27, 1969, on a charge dated
April 9, 1969, filed by Harold E Jones, an individual
"Respondent 's motion to dismiss the complaint is granted in part and de-
nied in part in accord with the findings hereinafter made
3 The testimony of all witnesses has been considered In evaluating the
testimony of each witness , his demeanor was relied upon . In addition, in-
consistencies and conflicting evidence were considered The absence of a
statement of resolution of a conflict in specific testimony , or of an analysis
of such testimony, does not mean that such did not occur See Bishop &
Malco, Inc., d/b/a Walker's, 159 NLRB 1159, 1 161 Further , to the extent
that a witness is credited only in part, it is done upon the evidentiary rule
that it is not uncommon "to believe some and not all of a witness'
testimony " N.L R B. v. Universal Camera Corporation, 179 F.2d 749, 754
(C.A 2)
184 NLRB No. 59
BOWEN TRANSPORTS, INC. 585
FINDINGS OF FACT
I. BUSINESS OF RESPONDENT
Respondent, a Delaware corporation, maintains
its principal office and one of its terminals in Mat-
toon, Illinois . Respondent is a contract carrier in
motor truck transportation possessing intrastate
authority for the transportation of goods and com-
modities in Illinois. Respondent maintains other ter-
minals in Illinois , at Tuscola, Hillsboro, Lincoln,
and Chicago.
During the calendar year ending December 31,
1968, Respondent performed transportation ser-
vices valued in excess of $257,000 for U.S. Indus-
trial Chemical Company (U.S.I.). U.S.I. during the
calendar year ending December 31, 1968, manu-
factured, sold, and distributed at its Tuscola, Il-
linois, place of business products valued in excess
of $37,600,000 which were shipped to points out-
side Illinois . During the same period U.S.I.
purchased goods and materials from points outside
of Illinois which were shipped to points inside Il-
linois in an amount exceeding $16,400,000.
It is found that Respondent is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE UNION
Teamsters Local #26, International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Hel-
pers of America is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The issues of this proceeding are sufficiently set
forth in the statement of the case.
B. Background (Also the Mattoon Terminal Is
Operated Differently Than Other Terminals)
Respondent was incorporated in 1950 by H. G.
Bowen , its present president . Then Respondent
operated one terminal in Hillsboro from which glass
was hauled in truckloads . Shortly after , Respondent
moved its headquarters to Mattoon , to a newly con-
structed office and garage . Mattoon has been the
principal office of Respondent since . In the early
1950's no haulage was done out of Mattoon.
In 1960 Bowen sold Respondent to William Paul-
lin, who had previously been employed as Respon-
dent's manager. By then, the business had increased
by the addition of two terminals at Lincoln and
Tuscola.
The three terminals at Hillsboro, Lincoln, and
Tuscola were operated differently than the one at
Mattoon. At Hillsboro, Lincoln, and Tuscola the
drivers had regular year-round employment hauling
products that were nonseasonal. They operated
under a union contract that provided for a guaran-
teed wage. The products generally hauled were:
Hillsboro and Lincoln terminals, glass; and Tuscola,
where U.S.I. was located, chemicals. From 95 per-
cent to 98 percent of Respondent's haulage was
done at these three terminals.
By this time Mattoon had become a terminal
also. The products hauled were mainly seasonal:
road oil from about May through September; an-
hydrous ammonia, a fertilizer, 4 for a period of from
4 to 6 weeks in the early spring and possibly a few
weeks in the fall; propane and butane gas in the
later winter months;5 beer, a low revenue item, was
hauled on a weekly basis; and occasional emergen-
cy trips or "make work" trips to pick up trailers
from other areas to be brought back to Mattoon,
etc.' Mattoon drivers were used to fill in temporari-
ly at Respondent's other terminals when the work
there demanded additional men. This type of em-
ployment resulted in the Mattoon drivers having
peak riods of employment with long daily driving
times ,, interspersed with valley periods of little or
no driving time. As a result, the Mattoon terminal
was operated on the basis of "make it while you
can" during the season to make up for the slack
period to follow. During the season some made up
to $300 per week. During the off-season however
some of the drivers made as little as $50 per week."
Under the above circumstances, Respondent
found that the type of business done at Mattoon
made payment of a guaranteed wage uneconomi-
cal." Accordingly, Mattoon was not operated under
the union contract. Other than the guaranteed
wage, and some other items not pertinent here,
Respondent paid the Mattoon drivers in accord
with the terms of the current union contract effec-
tive at its other terminals.
About 1963, the Wage and Hour Division, of the
Department of Labor, inspected Mattoon. It noted
the absence of the union contract and informed
Respondent that without it, Respondent would have
to comply with the regulations requiring wage pay-
ment on an hourly basis. Respondent complied but
4 This was a US I product . Though produced at Tuscola it was
scheduled for haulage by Mattoon drivers.
' A pressurized trailer called "blimp" was used to haul the anhydrous,
propane , and butane.
' Another example of a "make work " trip was specified by Bowen , as fol-
lows.
Well, I pointed out that we occasionally made work for them I cited
as one example that we had a trailer rebuilt in St. Louis, it was a Hills-
boro trailer, and I had never used this outfit before, so I had the driver
go down and get it and bring it back to Mattoon The economical and
the logical thing from a cost standpoint would have been to have had a
Hillsboro driver go down and get it because they are only 50 miles
from St. Lotus, but I had him bring it into Mattoon and then I had him
take it to Hillsboro and deadhead back
' Testimony shows that during the season, some of the Mattoon drivers
worked as much as 20 hours a day , and around the clock also
' The guaranteed wage under the union contract in 1968 was $ 184 32 It
frequently occurred in other years that the drivers made 50 percent or less
of the guaranteed wage
' See sec D below for the explanation.
586 DECISIONS OF NATIONAL
nevertheless continued paying the men in accord
with the union contract . To accomplish this,
Respondent established two sets of books for Mat-
toon : one based upon the provisions of the union
contract (except for the guaranteed wage); the
other on the requirements of the Wage and Hour
Division.
The current union contract provided that the
drivers be paid on a miles-plus -hours basis; i.e., so
much per mile plus a stated amount per hour of
loading and unloading time . 10 The union contract
made no provision for overtime . Wage and Hours
required that Respondent pay the men on an hourly
basis ; i.e., 40 hours straight time plus overtime at
time-and-a-half where it occurred . The system
devised by Respondent in establishing its dual set of
books worked as follows : Using the weekly gross
wage paid the driver at the union rate the Respon-
dent derived an hourly base rate that would yield
the same gross amount computed on a straight time
and overtime basis ." Differences in pennies were
adjusted in favor of the men to the nearest quarter
hour . Every week the Respondent gave its Wage
and Hour computations to the drivers so that they
could fill out their timecards. Under this dual book-
keeping system the hours the drivers worked had
practically no direct relationship to the hours re-
ported for Wage and Hour purposes . Also, this dual
system created confusion among the men as to
whether they always received the correct pay and
created confusion about the payment of overtime.
Many times the drivers consulted the bookkeeper
for explanations of the weekly payment . Errors in
pay did occur but they were usually corrected the
following week or shortly thereafter.
Early in 1968 , Bowen bought the business back.12
In June 1968 he took over active management. The
business was conducted in about the same manner
as mentioned above . At this time , Respondent em-
ployed overall about 30 drivers and 5 administra-
tive personnel.
Bowen introduced economics in the operation of
the business , spent in excess of $300,000 to replace
obsolete equipment with modern tractors and
trailers , and commenced an active campaign to sol-
icit new business . 13 The haulage portion of the Mat-
toon terminal had always been run at a loss. The
new campaign attempted unsuccessfully to increase
the haulage business at Mattoon to cut down this
loss.
