Bulk Haulers, Inc.

National Labor Relations Board - Board Decisions

Nov 22, 1972

200 N.L.R.B. 389 (N.L.R.B. 1972)

BULK HAULERS
Bulk Haulers , Inc. and Chauffeurs , Teamsters and
Helpers, Local 633 of New Hampshire , affiliated
with international Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca. Case 1-CA-7998
November 22, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On June 9, 1972, Administrative Law Judge'
Sydney S. Asher issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed a brief in support of the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed.
' The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 We agree with the finding below that Steve Monas is not a supervisor
within the meaning of the Act We note that Monas was the senior
employee and the most "experienced" worker in the warehouse , and that he
had been given the title of leadman . However, the uncontradicted testimony
of Law and Thernaulta indicates that Monas performs routine warehouse
work, is paid hourly as are the other warehouse employees; does not have
the authority to hire , fire, or discipline or effectively to recommend such
action, does not evaluate the employees ' work ; is not responsible for the
daily operation of the warehouse , and makes no managerial decisions With
regard to this question we attach no significance to Themaulta's ambiguous
testimony that Monas could "possibly" grant time off to sick employees,
since the record is clear that this is the normal duty of Warehouse
Supervisor Charles McKay
TRIAL EXAMINER'S DECISION
SYDNEY S. ASHER, Trial Examiner: On December 14,
1971, Chauffeurs , Teamsters and Helpers, Local 633 of
i In its brief, the Respondent states that the admissibility of Resp. Exit
12 for identification "was left open." This is erroneous . On page 354 of the
transcript the exhibit was rejected . This ruling is reflected in the official
reporter's stamp which the exhibit bears
2 The Respondent is, and at all material times has been, a New
Hampshire corporation with its principal office and place of business in
389
New Hampshire , affiliated with International Brotherhood
of Teamsters , Chauffeurs, Warehousemen and Helpers of
America, herein called the Union , filed charges against
Bulk Haulers , Inc., Nashua , New Hampshire , herein called
the Respondent . Based on these charges, the General
Counsel of the National Labor Relations Board, herein
called the General Counsel, on January 31 , 1972, issued a
complaint alleging that since on or about December 3,
1971, the Respondent has interfered with , restrained, and
coerced its employees in certain specified respects; and
that the Respondent discharged Ronald V. Hall, an
employee, on or about December 9, 1971, and since then
has refused to reinstate him, because he joined or assisted
the Union or engaged in other concerted activities. It is
alleged that this conduct violated Section 8(a)(1) and (3) of
the National Labor Relations Act, as amended (29 U.S.C.
Sec. 151 , et seq.), herein called the Act . The Respondent
filed an answer admitting that it discharged Ronald V.
Hall, an employee , on or about December 9, 1971, and
since then has refused to reinstate him, but denying that it
did so for the reasons stated in the complaint, and denying
the commission of any unfair labor practices.
Upon due notice, a hearing was held before me on
various dates between March 21 and April 5, 1972, both
dates inclusive , at Nashua , New Hampshire . All parties
were represented and participated fully in the hearing. At
the close of the hearing the Respondent moved that the
complaint be dismissed for lack of a prima facie case.
Ruling on this motion was reserved . The motion is now
granted for the reasons set forth herein . After the close of
the hearing , the General Counsel and the Respondent filed
briefs, which have been carefully considered.
Upon the entire record ,' and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
A. Preliminary Matters
The complaint alleges, the answer admits, and it is found
that the Respondent is, and at all material times has been,
an employer engaged in commerce as defined in the Act,
and its operations meet the Board 's jurisdictional stand-
ards.2
The parties stipulated, and it is found, that the Union is,
and at all material times has been, a labor organization as
defined in the Act.
B. The Background
Law Motor Freight has been in existence for some time.
