Brooks Dodge Lumber Co.

National Labor Relations Board - Board Decisions

May 23, 1966

158 N.L.R.B. 1054 (N.L.R.B. 1966)

1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
- IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Local 980 set forth in section III, above , occurring in connec-
tion with the operations of the employer , described in section I, above, have a
close, intimate , and substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Local 980 has engaged in unfair labor practices ,' it will be
recommended that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and upon the 'entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Meadowsweet and Raffo Brothers constitute a single employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. Local 980 is a labor organization within the meaning of Section 2(5) of the
Act.
3. By picketing Meadowsweet at Santa Rosa, California , with an object of
forcing or requiring Meadowsweet to recognize or bargain with Local 980 as the
representative of its employees , although Local 980 has not been certified as such
representative and after Meadowsweet had lawfully recognized another labor
organization as such representative and a question concerning representation could
not appropriately be raised under Section 9(c) of the Act, Local 980 has com-
mitted unfair labor practices within the meaning of Section 8(b)(7)(A) of the
Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
C. W. Brooks and G . N. Dodge , Co-Partners, d/b/a Brooks Dodge
Lumber Co. and General Teamsters, Warehousemen , Cannery
Workers & Helpers Union Local 94, International Brother-
hood of Teamsters , Chauffeurs , Warehousemen ,& Helpers of
America. Case No. 2O-CA-3120. May 23,1966
DECISION AND ORDER
On February 16, 1966, Trial Examiner David Karasick issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in and were engaging in certain unfair labor prac-
tices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondents filed exceptions
to the Trial Examiner's Decision and a supporting brief.' The Gen-
eral Counsel filed an answering .brief as well as cross-exceptions and
"argument" in support thereof.
" The Respondents ' request for oral argument is hereby denied as the record, including
the exceptions and briefs , adequately presents the issues and positions of the parties.
158 NLRB No. 105.
BROOKS DODGE LUMBER CO. 1055
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with' this case to a,three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
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, cross-exceptions, briefs, and the
entire record in this- proceeding, and hereby adopts the findings 2
conclusions, and recommendations of the Trial Examiner, with the
modification noted below.
REMEDY
We do not adopt the Trial Examiner's recommended remedy inso-
far as'it limits reinstatement to a leasing operation of the Respond-
ents. There ibeing no warrant in the record for such limitation 3
we shall modify the Order to require that Respondents offer the em-
ployees involved herein reinstatement to their former or substantially
equivalent positions at Hanford, California, if there available, and if
not there available, at Montebello, California, without regard to the
manner of operation, leased or otherwise. In all other respects, we
adopt the recommended remedy and Order.
[The Board adopted the Trial Examiner's Recommended Order
with -the following modifications :
[1. Paragraph 2(d) of the Recommended Order is amended by
deleting "of leased equipment" as appears in line 3.
[2. The first full paragraph of the notice is amended to read as
follows :
[WE WILL offer immediately to the employees named below the
jobs they held before they were discharged, or jobs like them, at
2In adopting the Trial Examiner 's conclusion that Respondents violated Section 8(a) (1)
and (3 ) of the Act by discharging its Hanford drivers, canceling the Danell leases , elimi-
nating the Hanford fuel stop, and seeking the removal of equipment from Hanford to
Montebello , we do not rely on his finding that the foregoing acts were attempts on Re-
spondents ' part to evade their obligations under the Act to recognize and negotiate with
the Union . The issue of whether Respondents were obliged statutorily to bargain with
the Union is not presented by this record . We are satisfied , however , that by engaging
in the above-described conduct, Respondents discouraged the organizational activities of
of their employees , and that such conduct interfered with, restrained , and coerced em-
ployees in the exercise of rights guaranteed by Section 7 of the Act.
We correct the inadvertence appearing in footnote . of the Trial Examiner 's Decision,
by parenthesizing the figure $ 1,264.24 , so that it properly appears as a net loss and not.
a net profit
3 Consistent with our responsibility to fashion remedies which will best effectuate the
purposes of the Act , we believe it appropriate that the discriminatees be restored to their
former or-substantially equivalent positions without regard to whether available vehicles
are leased or owned by the Respondents . Thus, our remedy leaves Respondents free to
make such operational changes in their business as they deem necessary . In 'this regard,
we take notice that Respondents have, to some extent , already altered their operational
methods, in that at the time of hearing in this matter they had purchased at'least three
vehicles . ' - -
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hanford, California , if we resume our operations there, without
prejudice to their seniority and other rights and privileges; or,
if we do not resume our operations at Hanford , WE WILL offer
these employees immediate employment and substantially equiva-
lent jobs at Montebello , California , without prejudice to their
seniority and other rights and privileges , and WE WILL pay said
. employees their necessary traveling and moving expenses.
[3. A fifth paragraph is added to the notice , in conformance with
paragraph 1(c) of the Recommended Order which we adopt , to read
as follows :
[WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of their right to
self-organization , to form, join , or assist labor organizations, to
bargain collectively through representatives of their own choos-
ing, 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 of such activities , except to the extent
that such right may be affected by an agreement requiring mem-
bership 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.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding under Section 10(b)' of the National Labor Relations Act,
herein called the Act, was heard before Trial Examiner David Karasick in Fresno,
California , on June 23 and 24, 1965, pursuant to due notice . The complaint , issued
on April 1, 1965, based on a charge and first amended charge filed on Januuary 5
and March 17, 1965, respectively, by the Union involved in this case , alleged in
substance , that the Respondents involved herein had engaged in violations of
Section 8(a)(1) and (3) of the Act.