In June 1968, when Bowen took over active
management, there were eight drivers operating out
of Mattoon . In order of seniority they were Jack
10 At the time of the hearing the union rate was 11 cents per mile plus an
allowance per trip of 1-1/2 hours for loading and unloading at $3 84 per
hour
11 Because overtime was included , the base rate used by Respondent was
always lower than the hourly rate called for in the union contract At the
time of the hearing Respondent was using $3 16 per hour for wage and
hour purposes instead of the $3 84 figure mentioned in the preceding foot-
note
12 In May 1968, Bowen acquired Cushman Transports , Inc , a carrier
LABOR RELATIONS BOARD
King, Aaron Oakley , Harold Brandon , Harold
Jones , Charles Barr , David Galbreath , Lloyd Mc-
Connell ,'" Timothy Gass , and Joseph Preston. The
dispatcher was a Mr. Tutt . Runs or work was as-
signed strictly according to seniority . The driver
with the most seniority received the best run (the
one that paid the most ) and so on down the line
until all assignments were made . The dispatcher
made the driving assignments . The usual method
was to call the assigned driver at his home before 5
p.m. the day before the run was to be made.
C. King Becomes Dispatcher and a Supervisor
In June or July 1968 , Tutt informed Bowen that
he was going to leave and the dispatcher 's job was
posted . King and Jones were the only drivers who
applied . Bowen gave the job to King . Respondent
contends that King in the dispatcher's job was not a
supervisor . This contention is error. The record
clearly establishes King to be a supervisor.
Bowen's testimony shows that he considered the
dispatcher's job to be a supervisory one. In
discussing the action he took in promoting King,
Bowen compared it to the way in which he handled
promotions when he formerly operated a big
trucking line. Then he always followed the practice
of promoting from the ranks. "[WI e always offered
our supervisory staff jobs to the rank and file, the
drivers or the dock workers and so on who were
qualified." That practice he followed in making
King the dispatcher.15
Bowen testified that he visited the Tuscola ter-
minal about once a week. This terminal was about
25 miles from Mattoon . In Bowen's absence the
Tuscola operation is under the charge of the
dispatcher . He is the man who takes orders from
the customer and gets the equipment lined up, etc.,
and "more or less [does] the same job that Jack
King does in Mattoon ." The number of drivers at
Tuscola varied from time to time . Sometime in
1968 there were eight. There is little doubt that
under such isolated conditions the dispatcher at
Tuscola exercised supervisory functions . From the
middle of April to about the middle of July 1969,
Bowen sent King to Tuscola to be in charge of
operations there. This action confirms the super-
visory character of King's position.
The record shows that King had authority to hire
and fire. Preston , seeking employment at Respon-
dent , spoke to King several times and was told
there was no work. King gave him an application to
fill out , which Preston did and returned . Later King
licensed under the interstate Commerce Commission It was based in
Chicago with other terminals in Detroit and Cincinnati
13 He brought his son Peter Bowen in as a sales manager and made him
vice president
14 About October 1968 Galbreath and McConnell transferred to Chicago
to work for a terminal that Bowen was opening there
m Prior to becoming dispatcher , King obtained an withdrawal card from
the Union informing the union representative that he was becoming a
dispatcher The unit of employees at the terminals covers only drivers
BOWEN TRANSPORTS, INC. 587
put Preston to work . Preston 's only contact prior to
employment was King . King testified that Preston's
application was approved by someone higher up
but was unable to specify the individual . There is
no evidence in the record that Preston was in-
formed by King that his employment was subject to
approval by any person other than King. The
record shows further that the drivers understood
that King had the right to hire and that other
drivers were hired by him under the above
procedure.
In addition to the above , King had authority to
lay off drivers , direct them not to come to work, or
direct them to take additional work . Oakley had
been driving for about 18 hours in 1 day. On his
return , King ordered him out on another run.
Oakley objected . King insisted "These have got to
go out." Oakley stated he was going home and
going to bed . King told him if that 's the way he
thinks about it, "you just go home and you stay
there ." Oakley said , "O.K." and changed his
clothes to go. At this time, King told him to forget
it, to go home , "get your rest and come back and
take these orders ." Oakley did so. Another instance
occurred on March 18 , 1969. Oakley was released
from the hospital after an operation . He reported
back to the terminal . King ordered him to get
releases from his doctor and surgeon before he
would assign him to any work . King, on several
days in 1969, directed Barr to drive another load or
take additional loads after Barr had already driven
10 hours on that particular day. King directed the
Mattoon drivers to report at other terminals to
drive trucks . Gass testified that King "wouldn't ask
you" to go to Tuscola, "He'd ordinarily just call
you and tell you to ." Bowen testified that King
"would be the one to ask [the drivers ] if they wanted
to transfer to another terminal ." Barr testified that
in February 1969 he asked King for a transfer
"back to Mattoon."
The record contains other evidence of King's su-
pervisory status . In light , however , of N.L.R.B. v.
Metropolitan Life Insurance Co., 405 F.2d 1169, it
would only lengthen this decision unnecessarily to
list them . Metropolitan Life holds that Section
2(11) speaks in the disjunctive16 and to constitute a
person a supervisor it is sufficient to show that the
person performs any one of the functions, or, in the
performance of his duties, possesses one of the enu-
merated powers and responsibilities set forth in
Section 2(11). King's responsibilities and duties as
above stated come clearly within this holding. Ac-
cordingly , it is found that King is a supervisor
within the meaning of Section 2(11) of the Act.17
D. The Union Campaign Begins at the Mattoon
Terminal
After Bowen's return in 1968, the drivers at the
Mattoon terminal, desirous of working under a
union contract, started organizing. In July Jones
went to the Mattoon union hall and obtained cards.
King had recently been made dispatcher and was
not included in the movement. By early September
each Mattoon driver had signed a card. Some were
solicited by Jones; others signed cards at the union
hall. Jones was considered the key employee in the
organization effort by Bowen and the employees.
In August 1968 the drivers held a few meetings in
the union hall at Mattoon with Bounds, state or-
ganizer for the Union. At one he told them that he
felt voluntary recognition from Respondent would
be forthcoming because of the union contract exist-
ing at Tuscola.18 In September 1968 Bounds called
Respondent to arrange a meeting. In the meantime,
Bowen had had an accident, had been injured, and
was away from work. Bounds informed Jones and
some other drivers that he intended to wait for
Bowen's return. On October 22, 1968, Bounds and
another union representative met with Bowen and
his son at the Mattoon terminal.19 None of the
drivers was present. The discussion was friendly.
The Union asked for recognition. Respondent
asked for an extra week to contact its attorney. The
meeting ended on that note.
Although there were several telephone calls
between Respondent and the Union thereafter, and
there were meetings between Respondent and the
drivers, the union representatives had no further
meeting with Bowen until January 21, 1969, when a
union contract was signed, effective February 1,
1969. This contract was the same as the Tuscola
contract and included a guaranteed wage clause.
Under this clause, a union driver received at least
the guaranteed wage if a driver of lesser seniority
was employed at any time during the particular
week. It was the operation of the guaranteed wage
clause that gave rise to Respondent's problems at
the Mattoon terminal. Seasonal or irregular haulage
did not fit a guaranteed wage. Bowen explained this
as follows:
Oh, I told them that under the guarantee
they would limit us to working or hauling, I
guess I should say, only when we knew that
freight which we knew about at the beginning
of the week.