It maintains a place of business in Nashua , and is licensed
by the Interstate Commerce Commission, herein called the
ICC, as a common carrier. In December 1971, Law Motor
Nashua, New Hampshire It is an ICC licensed contract carrier perfornung
interstate freight transportation services . During the year prior to January
31, 1972, the Respondent's gross revenue from interstate operations
involving firms which themselves engaged in interstate commerce exceeded
$50,000.
200 NLRB No. 61
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Freight employed approximately 80 nonsupervisory work-
ers. Law Warehouses, Incorporated, has since 1955
maintained a commercial public warehouse in Nashua. In
December 1971 its working complement consisted of
approximately five nonsupervisory employees. The Res-
pondent, which is also based in Nashua, was incorporated
in 1964 and was certified by the ICC in 1970 as a contract
carrier. In December 1971 it employed approximately six
nonsupervisory employees, all of whom were drivers. The
Respondent and Law Motor Freight share the same
terminal facilities. All three separate corporations have
some common management. George B. Law, who owns
half the stock of the Respondent, half the stock of Law
Warehouses, and 77 percent of the stock of Law Motor
Freight, is treasurer of all three. He determines the labor
relations policies of each of these three concerns.
In 1970 and 1971 Law Motor Freight had a collective-
bargaining contract with the Union covering the working
conditions of its drivers. This contained a clause requiring
the employees, as a condition of employment, to join the
Union within 30 days after hiring. So far as the record
shows, neither the Respondent nor Law Warehouses,
Incorporated, has ever recognized any union as the
representative of its employees.
From its inception the Respondent has had only two
customers, the United States Steel Corporation and the
New Hampshire State Liquor Commission, herein called
the Commission. We are concerned here only with the
Commission's contract, to which approximately four full-
time drivers have been assigned. The Respondent's
principal function under that contract is to ship liquor by
motor to the Commission's warehouse in Concord, New
Hampshire, from four distilleries: Heublein, Inc., in
Hartford, Connecticut, 106 miles from Nashua; Fleish-
mann's in Peekskill, New York, 210 miles from Nashua;
Standard Brands (Seagram's) in Lasalle (Montreal), P. Q.,
Canada, 270 miles from Nashua; and Taylor Wines in
Hammondsport, New York, 370 miles from Nashua.
Under the contract the liquor must be picked up at the
distilleries at an appointed hour; 3 failure to pick up on
time is considered a "service failure." It is important to the
Respondent that the drivers arrive at the pickup point at or
before the designated times; frequent service failures can
endanger the Respondent's contractual relationship with
the Commission.
The procedure followed by a driver on an assignment is
usually as follows: The afternoon before the scheduled run,
he picks up his papers. Taking into account the appoint-
ment hour and predicted weather conditions, he leaves the
Respondent's Nashua terminal in the early morning with a
tractor hauling an empty trailer. Although the Respondent
suggests a departure hour, this decision is left to the
driver's discretion. Upon arrival at the pickup point (the
distillery) the driver waits while the cargo is loaded into the
trailer. (If it is an overnight trip, namely, Hammondsport,
he will sleep for 8 hours, as required by ICC regulations.)
3 The normal appointment times are Peekskill, 8 a m.; Hartford and
Montreal, 7 30 a m.; and Hammondsport, 3 or 3 30 p.m.
4 These findings are based on McKay's credited testimony. Thernault
admitted asking McKay whether he had been approached by the Union,
and admitted that McKay answered affirmatively. However, Thernault
denied that he was the one who brought up the subject of seniority.
Next, he signs papers regarding the cargo and drives the
loaded trailer to the Commission's warehouse in Concord,
New Hampshire. At the Commission's warehouse he drops
the loaded trailer from the tractor and, should one of the
Respondent's empty trailers be available, substitutes the
empty trailer. Then he drives back to the Respondent's
terminal, drops the empty trailer, and turns in his papers.