Upon the entire record in the case ,1 my observation of the witnesses , and briefs
filed by the General Counsel and the Respondents , I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
C. W. Brooks and G . N. Dodge , co-partners , d/b/a Brooks Dodge Lumber Co.,
herein called the Respondents , maintain their principal office in Montebello, Cal-
ifornia, where they are engaged in the sale of wholesale lumber and lumber prod-
ucts. During the past calendar year, purchases from suppliers and sales to
customers located outside California in each instance exceeded $50,000. The
Respondents concede, and I find , that they are engaged in commerce and in
operations affecting commerce within the meaning of Section 2 ( 6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
General Teamsters , Warehousemen, Cannery Workers & Helpers Union Local
94, International Brotherhood of Teamsters , Chauffeurs , Warehousemen & Helpers
of America , herein called the Union , is a labor organization within the meaning
of the Act.
1 The unopposed , posthearing motion of the General Counsel to correct the transcript of
hearing conforms to my recollection of the testimony and Is granted.
BROOKS DODGE LUMBER CO. 1057
M. THE UNFAIR LABOR PRACTICES ALLEGED
A. The facts
The issues in this case are: (1 ) whether the Respondents discriminated against
employees because of their union activities ; and (2 ) whether the Respondents
engaged in other acts and conduct which interfered with, restrained , or coerced the
employees.
The Respondents' principal office is located in Montebello , California, a com-
munity adjacent to Los Angeles. Lumber is purchased by the Respondents, pri-
marily from mills located in northern California , and is sold to customers located
in the Los Angeles area. Nearly all of the Respondents' business of buying and
selling lumber is conducted by telephone.
At all times relevant to this proceeding,'the Respondents were parties to annual
lease agreements with various lessors of trucking equipment. Earl Danell,2 the
largest of these lessors leased nine trucks to the Respondents . The Respondents
leased two trucks from another lessor and one truck each from five additional
lessors. The Respondents have no garage or maintenance facility in Montebello
and the drivers of their trucks live in the Los Angeles area and follow the practice
of parking their equipment in front of their homes. Danell, however, whose
trucks were the newest and most efficient equipment leased by the Respondents,
had an understanding with them that the nine trucks which they leased would be
operated out of his yard in Hanford, California, located some 200 miles north of
Montebello where their service and maintenance would be under his control.3
The drivers of these trucks lived in the Hanford area.
Until April, all drivers followed the practice of calling Robert Turner, assistant
manager of the Respondents, in the Montebello office, for further dispatching
instructions, after they had delivered a load of lumber. After April, the practice
was changed as to the Hanford drivers who were thereafter given their assignments
Hanford by Danell, who in turn had received them from Turner. The drivers of
Danell's trucks, and the drivers of the trucks leased from other truckers were
employees of the Respondents. In addition to maintaining and servicing the trucks
which he leased to the Respondents at his own yard in Hanford, Danell was able to
supply fuel for the trucks at a saving to the Respondents of at least 11/2 cents per
gallon and from the time he first began to lease equipment to the Respondents his
trucks were fueled at his yard. After April or May, the Respondents directed that
the trucks leased by them from other lessors also stop at Danell's yard for fuel on
their way north for lumber and on their return to Los Angeles. - '
Shortly before Thanksgiving 1964,4 Dorwin Fugate, Jerry Underwood, Arthur
Cooper, and Gleed Goodrick, all of whom lived in the Hanford area and drove
Danell's trucks for the Respondents, discussed the advisability of joining a union
and agreed that the four of them would visit the Union together. About Novem-
ber 24, Fugate, Underwood, and Cooper went to the Union's office. Goodrick
did not accompany them since he was working on that day. The other three
employees signed union authorization cards and were given additional cards for
distribution to the other Hanford drivers. Shortly thereafter, five additional author-
ization cards signed by employees Goodrick, Junior L. Polston,5 Robert James
Tyler, William D. Hite,s and William J. Wilhite, Jr., were delivered to the Union.
Upon being informed that there were only 10 employees, including I relief driver
and 1 service man, at Hanford, the Union wrote to the Respondents on Decem-
ber 3, stating that a substantial majority of the Hanford employees had designated
the Union to represent them and requesting that the Respondents meet and nego-
tiate. The Respondents made no reply to this letter.
On December 8, Assistant Manager Turner called Earl Danell in Hanford and
told him of the letter which the Respondents had received from the Union. Turner
asked Danell to find out which of the drivers had signed with the Union and
which had not. Danell told his wife, who had been present at the time the call
was received, of Turner's request. During the course of that day and the day
following, either Danell or his wife called by telephone or personally spoke to
2 Also referred to in the record as Earle C. Danell.
8 Danell testified that he valued each of his trucks at between $20,000 and $25,000.
All dates hereafter refer to 1964 unless otherwise indicated.
s Also referred to in the record as Junior C. Pollston.
9 Also referred to in the record as William P. Hite.
221-731-67-vol. 158-68
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
each of the Hanford drivers, with the exception of Goodrick who was out of
town, and asked each whether he had signed a union . membership card. On
December 9, Danell called Turner. He informed Turner that he had learned that
all of the Hanford drivers except his two sons, who at that time were employed as
drivers by the Respondents, had signed union membership cards.