*
1e Sec 2(11) defines a "supervisor" of a merely routine or clerical nature, but requires the use of indepen-
any individual having authority , in the interest of the employer , to dent judgment
hire, transfer , suspend, lay off, recall , promote, discharge , assign, re - The cases cited by Respondent in support of its contention that King
ward, or discipline other employees , or responsibly to direct them , or is not a supervisor are inapposite
to adjust their grievances , or effectively to recommend such action, if 'B It had been in effect about 15 years
in connection with the foregoing the exercise of such authority is not Bowen incorrectly places this meeting in early December 1968
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I tried to explain to them by example that if
we started out the week with two drivers, the
union contract has a clause in it which has a
scale in there showing how many extra drivers
you can have. For example, if you had two
regular drivers, the guarantee applies to 80 per
cent of the drivers. Well, obviously you can't
take 80 per cent of two drivers and come out
with an even figure, so there is a scale in there
which says that, for example, if you have two
drivers, you can have one extra. Now, then,
let's assume that on Thursday or Friday of that
week your very best customer calls up and says
I've got a load of freight I want you to move,
and these three drivers are out on that particu-
lar day, at that particular time they are out on
runs....
I was trying to explain to them by way of ex-
ample what would happen, that we would have
to turn that Thursday or Friday load down
because we would have to call out Driver No.
4, and that would make us pay driver No. 3 a
full week's pay even though he might only have
worked one or two days. Obviously, no opera-
tor can do that.
E. Bowen Meets with Jones and Gass in Early
November 1968
When the road oil season was drawing to a close,
in early November 1968 , a meeting occurred
between Bowen and drivers Jones and Gass, ar-
ranged at the request of the latter two. Union ac-
tivity or union organization was not mentioned.
Jones in effect told Bowen he didn't know how to
run the business and asked Bowen , "What are you
doing about getting business ?" Bowen replied,
"We've got more solicitors now by far than Paullin
ever had, we are working on it all the time ." Bowen
gave Jones the same response when the latter asked
what would happen when the road oil season was
over. The hauling of butane (the next seasonal
product) was next discussed. There was agreement
that the rate paid the drivers was too low and was a
cause for dissatisfaction. Bowen pointed out that
20 Respondent 's customer was Marathon Oil located in Robinson, Il-
imois Heretofore, Marathon had purchased butane from Phillips Petrole-
um at Tuscola. Respondent then hauled the butane in blimps dunng the
winter months using Mattoon drivers At or about the time of this meeting,
Bowen had been informed that Marathon was making its own butane at
Robinson and would no longer need transportation from Tuscola The
record contains no haulage of butane during the winter of 1968-1969 until
January 1969 Then, a breakdown occurred at the Marathon plant and in
January 1969 Respondent hauled 21 loads Jones was the driver
" After attending this meeting, Miller disappears from the record
King testified he was present during the entire meeting His testimony
is of a general nature with regard to the conversation King does confirm
that Bowen said they "would be better off without" the Union. King
when Paullin had contracted to haul butane he had
met the rail rate and that no trucker could make
money hauling on that basis . Bowen also told Jones
and Gass that his customer had advised him that
there would be no further butane haulage this
winter because his customer was manufacturing bu-
tane at its plant instead of having it delivered.20 The
meeting ended with nothing determined.
F. Meeting on November 17, 1968, Between Bowen
and the Mattoon Drivers
Also in early November, Jones and the drivers set
about arranging a meeting with Bowen to discuss
the union contract. They spoke to King about it.
King spoke to Bowen and reported back that there
would be a meeting . Bowen and King agreed that it
would be best to hold the meeting on a Sunday. No
driver worked on Sunday and the Mattoon drivers
were usually home for that day. King, accordingly,
set the meeting day for November 17, 1968, and
posted a notice on the bulletin board.
Present at the meeting were all the drivers then
working at Mattoon: Oakley, Brandon, Jones, Barr,
Gass, Preston, and a new driver, Miller'21 and Gal-
breath and McConnell who were working at the
Chicago terminal . Of these, Oakley, Jones, Barr,
Gass, and Preston testified with regard to the events
of the meeting . Present on behalf of Respondent
were H. G. Bowen, Peter Bowen, King, and Wiley,
an office employee. Of these H. G. Bowen and King
testified. No union representative was invited to or
present at the meeting.
The meeting lasted about 1- 1/2 hours during
which much discussion occurred on the advantages
and disadvantages of a union contract at Mattoon.
The drivers testified that Bowen threatened them
with economic reprisals if the drivers went union.
Bowen denied that he made any threats.22 He
testified that on request of the drivers he explained
to them the disadvantages of working under the
contract, particularly that they would be limited to
the earnings of the guaranteed wage; advised them
that to all intents and purposes they had everything
now that the contract would give them, except pen-
sion, and concluded that in his opinion "they would
be better off" without the Union.23
On the credited testimony of the drivers it is
found that at the November 17 meeting Bowen told
the drivers that if they wanted a union contract
testified
A Well, he asked Mr Bowen what he thought about it [the
contract]
O Did you hearMr Bowen's discussion after that"
A Yes
What did Mr Bowen say"
A He said, well, he said , " If you want a contract we can have a con-
tract, we've got them everywhere else," but, he says, "I think you
would be far better off without one "
Peter Bowen was present at the hearing but did not testify.
I The drivers testify that , among other things, Bowen said they "would
be hurting themselves" by getting a union contract
BOWEN TRANSPORTS, INC. 589
they could have one but, if they got it, he would
close out the operation at Mattoon and hire drivers
in Tuscola to do the work. Further he told them
that if they were working at Mattoon under the
contract they would be limited to earning the
guaranteed wage thus cutting their wages down;
they would "lose [their] extra work"; and their
"overtime would be cut off."24 Such threats of
economic reprisal in connection with a union cam-
paign are violative of Section 8(a)(1) of the Act.25
Bowen's actions immediately after the meeting
give additional substance to the foregoing conclu-
sions . On November 20 he placed an advertisement
in the Journal Gazette, the daily newspaper of Mat-
toon. The significant portion read as follows:
WANTED
the point of origin of the U.S. Steel movement. In
accounting for the use of the Mattoon paper, he
stated that it had been difficult to obtain owner-
operators in Chicago26 and that he might have more
success in Mattoon even though the number of
owner-operators in Mattoon (a city of 19,000
population) was limited. Further, he testified that
he used the Mattoon newspaper because that was
where Respondent's offices were and the owner-
operators would have to come to Mattoon to be in-
terviewed. When questioned, admitting that
November and December were lean months,
Bowen did not reasonably account for the fact that
the advertisement appeared late in November so
soon after the meeting.
In view of the foregoing, it is concluded that the
advertisement was intended to further Bowen's
statement at the meeting of November 17 to take
steps to close down the Mattoon terminal.
OWNER-OPERATORS
INTERSTATE AND INTRASTATE
CUSHMAN TRANSPORTS, INC.
BOWEN TRANSPORTS, INC.
The place of contact was Respondent's address in
Mattoon. The advertisement ran for 12 days and
for another 15 days from December 3, 1968.
Owner-operators are individuals or concerns who
own and operate their own trucks on a contract ba-
sis. The use of owner-operators at Mattoon would
decrease the haulage by drivers employed there by
Respondent.
Bowen's testimony as to the reasons for the ad-
vertisement was vague and conflicting as to the tim-
ing and purpose. When first questioned he stated
the purpose of the advertisement was to find drivers
that he might use during the road oil season
beginning in April-May 1969. Subsequently he
stated that the advertisement was to find owner-
operators to be used in Chicago by Cushman Trans-
ports. He recalled that at that time Cushman was
negotiating with U.S. Steel for some business that
would require haulage out of Chicago. With regard
to this movement he stated that he did not know
24 Gass, Jones, and Preston testified that Bowen said "there would be no
more overtime " Bowen denied he made the statement In his support, he
pointed out that the union contract does not provide for overtime In
November 1968 the union contract was not in effect at Mattoon, and the
guaranteed wage was not being paid There is considerable doubt as to
what "overtime" may have referred to in the Mattoon operation The
drivers were confused because of their knowledge that overtime was in-
cluded as an item in the double system of bookkeeping set up by Respon-
dent to comply with Wage and Hour Regulations Jones testified he worked
overtime but never got paid for it The record contains testimony that over-
time may refer to the "extra work" at the Mattoon terminal mentioned
above Whatever the interpretation of overtime, there is little doubt that
the term, in the context used by Bowen when speaking to the men, con-
veyed to the men the idea that they would lose income if they went union
This was the particular thought he was pressing Such a statement is
proscribed by the Act
25 Respondent contends that Bowen 's statements were explanatory,
G. Transfer and Loss of Work
The General Counsel alleges that since the
November 17, 1968, meeting Respondent, in
furtherance of his antiunion campaign, transferred
equipment and work from the Mattoon terminal to
independent contractors and to Respondent's other
terminals, thereby causing Oakley, Brandon, Jones,
Barr, Gass, and Preston to lose hours of work. The
ensuing discussion will deal with this contention
month by month.