C. Therriault's Conversation with Stephen McKay
Sometime between November 23 and December 5, 1971,
Henry Therriault, the Respondent's vice president of
operations, called Stephen McKay, one of the Respon-
dent's drivers, into the conference room. They discussed
what Stephen McKay thought about truckdriving and
what he liked about working for the Respondent. Ther-
nault asked McKay whether he "had been approached by
the Union," adding that McKay did not have to answer if
he did not want to. McKay responded that he would
answer, and that he had been approached by the Union.
Therriault remarked that, in this type of business, he
"expected sooner or later" that the Respondent would
become "a union job." He advised McKay that "if [the
employees] decided to go union ... to make sure that
what the union provided for [the employees] was enough to
compensate for the dues and membership fee." Therriault
also pointed out that if the employees became unionized
the Respondent "would be run differently, that, rather
than the work being split down the middle, that the senior
man would get better work, if he chose to take better
work." To McKay, who was not the senior driver, he
pointed out: "you could come up short ... if a senior man
took the better work." 4
The complaint alleges, and the answer denies, that in this
conversation Therriault interrogated McKay "about his
union membership, activities and desires." " In my opinion,
this overstates the case. The only question Therriault asked
was whether McKay had been approached by the Union.
He did not question McKay about the time when this took
place, or whether he had joined the Union, or how he felt
about the Union, or in what union activities he had
engaged or the identity of the person who had approached
him. Furthermore, by assuring McKay that he need not
answer unless he wanted to, Therriault blunted what
otherwise might have been the coercive nature of the
inquiry. I conclude that the General Counsel has failed to
prove by a preponderance of the evidence that Therriault's
questioning of McKay violated Section 8(a)(1) of the Act.
The complaint further alleges, and the answer denies,
that in this discussion Therriault "threatened [McKay]
with loss of income if the Union became the employees'
bargaining representative." It is true that Therriault
pointed out that, because of McKay's low seniority,
McKay's earnings could be adversely affected. However,
this is not a threat of action by the Respondent, but on the
contrary constitutes merely a prediction of what a
According to Therriault, McKay volunteered "that he wasn't particularly
interested" and stated that in view of his relatively low seniority "it was
possible that the seniority provisions [of a union contract] might hurt him as
far as work assignments go." Were Themault's version to be credited, I
would not reach a different result.
BULK HAULERS 391
negotiated collective bargaining contract might provide.
And it had a reasonable basis in fact, for Therriault, in his
capacity as a member of Law Motor Freight's manage-
ment, was presumably familiar with the existing contract
between that firm and the Union, and was in a position to
envision the type of seniority system the Union might
succeed in installing at the Respondent's operations.
Accordingly, I conclude that Therriault's prediction falls
within the protection of the free speech provision of
Section 8(c) of the Act, and that the General Counsel has
not established by a preponderance of the evidence that
Therriault's remarks on this occasion-threatened loss of
benefits or otherwise violated Section 8(a)(1) of the Act.5
D. The Discharge of Ronald V. Hall
1. Facts
Ronald V. Hall was first employed as a driver by Law
Motor Freight in May 1970. In compliance with the
requirements of the collective-bargaimng agreement then
in effect between the Union and Law Motor Freight, Hall
joined the Union. When the Respondent entered into its
contract with the Commission and began hauling liquor
from distilleries to the Commission's warehouse in Novem-
ber 1970, Hall was the first driver hired to make such runs.
His immediate superior in both employments was Charles
McKay, customer service manager for Law Motor Freight,
who also acted as dispatcher for the Respondent, and
general foreman of Law Warehouses, Incorporated. The
parties agree that Charles McKay is, and was at all
material times, a supervisor of the Respondent as defined
in Section 2(11) of the Act. Therriault is, and at all material
times was, Charles McKay's immediate superior in all of
his capacities.