On December 8, or ,a day or two thereafter,? Turner informed Clifford Brooks,
one of the Respondents, who had been hospitalized because of a heart attack
between November 21 and December 3 and thereafter was convalescing at his
home, about the Union. According to Brooks, Turner told him "that we were
having trouble keeping these trucks loaded; that possibly there was going to be
some changes,made; that there was a union problem." Brooks testified that he
told Turner that he should not "have anything to say about this thing at all, either
to anybody or any union organizers, whoever they happened to be." He further
testified that he also told Turner on this occasion to close the fuel stop at Hanford,
not to renew four of the leases with Danell which were expiring at the end of
the month and tell Danell to remove his remaining five trucks under lease to the
Respondents from Hanford to Los Angeles.
On December 17, the Union's attorney sent a letter to the attorneys for the
Respondents, again stating that the Union represented a majority of the Hanford
employees and again requesting recognition as their bargaining representative. This
letter also was never answered by the Respondents .8
On December 21, six of the employees, and on December 30, the remaining two
of the employees who had signed union membership cards received termination
notices from the Respondents.9
On December 21, Danell also received a letter from the Respondents, dated
December 14, notifying him that the leases on four of his trucks would not be
extended beyond their expiration date of December 31. He was also notified by
the Respondents that the fuel stop at Hanford would be abolished as of the same
date.10 Between December 21 and January 1, the Respondents informed Danell
that they wished him to move his five remaining trucks to Los Angeles. Instead,
Danell canceled the five leases for these trucks since their removal to Los Angeles
would mean that he would no longer be able to control their repair and
maintenance.
B. Concluding findings
The evidence shows that the Respondents made no reply to the Union's requests
for recognition on December 3 and 17. Instead, through Danell, they questioned
each of the Hanford drivers available as to whether or not he had joined the Union.
After learning that all of the employees, except Danell's two sons, had become
union members, they discharged the employees; canceled four of the Danell leases
which would have automatically renewed for annual terms beginning Decem-
ber 31; directed Danell to remove five other trucks, covered by existing leases
which extended beyond December 31, from Hanford to Los Angeles, contrary to
the understanding and arrangement which had existed between Danell and the
Respondents prior to that time; and eliminated the Hanford fuel stop which had
been in existence from the time Danell and the Respondents had first entered into
leasing agreements.
The Respondents contend that Goodrick and Underwood were discharged for
cause and that the remaining Hanford drivers were terminated because of economic
considerations.
7 Turner testified that the conversation in question occurred between December 7 and
10, but in any event after he had already spoken to Danell about the letter the Respond-
ents had received from the Union.
8 On December 23, the Union filed a petition with the Board in Case No. 20-RC-6193,
asking to be certified as the bargaining representative of a unit comprising the Hanford
drivers.
8 Except for the two sons of Danell who also received termination notices, these ap-
parently were all of the employees based at the Hanford yard. Two of the termination
notices of December 21, those of Underwood and Goodrick, were effective as of December 18,
while the remainder (those of Cooper, Tyler, Fugate, and Wilhite) were effective at the
end of the month. Employees Polston and Hite received termination notices dated
December 30, effective as of that date.
10 Although Robert Turner testified that he wrote a letter to that effect to Danell, the
letter itself was not offered in evidence.
BROOKS DODGE LUMBER CO . 1059
I.-The discharge of Gleed Goodrick
Gleed- Goodrick began to work for the Respondents as a truckdriver out of
the Hanford yard on April 4, 1964. He was, one of the four employees who first
discussed the advisability of joining a union and had agreed to visit the. union
office, together with the other three employees involved, shortly before Thanks-
giving but did not do so because he was working that day.
Goodrick testified that on Thanksgiving Day, November 26, he went to Danell's
office in Hanford to see if he could get an emergency leave of absence because
he had received word.that his sister in San Diego was ill; that no one was at the
office; and that he asked his wife to call Danell the next morning and tell him
that Goodrick had to go to San Diego because of the illness of his- sister. On the
following day, at approximately 5 or 6 o'clock, Mrs. Goodrick testified, she called
and spoke to Mrs. Danell and informed her that Goodrick had been called to
San Diego because of the illness of his sister and that he would be gone for a
while; that Mrs. Danell replied that it would be all right; that after he had been
gone for 2 weeks, her husband called and told her that it looked as though he
would be gone for another week and asked her to so inform Danell; that on the
following day, Mrs. Goodrick called Danell, was informed- by one of his daughters
that he was not at home, and left a message that Goodrick would be gone from
work for a while longer.
Mrs. Danell denied that Mrs. Goodrick had ever called her, as the latter testified,
and Danell denied that he had ever received a message either from his wife or
from either of his daughters regarding a call from Mrs. Goodrick concerning her
husband's absence. According to Danell, Goodrick's wife called him the Sunday
evening following Thanksgiving, November 29, and told him that Goodrick had
gone to see his sister who was sick, that she did not know how long he would be
gone, and that she was to have called him on Thursday but had forgotten. Neither
of Danell's two daughters was called to testify. From the manner in which the
testimony of these witnesses was delivered, I am inclined to the belief that the
recollections of Goodrick and his wife are the more accurate and I find that the
conversations occurred in the manner related by them.
On December 10, a day or two after he had learned that all of the drivers
except his two sons had joined the Union, Danell sent the following note to
Turner:
Goodrick hasn't reported for work in two weeks; nor has he called to explain
why. Surely, this is good enough reason to eliminate him.