1. The movement of traffic during the period
November 17, 1968, through February 1969
By November 1968, the date of the meeting
between Bowen and the drivers, the drivers out of
Mattoon were, in order of seniority, Oakley, Bran-
don, Jones, Barr, Gass, and Preston.27 Of these six
Barr was temporarily stationed at the Decatur ter-
minal and would return to Mattoon in February
1969; Oakley went on vacation for the first 2 weeks
of December, worked 3 or 4 days including New
Year's Eve, went to the hospital on January 2,
1969, and returned to work March 18, 1969. The
drivers left, in order of seniority, were Brandon,
Jones, Gass, and Preston.
The period from November through February in
the past had always been a slack period at Mattoon.
nonthreatening, and protected under Section 8(c) of the Act Such a con-
tention could be said to apply to statements other than the threat to close
down the Mattoon plant For example, Bowen testified that by entering
into a union contract the men were "putting some restrictions on your-
selves ." More particularly he was referring to the fact that they would be
limited to the guaranteed wage , that the operation of the guaranteed wage
would cause them to lose "extra work " that he had allocated to the Mat-
toon terminal instead of to Tuscola or the other terminals . Under the
guarantee clause the extra work could be more cheaply done at the other
terminals , economy of operation and good business would require that it
not be done at Mattoon. Such explanatory remarks lose their 8(c) protec-
tion when made together with or under the umbrella of threats of economic
reprisal
26 Chicago is approximately 175 miles from Mattoon
" King had become dispatcher in .'uly 1968 McConnell and Galbreath
had transferred to Chicago
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The same period in 1968-1969 was no exception.
The record contains no information that would per-
mit a comparison of the business done during this
period from year to year, including 1968. The
record contains no evidence that any run during
this period scheduled to leave from Mattoon did
not do so. The record does not show for the period
November 1968 through February 1969 that any
business or run that had issued out of Mattoon dur-
ing that period in previous years was transferred by
Respondent to be hauled from some other terminal.
The record does not show that any work during this
period was performed by an independent trucker
except one instance in February 1969 discussed
hereafter. The record shows that business fell off"
and that the drivers at the Mattoon terminal did get
some work but did not get all the "work they
wanted." There is no significant evidence in the
record that shows that the lack of work was at-
tributable to other reasons than lack of work. Jones
testified, for example, that in previous years during
the seasonal slack, drivers of lower seniority than
his were laid off "up to two months some of them
maybe two or three weeks."
For the period from November 17 through
December 1, 1968, there is no record of the activi-
ties of Brandon and Oakley. Barr was stationed in
Decatur. Preston was given no runs at all. Gass,
who was senior to Preston,, received 16 hours for
the week ending November 30. For that week
Preston applied for and received workmen's com-
pensation. The record contains no evidence of the
activity of Jones except for the statement that his
work "fell off considerably."
For the month of December 1968, the record
contains no information with regard to the activities
of Brandon. Oakley was on vacation the first 2
weeks and had 3 or 4 days' work the remainder of
the month including New Year's Eve. Oakley was
senior to all the remaining drivers. There is no com-
plaint that he was deprived of any work. Gass
received 11-1/2 hours' work during the week end-
ing December 7; 32-1/2 hours the week ending
December 14; 8 hours' work the week ending
December 21; and 11 hours' work the week ending
December 28. Some time late in December Gass
applied for a job with Yellow Transit Company and
went to work for them on January 3, 1969. In his
application to that company he stated that Respon-
dent had "laid him off for lack of work." He
testified that the job at Yellow was better than the
one at Respondent because the hours were shorter,
the pay more regular and there was no problem
28 See In 20 showing the loss of the butane movement for this season
48 It is reasonable to conclude that here Jones is referring to the butane
movements in January 1969 caused by the breakdown of production at the
Marathon plant See fn 20.
30 Preston testified that he hauled beer and brought in a new trailer
31 This statement was made despite the fact that in February Respondent
ceased hauling beer For many years Respondent had hauled beer from the
Mattoon terminal to Belleville, Illinois, "always one load a week sometimes
two " In February 1969 Respondent communicated with has customer and
about paychecks. Also he stated without amplifica-
tion that he "was not getting along so good" at
Respondent's. As to Jones, the record contains no
evidence as to work performed by him during
December. As with November, he testified that his
work "fell off considerably." There is no evidence
in the record that any of Respondent's work in
December was farmed out to independent truck
operators. Jones testified that in December one of
the blimps was removed from Mattoon. The state-
ment is too vague to be credited. Jones, without
specifying the particular time, admitted that he
drove propane in the winter of '68/69 and that dur-
ing the months of December 1968 and January and
February 1969 he pulled about 2 dozen loads con-
tained in blimps.29
For the month of January 1969 the record con-
tains no information with regard to the work of
Brandon. Oakley was in the hospital. As stated
above Jones was driving blimps (product
unidentified) with an unspecified frequency. Jones
testified, "At the time Oakley was in the hospital,
that left Brandon and I, Barr hadn 't transferred
back from Decatur yet, and there was some weeks
that I'd probably work 80, 90 hours." It is signifi-
cant that during this month two drivers with lesser
seniority than Jones were also driving. For the week
ending January 11, Preston drove 12-3/4 hours; the
week ending January 18, 15-3/4 hours; and for the
week ending January 25, 23-1/2 hours.30 Gass, who
was about to start work for Yellow Transit, drove
one load on January 4.
For the month of February 1969 the record con-
tains the testimony of Jones that the work picked
up.31 As in January, Oakley was in the hospital. The
work was left to Brandon and Jones. The latter's
statement that he worked as much as "80, 90 hours
a week" included February. Preston, the lowest
man on the seniority list, drove once on February 1,
1969. The only other driver that month, according
to the record, was Barr . How much he drove or
when, the record does not show. During February,
Respondent used an independent trucker on one
occasion to haul a load under the following circum-
stances: R. R. Donnelly & Sons, publishers, was a
client of Respondent in Mt. Morris, Illinois.
Respondent picked up a load. The truck to be used
by Respondent could not be used because of scored
pistons. Respondent had no other truck available in
Mattoon. Donnelly required immediate delivery.
Respondent used the services of Tutt, its former
dispatcher, to move the load.32 The record contains
no evidence to show that this movement by the in-
advised him that "under the guarantee [of the union contract] we had to
pay the driver more than we were getting from him for hauling it " For that
reason, he would no longer haul it Jones hauled the last three loads of
beer
32 Jones testified that Respondent used no independent trucker in
January or February 1969 Barr filed a grievance in connection with this
item and stated in it that Respondent had "no equipment available to pull
this load "
BOWEN TRANSPORTS, INC. 591
dependent trucker was caused by other than
economic necessity and the emergency situation.
Under these circumstances it is found that the
reduction in work that occurred at the Mattoon ter-
minal from November 17, 1968, through February
1969, resulted from economic causes and the con-
sequent nonemployment of the drivers was not
violative of the Act.