Goodrick returned from San Diego to Hanford on December 19. On Decem-
ber 21, he received a letter from Turner, dated December 18, which stated as
follows:
Since you have not reported for more than two weeks. We consider that you
are no longer in our employ. [Punctuation in original.]
The Respondents contend that, upon Danell's recommendation, Goodrick was
discharged because he failed to report his absence. As noted above, however,
Danell admitted that on November 29, Mrs. Goodrick had informed him that
her husband would be unavailable for work for an indefinite period because of
the illness of his sister in San Diego. He further admitted that during the period
of Goodrick's absence there were "trucks sitting in the yard all the time," that
dispatching was "very, very slow" and that it was not necessary for Goodrick to
have been there. When asked to explain why he then recommended that Good-
rick be discharged, Danell testified, "if you was working for me, and you was
gone two or three weeks without telling me you were going, I would can you, too,
if you were." If Danell meant by this testimony that he had recommended the
discharge of Goodrick because the latter had failed to tell him beforehand that
he would be absent from work, that was not the reason he assigned to Turner in
the letter he wrote recommending that Goodrick be discharged, nor was it the
reason asserted by Turner in his letter of Demember 18 to Goodrick. If, on ^ the
other hand, his testimony is taken to mean that Goodrick was discharged because
he had, not reported .for work for 2 weeks without explanation, it is contradictory
to his admission that Mrs. Goodrick had called him on the evening of Novem-
ber 29 and informed him of Goodrick's absence, the reason for it, and the fact
that it would be for an indefinite period. Danell's assertion that Goodrick had
been absent for 2 weeks without explanation is thus contrary to the facts and his
recommendation on December 10 that this provided a "good enough reason to
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eliminate him" was admittedly not based upon business necessity. The Respond-
ents knew, as the result of the interrogation of Goodrick's fellow employees on,
December 8 and 9, that Goodrick had joined the Union together with all the other
Hanford drivers, except the two sons of Danell.
On the basis of the foregoing facts and upon the record as a whole, I am con-
vinced and find that Gleed Goodrick was discharged by the Respondents on Decem-
ber 18, 1964, not for the reasons advanced by them, but because they knew or
believed that he had engaged in union activities.
2. The discharge of Jerry Underwood
Jerry Underwood -began working in August 1963 as a driver of one of Danell's
trucks at Hanford. He was one of the four employees who originally discussed
the advisability of joining a union and he, together with Fugate and Cooper, vis-
ited the offices of the Union a day or two before Thanksgiving. On December 8,
he was asked by Earl Danell if he had joined the Union, admitted that he had,
and told Danell that all of the drivers except Danell's two sons had joined. There-
after, he received no further work assignments. However, the truck which he
regularly drove was taken out between that time and the time he was discharged
on at least one occasion by James McGowan, one of the Los Angeles drivers
who was laid off on December 30 and rehired on January 8, 1965.
According to Dane11, Underwood was running low on oil and was not checking
the air pressure of the tires on his truck, and Danell therefore called Turner and
told him that he did not want Underwood to continue to operate his truck and
Turner asked him to put his request in writing. Danell then sent the following
letter, dated Demember 5, to the Respondents:
I have found the 1963 International Tractor, which is leased to you and
driven by Jerry Underwood, low on oil on too many occasions. This driver
is also negligent in running when part of the clearance lights are out on the
trailers. I do not consider him a qualified or safe driver.
On December 21, Underwood received the following letter, signed by Turner
and dated December 18:
Due to repeated times of running the truck low on oil and driving with all
clearance lights not burning on the trailers, we must terminate your employ-
ment as of this date.
The chance of damage to the vehicles and safety is too much for us to assume
under these conditions.
Danell testified that he began keeping a written record in August of the times
he found Underwood's truck low on oil and that he found that this happened
about once a week for a period of about 8 weeks. No such record was offered
in evidence by the Respondents, however. On direct examination Danell testi-
fied he spoke to Underwood about this matter at least once or twice but on
cross-examination testified that he spoke to Underwood on two occasions, the first
time probably in September and the second time he first estimated as being about
3 weeks later and thereafter stated that it was probably in November but that he
could not recall when it was.
Underwood, who was one of the oldest drivers of the Respondents in point of
service, testified without contradiction that when he began to work for the Respond-
ents, Danell would fuel and oil the trucks; that several times when he was about
to leave on a trip, Underwood found that this had not been done; that he then
told Danell that he would take care of this himself and he would then know that
it had been done; that Danell had said that Underwood could attend to the matter
either when coming into the yard or when going out; and that Underwood there-
after followed the practice of checking the oil before departing on a trip. He
denied that Danell had ever told him that he was running low on oil or had ever
complained to him about the way he took care of his truck. He further testified
that he had never driven without adequate clearance lights, that he had never been
cited for doing so by the State highway patrol or the city police, and that on three
occasions it had been necessary for him to lay off on a trip because the clearance
lights on his truck were not working.
The Respondents offered no evidence to support their contention that Under-
wood had ever driven without adequate clearance lights; and although Danell
mentioned this in his letter to Turner, he did not refer to it in his testimony as
BROODS DODGE LUMBER CO 1061
one of the reasons he gave Turner when he called him to recommend that Under-
wood be discharged Although Danell testified that one of the considerations
which had induced him to call Turner on that occasion was that Underwood had
failed to maintain the proper air pressure in the tires on his truck, neither Danell's
letter to Turner nor Turner's letter to Underwood made any mention of that
matter as a reason for Underwood's termination
With respect to running low on oil, Danell testified that a truck engine costs
$6,000 and that it could be ruined completely if the truck were run without suffi-
cient oil It is difficult to believe that Danell would have tolerated, for so long
a period of time as he testified, the threat of damage or destruction to so expensive
a piece of equipment He did not explain why he had waited until September to
talk to Underwood about the matter for the first time when he had begun keeping
a written record in August, or why he waited to speak to Underwood about the
matter on the second occasion until November when Underwood during that
period continued to run low on oil once a week for a period of about 8 weeks,
or why he waited until December to recommend Underwood's discharge Based
upon the foregoing facts and my observation of the demeanor of Danell and
Underwood as witnesses, I do not believe that Underwood was discharged for the
reasons asserted by the Respondents and I credit Undeiwood's denials that Danell
had ever complained to him about the care he gave his truck or that he had in
fact ever run without sufficient oil or with inadequate clearance lights
Counsel for the General Counsel contends that Danell's letter to Turner dated
December 5 and requesting the discharge of Underwood was actually sent in the
same envelope in which Danell enclosed his note to Turner regarding the termina-
tion of Goodrick on December 10 Whether that is so or not, the fact remains
that the Respondents discharged Underwood on December 18, as shown by Tur-
ners letter of that date, a week or more after they knew of Underwood's union
activities and a day after the Union had sent its second written request for recog-
nition which the Respondents ignored
Upon the basis of the foregoing facts and upon the record as a whole, I find that
the Respondents discharged Jerry Underwood on December 18, 1964, not for the
reasons advanced by them, but because he had engaged in union activities
3 The termination of the remaining Hanford drivers
Clifford Brooks, one of the Respondents herein, testified that he first noticed that
the volume of business and profits was falling off in September, that there was a
mild pickup in October and that business again declined in November The record
shows that sales and profits or losses for the months of August, September, Octo-
ber, and November 1964 were not significantly different from the same months
during the preceding year Indeed, during October 1964, the Respondents realized
a substantially greater profit than they had during the same month in 1963 and
in November 1964 they experienced a profit of $19 as compared with a loss of
$1,264 during the same month in the preceding year These figures, when con-
sidered in the light of the fact that the winter season is a poor one for the lumber
industry in northern California, fail to support the Respondents' contention that,
despite Brooks' illness, business conditions were substantially worse during that
season of the year than they would normally be Nor do the figures support the
testimony of Brooks that the decline in business was attributable to a drop in
home building in southern California which he declared at one point in his testi-
mony constituted 85 or 90 percent of the Respondents' business and at another
point in his testimony as 35 percent"
u The figures in question are as follows
Aug Sept Oct Nov
1963
Sales $348 817 57 $258 105 53 $328 136 66 $229 081 90
Net Profit (loss) 5 339 44 2 038 83 1 823 95 1 264 24
1964
Sales 311 654 22 251 616 66 `90 849 '8 225 318 58
Net Profit (loss) 3 568 01 (467 46) 4 597 65 19 25
I
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondents failed to explain why they entered into the last of the nine
annual leases they held with Danell as late as September 10, if, as Brooks testified,
he had noticed at that time that volume and profits were declining and there, were
not enough loads for the , trucks- to carry. Nor did they explain why three leases
with truckers other than Danell which also had been in effect for a full year as
of December 31 were thereafter renewed and that only Danell's leases were can-
celed, even though the undenied evidence shows that Danell's trucks were 10
years newer , on the average, than the trucks of the other lessors and that Brooks
regarded Danell 's trucks as the most efficient of all those which were leased by
the Respondents . Each of the four leases with Danell which the Respondents
canceled on December 31 contained a provision requiring the leasee to give 90
days' written notice of cancellation . No such notice, however, was given by the
Respondents.
In addition , although only four leases were canceled in the letter received by
Danell on December 21, the Respondents at the same time discharged six employ-
ees., It had- been the practice to assign a given truck to a particular employee,
and in accordance with this practice , Cooper, Underwood , Goodrick, and Tyler
were the employees who had driven the trucks covered by the leases which were
canceled . Not only they, however , but in addition Fugate and Wilhite received
letters on December 21 notifying them that they were being discharged; and on
December 30, Polston and Hite 12 received similar letters.
Despite the fact that the Respondents claim that it was necessary to lay off the
10 Hanford drivers because business had declined , the evidence shows that the
Respondents hired 10 drivers between December 7, 1964 , and February 1, 1965,
all of whom, except 1, were new employees . 13 Seven of these drivers were -hired
on or after January 6, 1965, following the discharge of the Hanford drivers; and
all, but possibly 1 of the 10 drivers, were hired after the Respondents became
aware of the fact that the employees at Hanford were engaged in union activities.14
Moreover , six more new employees were hired thereafter between February 8
and May 1, 1965.
Turner first testified that he had told Danell that the Respondents wanted him
to move the 5 remaining trucks to Los Angeles for the purpose of permitting the
Respondents to run off the annual 85,000-mile guarantee contained in the leases.
On cross-examination , however, he testified that the only reason he mentioned to
Danell for requesting that the trucks be moved was because "we would like to
get them together where it [ sic] would be more easily handled."