2. Transfer in March 1969 from Mattoon to
Tuscola of the movement of anhydrous ammonia
U.S.I. is an affiliate of National Distillers. At its
Tuscola plant it manufactures liquified petroleum
gases , denatured alcohols and solvents, synthetic
plastics, pure alcohols, ether, commercial acids,
and fertilizer solutions (anhydrous ammonia).
Respondent, using a terminal located on U.S.I.
premises, has been transporting U.S.I. products for
the past 16 years.
Until 1969,'the transportation of anhydrous am-
monia was given special treatment by Respondent.
Trucks with pressurized tanks capable of withstand-
ing a 265-pound pressure test were used. In the
trade these are known as "blimps." In the season
1968-1969 Respondent owned and operated three
blimps33 that were stationed at Mattoon. Though
the anhydrous was manufactured at Tuscola,
Respondent, with the consent of U.S.I., had always
scheduled the movement out of Mattoon using
Mattoon drivers.34
The transportation of anhydrous depends on the
spring planting season of the Illinois farmers which
occurs as soon as the winter weather breaks.35
Usually, planting starts in early March and con-
tinues for a 6-week period through April. During
the season the drivers were required to work almost
around the clock to supply the peak need of the
farmers for the product. A complicating factor in
the delivery schedule was that a rainstorm
(preventing the use of the anhydrous by the
farmer) would cause an immediate cessation of
deliveries.
Bowen admitted that until the spring of 1969 an-
hydrous had always moved out of Mattoon with
Mattoon drivers. In March 1969 Bowen transferred
the blimps to Tuscola.' From that time forward no
anhydrous moved from Mattoon. Respondent con-
tends that the transfer to Tuscola occurred in
response to and because U.S.I. complained about
difficulties that resulted from the system of schedul-
ing via Mattoon; that to satisfy these complaints he
made the transfer. The record shows that the real
reason for the transfer of the anhydrous movement
to Tuscola was in retaliation against the Mattoon
drivers for stating they would file, and actually fil-
ing, grievances requesting payment of the guaran-
teed wage under the contract.
March 7, 1969, was the last time Jones drove a
blimp out of Mattoon with anhydrous. The same
day, immediately before driving off, in the presence
of King and Barr, Jones had a discussion with
Bowen about his paycheck for the previous week.
In that week Jones had not driven the full guaran-
tee period, but under the guarantee he was entitled
to payment of $184.32: "He received $95.96. His
complaint was brought to Bowen's attention and
the discussion followed. Bowen told Jones that he
was not going to pay the difference, that Jones
would have to file a grievance to get it. Bowen
further said that if he did file a grievance, Respon-
dent would start laying off drivers, move the equip-
ment from Mattoon, and even cut off runs. Jones
did not argue with Bowen but left to make the
above-mentioned run.
King and Barr remained . Barr was waiting for his
wife to pick him up, but the conversation con-
tinued . In response to King 's question , Barr said he
had no intention of filing a grievance because he
did not have the guarantee "coming," but that he
believed Jones would. King responded that Jones
had always been a- troublemaker even under Paul-
lin; that if he did file the grievance Bowen "would
pull the blimps out of Mattoon to Tuscola and there
would be no anhydrous for Mattoon drivers to
pull."
On March 10, 1969, Jones filed his grievance. It
is not clear from the record whether Respondent
shifted the movement of anhydrous to Tuscola after
March 7 or after March 10. But the record is clear
that from the day of the Bowen/King threats to the
time of the hearing no anhydrous moved from Mat-
toon. All the anhydrous moved out of the Tuscola
terminal . In connection with this shift , the number
of drivers at Tuscola increased. When the season
closed the blimps remained in Tuscola.
Bowen and King both denied that they made the
above statements . I credit Jones and Barr.
Respondent contends that Bowen transferred
King and the blimps to Tuscola as a result of com-
plaints from U.S.I.; that this transfer was solely for
economic reasons and therefore not violative of the
Act. The record does not support these conten-
tions. U.S.I. had been complaining about the Mat-
toon terminal for many years before the 1969
season. The 1969 season started out with the use of
3' As already stated blimps were also used for the transportation of bu-
tane and propane
"On occasions, in an emergency, Tuscola drivers would drive when
Mattoon drivers could not handle all the traffic
" The traffic manager for U S I testified
During the spring fertilizer season , which is rather difficult for any-
one to understand that 's not intimately acquainted with a farmer and
their panic of application of specifically anhydrous ammonia in the
very short time they have between the preparation of the ground and
the planting of the seed , yes, we had experienced some problems with
long-distance scheduling , and with the long-distance movement of
manpower and equipment This is perhaps magnified by the fact that
any producer during this period or distributor has considerably more
orders during a 24-hour period than physically possibly you can
deliver , and as additional orders come in, you change your priority all
day long , and so you are wanting to change your schedule
38 As shown later , at this time King was also sent to Tuscola for a period
of 5 to 6 weeks
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mattoon scheduling .37 The record shows no specific
incident that would cause Bowen to cut off the
practice of the past 15 years nor does it show any
specific complaint by U.S .I. at that particular time
that sparked the transfer as
The record clearly shows that Bowen , prior to
the March encounter with Jones , had no intention
of transferring the movement of anhydrous from
Mattoon to Tuscola . Bowen prior to March 1969
kept the blimps at Mattoon though he knew that for
several years the Union had been urging Respon-
dent to station the blimps permanently at Tuscola.
His intent to keep the blimps at Mattoon was ac-
centuated by the fact that in August 1968 Bowen
was advised by U.S .I. there would be no future an-
hydrous shipments . At that time , Bowen started
planning to sell or transfer the blimps . About 2 or 3
months later U.S.I. told him that their plans were
changed and the delivery of anhydrous would con-
tinue and asked Bowen to go through another
season . Bowen agreed and started the season out of
Mattoon . It was not until the knowledge of the fil-
ing of the grievances that he suddenly , and without
apparent reason , changed the system to ship out of
Tuscola . There may be some validity to the asser-
tion that the change was economically sound or
gave rise to a more efficient operation. But there is
insufficient evidence in the record to show that
these factors motivated the change . Rather it is
more reasonably concluded that Bowen made the
change to avoid the filing of grievances by the
drivers for payment of guaranteed wages as in-
dicated above.
It is well established that the filing of grievances
under a union contract is protected by the Act.
Respondent 's threat and action interfered with,
restrained , and coerced employees in the exercise
of their rights as guaranteed by Section 7 to engage
in collective-bargaining and self-organizational ac-
tivities. Accordingly , it is found that the threats and
actions are violations of Section 8(a)(1) of the Act.
3. Events at Mattoon from March 1969 to date of
hearing
For the month of March 1969 the record shows
little concerning the hauling activities out of Mat-
'r Jones hauled some loads of anhydrous scheduled from Mattoon the
latter part of February through March 7, 1969.
3' Respondent put in evidence a letter from U S I praising Respondent's
1969 delivery performance The record shows this letter was solicited by
Respondent after the filing of the charge in this action The letter refers to
the transfer to Tuscola and attributes improved performance to the transfer
from Mattoon However , neither the letter nor the U.S I representative
through whom it was introduced gave any specific instance preceding
March 7 that would give rise to the transfer
`0 On March 11 , Preston took over the management of a service station
in Mattoon It is found that Respondent's efforts to communicate with, or
to obtain resignation letters from , Preston and Gass are not improper.
'0 No finding is made as to the amount of work each would have per-
formed
41 King on cross-examination admitted that he spoke to Oakley and Bran-
toon . All the drivers agree that "things was awful
slow" and nothing was moving . Oakley returned on
March 18 and was put to work hauling road oil and
paper . He hauled no anhydrous ammonia nor did
he drive any blimps . The record contains no infor-
mation as to Brandon 's activities . As already stated
Jones , on March 7, drove the last load of anhydrous
ammonia assigned to a Mattoon driver . Also this
was the last time he drove for Respondent. Barr
drove three times in the first week of March.