With respect to the mileage guarantee , the record shows that, in addition to
Danell, :the Respondents at this time had similar leases with six other truckers
covering seven trucks. Of these , three were in effect for a full year as of Decem-
ber 31 and were thereafter renewed . 15 Each of the 3 leases so renewed guaranteed
that the Respondents would run the equipment a minimum of 85 ,000 miles per
12 A list of employees as of December 1 and those hired thereafter to May 31, 1965,
introduced as an exhibit-by the Respondents , fails to include the names of Goodrick
and Hite. - - -
Is The one exception was James McGowan who had worked for the Respondents from
February 13 to December 30 and was rehired on January 8, 1965 . In addition to the
Hanford drivers, seven employees were terminated during this period.
14 This is based on the assumption that the Union 's first request for recognition which
the record shows was sent to the- Respondents on December 3, but fails to show when it
was received , did not come to their attention until December 8, when Turner called Danell,
as noted above.
15 The names of the lessors and the effective dates of the leases are as follows: --
Lessor Effective Date
Danell----------------------------------------- Jan. 1, 1964 ( 4 leases)
Danell----------------------------------------- Apr. 1, 1964 ( 2 leases)
Danell----------------------------------------- July 1, 1964
Danell----------------------------------------- Aug. 20, 1964
Danell----------------------------------------- Sept. 10, 1964
M. Lee Daniels---------------------------------- Jan. 1, 1964 (2 leases)
Donald R . Stanfield-----------------------------. Jan. 1, 1964
Lewis D. Craig---------------------------------. Mar. 19, 1964
Douglas L. Craig-------------------------------- May 20, 1964
Edward Rodell---------------------------------. May 27, 1964
Victor. Eels------------------------------------- June 10, 1964
BROOKS DODGE LUMBER CO. 1063
year while 3 of the remaining 5 leases with Danell not only had been entered
into at later dates and thus had longer periods still to run at that time but also
guaranteed only 75,000 miles per annum.
Brooks testified that the Respondents wished to have Danell remove his trucks
to Los Angeles for a different reason than that assigned by Turner. According
to Brooks, the arrangement at Hanford was feasible as long as Turner "was able
to relay messages with one phone call . . . but without the fuel stop, these trucks
would have to be kept like my own leased trucks, and leased equipment in front
of somebody's house."
Notwithstanding this testimony, however, the Respondents made no showing
that any relationship existed between the presence or absence of the fueling facil-
ities at Hanford and the feasibility of keeping Danell's trucks there instead of in
Los Angeles. Nor does the evidence show that dispatching Danell's trucks from
Hanford added appreciably to the cost of telephone service utilized by the Respond-
ents in the conduct of their business.
Turner testified that as an additional reason for "getting rid of the trucks at
Hanford," the fueling stop there was abolished because it was "unsatisfactory as
far as our other leased trucks were concerned." Hanford is located some 13 or
14 miles off the main highway traversed by the trucks leased by the Respondents.
If the fuel stop at Hanford was inconvenient for the use of the seven trucks of
the other lessors because of its location or because it had no grease rack or eating
facilities, it was certainly convenient for the nine trucks owned by Danell; and
fueling at that location represented a saving of at least 11/z cents per gallon to
the Respondents. Moreover, if the Respondents nevertheless had come to the
conclusion that fueling at Hanford was not satisfactory, they could have directed
the Hanford employees as well as the Los Angeles drivers to stop for fuel wherever
the Respondents designated since all the trucks covered the same routes. Thus,
here also, no reasonable relationship was shown to exist between cancellation of
the Hanford fuel stop and cancellation of four of Danell's leases and directions
to remove his remaining five trucks to Los Angeles.
As for Turner's assertion that the trucks would be more easily handled if
removed to Los Angeles, the record shows, as noted previously, that the Respond-
ents had no garage or maintenance facilities in Los Angeles and that the leased
trucks which they operated there were parked in front of the homes of their respec-
tive drivers. This meant, not only that each driver found it necessary to call
the office of the Respondents for dispatching instructions whenever a load of lum-
ber had been delivered, but also required the driver to bring his truck to whatever
filling station he could find for fuel, oil, and minor repairs. But even assuming
that keeping Danell's trucks in the Los Angeles area would prove more convenient
for the Respondents, the evidence shows that they did not consider this to be a
problem and had been willing to operate his newer and more efficient equipment
out of Hanford until they became aware of the fact that the Hanford drivers had
joined the Union.
Finally, the Respondents contend that it was necessary to cancel the four leases
with Danell because of an opinion and order of the Public Utilities Commission
of the State of California which was issued on November 30 in a case involving
some of the lessors, other than Danell, with whom the Respondents had been doing
business . Nothing contained in that opinion and order, however, indicates why
it was necessary for the Respondents either to cancel the four leases with Danell
or to change their past arrangement and practice with respect to the remaining
five trucks by requiring them to be brought to Los Angeles rather than operating
out of Hanford. The opinion and order in question dealt only with the question
of the adequacy of the rates charged by the lessors involved and the validity of
the leases as such was not an issue in that proceeding. Indeed, Brooks admitted
that the Respondents have continued to operate leased equipment since the opinion
and order of the commission was issued. Although he testified that these leases
had never been presented to the commission and that he was not "positive" .about
them, he failed to explain why he could not operate under the same' arrangement
with Danell.
Brooks testified that he retained leases with Daniels and Craig, two of the lessors
involved in the commission proceedings, after the opinion and order had been
issued because these two truckers owed him money. No such reason was advanced,
however, to explain'why the Respondents continued to operate under lease arrange-
ments with other truckers who were also involved in such proceedings after the
date of the opinion and order in question and. why similar arrangements could
not have been made with Danell.