Between March 13 and 1539 Jones and Barr
received layoff notices based on "lack of work." It
is found that these layoffs are illegally discriminato-
ry. The record shows that at the time Jones and
Barr were laid off , anhydrous was moving out of
Tuscola . It is reasonable to conclude that had it not
been for Respondent 's illegal transfer of this move-
ment to Tuscola, then either Jones or Barr or both
would have been assigned this work in Mattoon.40
Under these circumstances , the layoff of Jones and
Barr is a direct consequence of Respondent 's action
in violation of Section 8(a)(1) and is therefore il-
legally discriminatory in violation of Section
8(a)(3).
When Oakley returned to work on March 18 he
held the conversation with King , referred to in sec-
tion III C, above, in which King required him to get
the doctor's medical releases. This conversation
continued with King asking Oakley if he had heard
of the layoff of Jones and Barr . Oakley stated he
was aware of it. King then continued " if you and
Brandon demand your union scale and your
guaranteed time ... Mr. Bowen is just going to
close this up and take over to Tuscola and you'll
get a letter you're laid off." Brandon testified that
about a month after Jones was laid off he held a
conversation with King . The latter told Brandon
that if any more grievances are filed, those drivers
below the grievant in seniority would be laid off,
and further, the filing of grievances would cause
Respondent to close Mattoon and move to
Tuscola .41 These conversations between King and
Oakley and King and Brandon are violative of Sec-
tion 8(a)(1) of the Act.
The road oil season was about ready to com-
mence . About April 1 a meeting occurred between
don about the filing of grievances and continued
Q. What did you tell him9
A. I told him that if there wasn 't enough work to keep the two of
them going over the guarantee, that we'd have to lay one off Mr
Oakley was off sick from an operation for the first part of the year, for
probably two months or somethinglike that.
Q. Did you recommend that they not file gnevices9
A. I told them it would probably be better if they didn't.
Q In fact , didn't you tell them that if they filed grievances there
wouldn't be any work to do, is that correct?
A. No, I did not.
Q What did you tell them the filing of grievances would do, what
effect would it have)
A. Well, it would lay the gguys off down to what just had to be there
for what runs there was
BOWEN TRANSPORTS, INC. 593
Bowen and his son and Oakley, Brandon, and
Barr.42
Bowen testified that he called the meeting
because the drivers had been pestering his
customer to find out when the road oil season
would start. He stated that the meeting was brief
and the following occurred: He told the drivers that
under arrangements with his customer the road oil
season would start soon;43 they were not to bother
his customer; and that he would call them for work
in the order of their seniority; Oakley asked him
what was going to be done after the road oil season,
to which he responded that the salesmen were out
trying to work up some business.
Oakley, Brandon, and Barr amplified Bowen's
testimony. In addition to the above, they stated that
he told them he could not afford to pay the guaran-
teed wage , or the loading and unloading time as
provided in the union contract; that if the drivers
wanted to run the loads the difference would be out
of their own pockets; that he had spoken to the
Union about it and the Union had said they would
give him no trouble ;44 that he had promised the
customer he would haul the road oil this year, but if
it became too costly he would have to give it up.
The General Counsel alleges that the statements of
Bowen at the April 1 meeting constitute an 8(a)(1)
violation .45 It is found that this allegation is unsub-
stantiated by the evidence.
As found herein Bowen's statements relate to the
economic position of Respondent with regard to
the coming road oil season .46 In that framework
they are not coercive and do not exceed the per-
missible limits of Section 8(c) of the Act.
From this meeting forward until the time of the
hearing, Oakley, Brandon , and Barr were the three
drivers used by Respondent. Barr, after his layoff
notice, was called back to work on April 21, the
day Jones was discharged.47 The record contains no
evidence as to the circumstances under which the
three drivers hauled their loads; nor does it contain
any evidence as to the manner in which they were
paid.
The record does show that the number of drivers
employed at Mattoon for this period was less than
for an equivalent time the previous year. The
record shows that the reduction is due to lack of
work after the termination of the anhydrous season.
There is no substantial evidence to the contrary.
Nor is there any substantial evidence in the record
to show that Respondent's tractors, other than the
blimps, were transferred from Mattoon during the
period subsequent to March 1969.46 Under these
circumstances, it is found, except as otherwise
found herein, that the reduction in work that oc-
curred at the Mattoon terminal from March 1969
through the time of the hearing resulted from
economic causes , and the consequent nonemploy-
ment of drivers was not violative of the Act.
The record does show that independent owners
were used by Respondent during the 1969 road oil
season to haul road oil.49 Bowen testified that
Respondent used independent owners when his
own tractors were not available50 to meet the
customer's demands for urgent delivery. There is
no substantial evidence to the contrary. Respon-
dent points out that this practice had been in effect
during the 1968 road oil season. As stated above,
there is no substantial evidence that Respondent
moved his tractors from Mattoon in this period. Ac-
cordingly, on the basis of the foregoing and the
record as a whole, it is found that there is no sub-
stantial showing that the use by Respondent of in-
dependent owners during the 1969 road oil season
was proscribed by the Act.
H. The Saga of Harold E. Jones
As stated above, Jones was the key man in the
organization of the drivers at Mattoon and the chief
speaker at the meeting with Bowen on November
17, 1968. He was number three in seniority among
the drivers after Oakley and Brandon. He was hired
by Respondent in 1961 and had driven consistently
since without layoff. Bowen considered him a
troublemaker , complainer, and an undesirable em-
ployee . King and Jones both admitted they did not
get along well or like each other , even though for a
while both drove a truck together.
Jones was diabetic . From the time he was hired
he wore a medal on a chain around his neck advis-
ing to that effect . He treated himself daily by injec-
tion. Paullin, King, and the other drivers knew that
he was a diabetic prior to June 1968 when Bowen
took back the active management of Respondent.
In September 1966 Jones had a heart attack and
'= The layoff of Jones and Barr was still effective . Jones, senior driver to
Barr , was not asked to attend. Barr was notified by telephone to be present
As stipulated by the parties the first road oil run was made on May 2,
1969.
" Oakley testified that after the reference to the Union, Bowen said "If
we didn 't want to haul it , why, he'd get a few brokers ." Upon specific
questioning as to this statement, Brandon answered that " he heard that
said" but does not recall it being said at the April 1 meeting Barr did not
corroborate Oakley. Bowen denied making the statement. Under these cir-
cumstances , it is found that Bowen did not make the statement about "few
brokers" at the April 1 meeting.
" The allegation and General Counsel 's argument stem from a somewhat
different statement of facts than found above
The potential breach of the union contract is not in issue
See the next section of this Decision for a discussion of this subject.
"The testimony of the drivers is vague as to the number of tractors
maintained at Mattoon and their movement to and from Mattoon for any
particular period. Jones testified that Mattoon was used as a repair facility
for all the Bowen trucks , he couldn 't tell which trucks were being moved in
and out but one could tell there "wasn 't near as many", the number of trac-
tors was reduced to three The period Jones referred to was from
December 1968 through March 1969. The record contains no evidence
concerning the number of tractors maintained at Mattoon after March
1969
1 The complaint raises no 8(a )( 5) issue Jones testified that he un-
derstood that under the union contract the employer had the right to lay off
employees rather than pay the guaranteed wage
S0 Oakley testified that the independent owners used their own tractors
to pull Bowen trailers.
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was hospitalized. Jones' personnel file with Respon-
dent contained a copy of a hospital report dated
October 8, 1966, showing that he had been
discharged from the hospital on October 4, 1966.
This report showed the diabetic condition. In addi-
tion to the insulin, Jones took medicine regularly to
alleviate the heart condition.
Jones continued to drive for Respondent after
Bowen took over. No question was raised about his
health or its effect upon his driving.
In March 1969, King , referring to the existent
slack period, indicated to Bowen a desire to drive
again . The record is not clear on precisely what fol-
lowed but it is assumed that King expected to be
the driver with top seniority, as he had been before
becoming the dispatcher. On March 19, 1969,
Jones filed a grievance contesting King's top
seniority. This caused King to change his mind
about becoming a driver. King resented Jones' ac-
tion , considered it "dirty pool," and decided to get
back at Jones. Shortly afterward he spoke to
Bowen , advised him of Jones' health record, and
recommended to Bowen that Jones be required to
take a physical examination.51 He told Bowen that
Jones "had been a troublemaker in a lot of dif-
ferent cases, and that we could get rid of him by
him having a physical because he couldn't pass an
I.C.C. physical."" As stated above Oakley had
recently been released from the hospital and
returned to work on March 18. Bowen commented
on this fact and told King that under the circum-
stances, "we'd better have all the men examined. "53
Letters were written to Oakley, Brandon, Jones,
and Barr advising each to take physical examina-
tions at the Respondent 's expense . Jones' letter was
dated April 2, 1969. Without objection, Jones took
his physical on April 9, 1969. About April 1254
Jones spoke to Bowen on the telephone about
returning to work. He was told that the Respondent
was waiting for the results of the physical before
any further determination could be made; that
Respondent would notify him by letter. On April
21, 1969,55 Respondent discharged Jones by letter
stating as follows:
We have received the medical examination re-
port of Dr. Hardinger. It is his opinion that you
are not qualified to drive due to various ail-
ments . A copy of the doctor's report is en-
closed. Accordingly you are discharged effec-
tive immediately.
Respondent advised the Illinois secretary of state
of the medical report on Jones. On June 25, 1969,
the office of the secretary of state of Illinois
notified Jones that it had received a report of his
61 Bowen testified he was unaware of Jones' disabilities Jones testified
that he did not know if Bowen knew of Jones' illnesses before King told
him
sx Respondent was an intrastate carrier and not subject to I C C regula-
tions The union contract provided that the employer could require the
drivers to take physical exam nations.
When asked, the Union stated it had no objection to the procedure
In the meantime Bowen had held the meeting with Oakley, Brandon,
physical disability and advised him that he was not
entitled to his operator 's license . Under Illinois law
the license became invalid 10 days after notice. On
June 27, 1969, Jones took another medical ex-
amination with another doctor who reported him
capable to drive. Jones took the report to the secre-
tary of state. The latter reinstated Jones' license
first, by issuing a letter dated June 27, 1969,
rescinding the revocation notice of June 25 and
finally by reinstating the license on July 23, 1969,
without restriction. The record shows that between
the dates of June 25 and July 23, 1969, Respondent
communicated twice with the officials in the office
of the secretary of state with a view towards getting
Jones' license revoked. Respondent informed the
secretary, among other things, that in its opinion
Jones was not fit to, and should not be allowed to,
carry a chauffeur's license.S6
Respondent contends that it discharged Jones
because of his physical disability. The General
Counsel contends that the whole course of action
from King's conversation with Bowen through the
discharge based on the cited letter was a pretext,
and the discharge was discriminatory in violation of
Section 8(a)(3) and (1). The record supports the
General Counsel.
To use the vernacular , King was "sore" at Jones
for filing the seniority grievance and wanted to get
back at him. He cooked up the physical examina-
tion scheme. Since the scheme presented what ap-
peared like a valid method of getting rid of Jones,
Bowen bought it. Certainly, the reasons advanced
by Bowen in arranging for the physical examina-
tions do not stand up under analysis. Bowen gave
two reasons why he started the examinations in
March 1969: (a) "I always had the drivers ex-
amined periodically, and when we had the big
truckline, that was an annual thing" and (b) Oakley
had been in the hospital for a serious operation.
As to (a): Bowen took over active operation of
the business in June to July 1968. For the period of
about 8-10 years prior some of the drivers had
taken physical examinations. The record does not
contain evidence to show that such examinations
were the regular policy of the Company, nor that
all the men then employed at Mattoon had been
through such examinations . After Bowen took over
again , he waited 10 months before he decided to
establish and commence the program of physical
examinations. No reason is given for the delay. The
timing in March, however, was significant. The
union contract had been executed effective as of
February 1. The guaranteed wage (an item that
Bowen was set against) was now effective chiefly
and Barr to discuss the coming road oil season referred to in the preceding
section Bowen gives no adequate reason why Jones was not invited to this
meeting even though he was Barr 's senior It is concluded that Bowen had
already resolved that Jones would be discharged
On April 16, 1969, Jones took a job with another company
In talking to one of the state officials Peter Bowen referred to Jones in
a derogatory manner
BOWEN TRANSPORTS, INC.
because of Jones' efforts. Jones had recently filed
grievances requesting adjustments on his wages to
comply with the guarantee wage clause of that con-
tract. Respondent had illegally laid off Jones by
letter dated March 13, -1969, because of these
grievances. There is little doubt that with these
recent events fresh in mind Bowen was easily con-
vinced that the King suggestion could be a likely
method of getting rid of this union gadfly. Further,
Bowen testified with regard to physical examina-
tions, that "it has always been my practice, and we
are presently doing that at Tuscola." When
questioned more closely Bowen became vague. He
stated that there was a rotation process at Tuscola,
"They apparently had some kind of a plan that
comes up every so often. I haven't examined the
plan or anything like that, . . ." Such actions do not
accord with the concept that Bowen was proceed-
ing as a matter of policy to establish an active regu-
lar system of physical examination for the drivers.
As to (b): Oakley went into the hospital about
January 2, 1969, for what Bowen called a "very
serious operation" to remove a "cancerous
malignancy." He was released later in January but
did not report back to work until March 18 . Before
accepting him, King required Oakley to get several
medical certifications that he was fit for work.
Under these circumstances, reference to Oakley as
a basis for a physical examination program was
entirely gratuitous. Further, it would be considered
reasonable that if Bowen were really imbued with
the idea of regular physical examinations , the return
of Oakley would have been the necessary spark to
set the wheels in motion . Obviously it was not, but
the desire to get rid of Jones was.
There is no doubt that Bowen, moved by public
spirit, is desirous of maintaining a physically fit
group of drivers to reduce the possibilities of road
accidents. However, it is clear from the record in
this case that another motivation, and certainly the
more pressing one, was to use this scheme to
eliminate Jones because of his union activity and
because of his persistence in filing grievances under
the union contract. With this intent , Bowen entered
into the program of having the men take physical
examinations with the expectation that Jones would
fail his and thus be subject to discharge. Such
motivation and action are violative of Section
8(a)(1) and (3) of the Act .57
IV. THE EFFECT UPON COMMERCE OF RESPONDENT'S
UNFAIR LABOR PRACTICES
The activities of Respondent set forth in section
III, above, occurring in connection with Respon-
dent's operations described in section I, above,
have a close, intimate, and substantial relationship
to trade, traffic, and commerce among the several
' See Southern Tours, Inc., 167 NLRB 363 In view of this discussion and
finding, it is considered unnecessary to discuss Bowen 's subsequent actrvi-
595
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 within the meaning
of Section 8(a)(1) and (3) of the Act, it is recom-
mended that it cease and desist therefrom and take
such affirmative action as appears necessary and
appropriate to effectuate the policies of the Act.
Having found that Respondent's violations in-
clude discriminatory layoffs and discharges, and
that it is considered that there exists a danger of
commission of other unfair labor practices, it is
recommended that Respondent be ordered to cease
and desist from infringing in any other manner
upon rights guaranteed by Section 7 of the Act.