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For the foregoing reasons and upon the record as a whole, I am convinced and
find that the Respondents discharged the drivers in Hanford; canceled the four
leases with Danell; requested that he remove the equipment covered by the five
remaining leases to Los Angeles; and eliminated the Hanford fuel stop, not for the
reasons asserted by them,16 but in an attempt to evade their obligation under the
Act to recognize and negotiate with the Union and that by discharging Jerry
Underwood and Gleed Goodrick on December 18, 1964; Junior C. Polston and
William D. Hite on December 30, 1964; and Arthur Cooper, Dorwin Fugate,
Robert J. Tyler, and William G. Wilhite, Jr., on December 31, 1964,17 the Respond-
ents violated Section 8(a)(3) and (1) of the Act.18 In addition, the conduct of
Danell and his wife on December 8 and 9, 1964, pursuant to the instructions of
Turner, in interrogating each of the drivers as to their union membership violated
Section 8(a)(1) of the Act.is
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in
connection with the operations of the Respondents described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor prac-
tices, I will recommend that they cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
Having found that the Respondents discharged the employees named in Appen-
dix A in violation of Section 8(a)(3) and (1) of the Act, I shall recommend
that the Respondents offer to said employees reinstatement to their former or
substantially equivalent positions at Hanford, California, if leased trucks are there
available, and, if not there available, at Los Angeles, California, with the necessary
traveling and moving expenses, and without prejudice to their seniority and other
rights and privileges, dismissing, if necessary, all persons now employed by the
Respondents who were not employees of the Respondents on December 31, 1964.
I shall recommend that the Respondents make whole the employees named in
Appendix A for any loss of pay they may have suffered by reason of the Respond-
ents' discrimination, by payment to each of them the sum of money equal to the
amount that each would normally have earned as wages from the date of such
discrimination to the date of the offer of reinstatement, less his net earnings during
said period, the backpay to be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90 NLRB 289. Interest
101n arriving at this conclusion my inquiry has been limited solely to the question
whether the reasons advanced by the Respondents in explanation of their conduct are
credible in light of the entire evidence, for it is neither my function nor my purpose to
substitute my judgment for that of the Respondents in the conduct of their business
affairs or to pass on the wisdom of the decisions reached by them in conducting such
affairs.
17 No allegation was made in the complaint as to the termination of Danell's two sons
and no issue was raised with respect to them.
Is Textile Workers Union of America V. Darlington Manufacturing Company, et al., 380
U.S. 263, cited by the Respondents in their brief, is inapposite since, apart from any
question as to unit which is not an issue in this proceeding, the record shows that the
business of the Respondents is conducted as a single, unified operation and that the
discriminatory discharge of the Hanford employees constituted neither a partial nor an
entire closing of that business.
10 The General Counsel contends that statements made by William Danell, one of Danell's
sons, on December 22 to Fugate to the effect that the employees had been discharged
because they had joined the Union and that it had been known that Fugate, Underwood,
and Goodrick had originally gone to the Union were coercive and are attributable to the
Respondents on the theory that Danell was acting in a management capacity and that
the statements of his son therefore represented the views of management to the em-
ployees. I regard it as unnecessary to pass on this contention since in any event it
would add nothing to the order recommended hereafter. Nor do I rely on the state-
ments in question as proof of knowledge or motive on the part of the Respondents in
terminating the Hanford employees.
BROOKS DODGE LUMBER CO 1065
at the rate of 6 percent per annum shall be added to backpay to be computed in
the manner set forth in Isis Plumbing and Heating Co, 138 NLRB 716 I shall
also recommend that the Respondents preserve and, upon request make all per
tinent records available to the Board and its agents
The unfair labor practices committed in this case strike at the very heart of the
Act N L R B v Entwistle Mfg Co, 120 F 2d 532 (C A 4) The inference is
therefore warranted that the Respondents maintain an attitude of opposition to the
fundamental purposes of the Act designed to protect the rights of the employees
It will accordingly be recommended that the Respondents cease and desist from
infringing in any manner on the rights guaranteed in Section 7 of the Act
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and upon the entire record in
this proceeding, I make the following conclusions of law
I The Union is, and has been at all times material to the issues in this proceed-
ing, a labor organization within the meaning of Section 2(5) of the Act
2 The Respondents are, and have been at all times material to the issues in this
proceeding, an employer, within the meaning of Section 2(2) of the Act
3 By discriminating with respect to the hire and tenure of employment of the
employees named in Appendix A and and thereby discouraging membership in a
labor organization, the Respondents have engaged in unfair labor practices, within
the meaning of Section 8(a)(3) of the Act
4 By interfering with, restraining, and coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act, the Respondents have engaged in
unfair labor practices, within the meaning of Section 8(a)(1) of the Act
5 The aforesaid unfair labor practices are unfair labor practice, affecting com
merce within the meaning of Section 2(6) and (7) of the Act
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and upon the entire record in
this proceeding, I recommend that the Respondents, C W Brooks and G N
Dodge, co-partners, d/b/a Brooks Dodge Lumber Co, Montebi.,llo, California,
their officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Interrogating employees with respect to their union membership or activities
or the identity of other employees engaged in such activities in a manner consti-
tuting interference, restraint, or coercion in violation of Section 8(a)(1) of the
Act
(b) Discouraging membership in General Teamsters, Warehon,emen, Cannery
Workers & Helpeis Union Local 94, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, or any other labor organization
of its employees, by discharging or in any other manner discriminating against
them in regard to hire, tenure of employment, or any term or condition of employ-
ment, except as authorized in Section 8(a)(3) of the Act
(c) In any other manner inteifering with, restraining, or coercing its employees
in the exercise of their right to self organization, to form labor organizations, to
join or assist General Teamsters, Warehousemen, Cannery Workers & Helpers
Union Local 94, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, or any other labor organization, to bargain collectively
through representatives of their own choosing, or to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion , or to refrain from any or all such activities except to the i xtent that such
right may 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
2 Take the following affirmative action which is necessary to effectuate the
policies of the Act
(a) Offer the employees named in Appendix A immediate and full remstate-
ment to their former or substantially equivalent positions without prejudice to
their seniority or other rights and privileges , and make all the employees named
in Appendix A whole for any loss of pay suffered, in accordance with the method
set forth above in the section entitled "The Remedy "
(b) Preserve and, upon request , make available to the Board, or its agents, for
examination and copying , all payroll records, social security p iyment records,
timecards, personnel records and reports, and all other records ni cessary to ana-
lyze the amounts of backpay due
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify the employees named in Appendix A if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military
Training and Service Act, as amended , after discharge from the Armed Forces.
(d) Post at conspicuous places at its usual place of business in Montebello, Cali-
fornia, where drivers are normally dispatched and in Hanford, California, if drivers
of leased equipment are there being dispatched , including all places where notices to
drivers are customarily posted, copies of the attached notice 20 marked "Appendix
A." 21 Copies of said notice to be furnished by the Regional Director for Region
20 shall, after being duly signed by an authorized representative of the Respondents,
be posted by them immediately upon receipt thereof , and be maintained for 60 con-
secutive days thereafter, in such conspicuous places. Reasonable steps shall be
taken by the Respondents to insure that said notices are not altered , defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 20, in writing , within 20 days from
receipt by the Respondents of a copy of this Decision , what steps the Respondents
have taken to comply herewith 22
20 Since notices are customarily framed In the language of the statute and because of
their technical nature are often difficult for employees to understand , I am recommending
that the notice in this case embody the simplified form which appears in Appendix A
211n the event that this Recommended Order be 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 . If the Board's Order is enforced by a decree of a United
States Court of Appeals , the notice shall be further amended by the substitution of the
words "a Decree of the United States Court of Appeals , Enforcing an Order" for the
words "a Decision and Order."
„In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify the aforesaid Regional Director , in writing , within
10 days from the date of this Order , what steps they have taken to comply herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL offer immediately to the employees named below the jobs they
held before they were discharged , or jobs like them, at Hanford , California, if
leased trucks are there available, without prejudice to their seniority and other
rights and privileges; or, if leased trucks are not available at Hanford, WE WILL
offer these employees immediate employment and substantially equivalent jobs
at Los Angeles, California , without prejudice to their seniority and other
rights and privileges, and WE WILL pay said employees their necessary traveling
and moving expenses.
WE WILL give each of the employees named below whatever backpay he has
lost.
Arthur Cooper
Dorwin Fugate
Gleed Goodrick
William P. Hite
WE WILL NOT question our employees
or activities or the union membership or
Junior Polston
Robert J. Tyler
Jerry Underwood
William J. Wilhite, Jr.
about their own union membership
activities of their fellow employees.
All our employees have the right to join or assist or not to join or assist General
Teamsters , Warehousemen , Cannery Workers & Helpers Union Local 94, Interna-
tional Brotherhood of Teamsters , Chauffeurs , Warehousemen & Helpers of America,
or any other union.
C. W. BROOKS AND G. N. DODGE, CO-PARTNERS,
D/B/A BROOKS DODGE LUMBER CO.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) ( Title)
PIONEER NATURAL GAS COMPANY 1067
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon appli-
cation and in accordance with the Selective Service Act and Universal Military
Training and Service Act, as amended, after discharge from the Armed Forces.
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, 450
Golden Gate Avenue , Box 36047 , San Francisco , California, Telephone No.
556-0335.
Pioneer Natural Gas Company and International Union of Oper -
ating Engineers and International Union of Operating Engi-
neers, Local No. 340, AFL-CIO. Cases Nos. 16-CA-2151-2 and
16-CA-2358. May 24,1966
DECISION AND ORDER
On December 6, 1965, Trial Examiner Lowell Goerlich issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. The Trial Examiner also recommended that the
complaint be dismissed insofar as it alleged the commission of certain
unfair labor practices prior to the execution of an informal settle-
ment agreement, and insofar as it alleged violations of the National
Labor Relations Act other than those found in his Decision. There-
after, the Respondent and General Counsel filed exceptions to the
Trial Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its power in connection with these cases to a three-member
panel [Members Fanning, Brown, and Jenkins].
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 Deci-
sion, the exceptions and briefs, and the entire record in these cases,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, as modified herein.
The amended consolidated complaint alleges that Respondent vio-
lated a settlement agreement by committing unfair labor practices
after the approval of such settlement agreement in Case No. 16-
CA-2151-2 by the Regional Director for Region 16; and, that cer-
tain presettlement conduct and certain postsettlement conduct consti-
tute unremedied violations of the Act.
158 NLRB No. 101.