Having found that Respondent discriminatorily
laid off Barr on March 14, 1968, and rehired him
on April 21, 1968, it will be recommended that
Barr be made whole for any loss of earnings from
the date of the wrongful layoff until the date of
rehire.
Having found that Respondent discriminatorily
laid off Jones on March 13, 1968, and then on
April 21 discriminatorily discharged him, it will be
recommended that Respondent offer Jones a full
and immediate reinstatement to his former or sub-
stantially equivalent position of employment
without prejudice to his seniority and other
privileges and that Jones be made whole for any
loss of pay he may have suffered as a result of
Respondent's unlawful conduct.
Having found that Respondent discriminatorily
transferred the movement of anhydrous ammonia
from Mattoon to Tuscola, it will be recommended
that Respondent restore the operation at Mattoon
to the status quo ante by returning the movement of
anhydrous ammonia to the Mattoon terminal.' The
record does not show the extent of the movement
of anhydrous at Tuscola. Thus, there is no way at
this time to determine the loss of work that was
caused at Mattoon by reason of the unlawful
transfer. If it is shown in the compliance stage of
this proceeding that a driver at Mattoon other than
Barr and Jones lost work by reason of such illegal
transfer, such driver shall be made whole for any
loss of pay he may have suffered as a result of
Respondent's unlawful conduct.
Backpay for Barr, Jones, and such other drivers
shall be computed in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289, with interest
added thereto in the manner set forth in Isis Plumb-
ing & Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact
ties before the Illinois secretary of state
sa See Manley Transfer Company, Inc , 164 NLRB 174,175
427-835 0 - 74 - 39
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and upon the entire record herein, I make the fol-
lowing:
CONCLUSIONS OF LAW
1. Bowen Transports , Inc., is engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
2. Teamsters Local #26, 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. By interfering with , restraining , and coercing
its employees in the exercise of the rights guaran-
teed by Section 7 of the Act, as found above,
Respondent has engaged in unfair practices within
the meaning of Section 8(a)(1) of the Act.
4. By discriminating in regard to the hire and
tenure of employment of employees Barr, Jones,
and other drivers, thereby discouraging member-
ship in or activities on behalf of a labor organiza-
tion, Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(3) of the
Act.
5. The aforesaid conduct constitutes unfair labor
practices affecting commerce within the meaning of
the Act.
6. Other than as found above, Respondent has
not engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the Act.
RECOMMENDED ORDER
Bowen Transports, Inc., Mattoon, Illinois, its of-
ficers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Threatening to close its Mattoon terminal, or
to transfer the movement of traffic from the Mat-
toon terminal to some other terminal if the em-
ployees choose to be represented by a union or file
grievances under a union contract.
(b) Transferring its trucking equipment from its
Mattoon terminal to another terminal if the em-
ployees choose to be represented by a union or file
grievances under a union contract.
(c) Threatening its employees with economic
reprisals, curtailment of work, or more onerous
working conditions because of their union sym-
pathies, activities , or membership , or the filing of
grievances under the union contract.
(d) Discouraging membership in Teamsters
Local #26, International Brotherhood of Team-
sters , Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, by dis-
criminating in regard to the hire and tenure of em-
ployees or any term or condition of their employ-
ment.
(e) Discharging, laying off, or refusing or failing
to reinstate with full backpay any employees by
reason of their membership in or assistance or sup-
port to said Teamsters Local #26, International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any
other labor organization, or because the employees
filed grievances under the union contract , or dis-
criminating in any other manner in regard to their
hire and tenure of employment, except to the ex-
tent permitted by the proviso in Section 8(a)(3) of
the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
(f) In any other manner interfering with,
restraining , or coercing employees in the exercise
of their right to self-organization , to form, join,
maintain membership in, assist , or support said
Teamsters Local #26 , International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Hel-
pers of America, or any other labor organization, to
bargain collectively 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 , including the filing
of grievances, or to refrain from any and all such
activities, except to the extent that such right may
be affected by agreement requiring membership in
a labor organization as a condition of employment,
as authorized by Section 8(a)(3) of the Act, as
modified by the Labor-Management Reporting and
Disclosure Act of 1959.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Terminate the arrangement for movement of
anhydrous ammonia from its Tuscola terminal and
return the operation to the Mattoon terminal for
haulage from that terminal.
(b) Offer to Harold E. Jones immediate and full
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 pay suffered as a result of
the discrimination against him, in the manner set
forth in "The Remedy " section of this Decision.
(c) Make Charles Barr whole for any loss of pay
he may have suffered as a result of the discrimina-
tion against him in the manner set forth in "The
Remedy" section of this Decision.
(d) Make any Mattoon driver, other than Barr
and Jones, whole for any loss of pay he may be able
to show that he suffered by reason of the transfer of
the movement of anhydrous ammonia from Mat-
toon to Tuscola during the 1969 anhydrous season.
(e) 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
Decision and Recommended Order.
(f) Post at its plant at Mattoon , Illinois, copies of
BOWEN TRANSPORTS, INC.
the attached notice marked "Appendix."" Copies
of said notice, on forms provided by. the Regional
Director for Region 2, after being duly signed by
Respondent's authorized representative, shall be
posted by Respondent 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 Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(g) Notify said Regional Director, in writing,
within 20 days from the receipt of this Decision and
Recommended Order, what steps have been taken
to comply therewith.8°
IT IS FURTHER ORDERED that the complaint be
dismissed as to the allegations not herein found to
be unfair labor practices.
'° In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions, and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board 's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board " shall be changed to read " Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
00 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
wasting , within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides 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.
WE WILL NOT discourage our employees
from engaging in activity having for its purpose
the submission, presentation, and processing of
grievances pursuant to the terms of a collec-
tive-bargaining agreement, by discharging,
refusing to reinstate, or in any other manner
discriminating against any of our employees in
regard to their hire or tenure of employment,
or any term or condition of employment.
WE WILL offer Harold E. Jones immediate
and full reinstatement to his former or substan-
tially equivalent position, without prejudice to
his seniority or other rights and privileges
previously enjoyed, and make him whole for
597
any loss of pay he may have suffered by reason
of the discrimination against him.
WE WILL take immediate steps to pay
Charles Barr all pay which he lost because we
laid him off on April 14, 1968, plus interest.
WE WILL NOT threaten to close our Mattoon
terminal or to transfer the movement of traffic
from the Mattoon terminal to some other ter-
minal if our employees choose to be
represented by a union or file grievances.
WE WILL restore to the Mattoon terminal the
movement of anhydrous ammonia heretofore
transferred to the Tuscola terminal, and will
pay any Mattoon driver, in addition to Barr
and Jones, all pay he may have lost by reason
of such transfer.
WE WILL NOT threaten our employees with
reprisal of any kind because of their union
sympathies, activities, or membership, or the
filing of grievances.
WE WILL NOT discourage membership in
Teamsters Local #26, International Brother-
hood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or
any other labor organization by discriminatori-
ly laying off and refusing to reinstate any of
our employees or by discriminating in any
other manner in regard to their hire or tenure
of employment or any term or condition of em-
ployment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce any employees in the
exercise of their right to self-organization, to
form labor organizations, to join or assist
Teamsters Local #26, International Brother-
hood 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 and protection, or to
refrain from any or all such activities, except to
the extent that such 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
modified by the Labor-Management Reporting
and Disclosure Act of 1959.
All employees are free to become, remain, or
refrain from becoming or remaining, members of
any labor organization.
BOWEN TRANSPORTS, INC.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecu- pliance with its provisions may be directed to the
tive days from the date of posting and must not be Board's Office, 1040 Boatmen's Bank Building, 314
altered , defaced, or covered by any other material. North Broadway, St. Louis, Missouri 63102,
Any questions concerning this notice or com- Telephone 314-622-4167.