On March 9, 1971, Heublein, Inc., complained to the
Commission, in writing, that the Respondent "failed to
make their 7:30 a.m. appointment" on four specific
occasions during February 1971. A spokesman for the
Commission referred this complaint to the Respondent,
remarking: "unless [the Respondent] could meet that
schedule, that we don't have a contract " Investigation
revealed that two of these service failures were attributable
to Hall's fault .6 After that, Therriault verbally warned Hall
"that [the Respondent] would not tolerate service failures
without a valid excuse."
On' May 7 7 Hall was three-fourths of an hour late at the
pickup point in a run to Hartford (Heublein, Inc.) because
he overslept.
On July 22 Hall was assigned a run to Hartford
(HeubleinInc.) with an appointment time of 7:30 a.m. He
was sickle night before, as a result of which he overslept
and did not arrive at the pickup point until noon--4 1/2
hours late. The distillery complained to the Commission.
Perley Savoy, superintendent of the Commission's ware-
house, telephoned to the Respondent and inquired what
5 An employer "may even make a prediction as to the precise effects he
believes unionization will have on his company." N.LR.B v. Gissell Packing
Company, Inc., 395 U.S. 575, 618.
6 On February 3, he was 2 1/2 hours late at the pickup point. On
February 17 he was again 2 1/2 hours late at the pickup point
4 Hereaftei the year intended is 1971 unless otherwise noted.
8 The findings regarding the Themault-McKay conversations are based
had happened. When it was explained to Savoy that the
driver had overslept, Savoy notified the Respondent's
spokesman "that if this driver couldn't improve and be
there on time for these pickups, that they should replace
him." The Respondent accepted Hall's explanation "as a
valid excuse."
On November 4 Hall was assigned a run to Peekskill,
with an appointment time of 8 a.m. He overslept and
arrived at the pickup point at 11:45 a.m.-3-3/4 hours late.
Sometimes after Hall returned to the Respondent's
terminal Charles McKay asked Hall what had happened.
Hall replied that he had overslept. Therriault, who was
present, commented that Hall "should get another alarm
clock." Therriault further told Hall that "whether or not
[the Respondent] was going to be successful depended on
maintaining schedules and appointment times.""
Early in November Hall, after discussing the matter with
two other truckdrivers in the Respondent's employ,
contacted the Union. During the first week in November a
meeting was held in Hall's home attended by a representa-
tive of the Union, Hall, and Stephen McKay. The matter
of organizing the Respondent's drivers was discussed.
After this Hall continued to confer with Stephen McKay
about the Union at the Respondent's terminal, on the road,
and at the Commission's warehouse. Hall also talked about
the Union to a third driver by telephone and a fourth in
person at the Respondent's terminal. Hall continued these
activities until "probably a couple of weeks" before his
discharge. Leo Tully, then a driver for Law Motor Freight
who occasionally worked part time for the Respondent,
and Stephen Monas, then a warehouseman employed by
Law Warehouses, Incorporated, also knew that Hall was
active in attempting to bring the Respondent's drivers into
the Union. It is in this context that Therriault questioned
Stephen McKay about the Union, as described above.
On November 30 Hall was assigned a run to Montreal
(Seagram's) with an appointment time of 7:30 a.m. He
arrived at 2 p.m.-64/2 hours late, because of inclement
weather. On another run to the same distillery on
December 3, with an appointment time of 8 a.m., Hall
arrived at noon-4 hours late-because of a breakdown.
On December 6 Hall was assigned to' a run to
Hammondsport (Taylor Wines), with an appointment time
of 3 p.m. He departed from the Respondent's terminal
between 7:30 and 7:50 a.m. Charles McKay, who saw him
leaving, shook his head negatively at Hall, indicating that
Hall was leaving rather late and would have to drive fast to
make the appointment on time. In the late morning or
early afternoon of that day Charles McKay told Therriault
that Hall had left rather late that morning, and predicted
that the Respondent would receive a complaint about his
being late. Sometime later, probably around 3:30 p.m.,
Therriault asked McKay: "Have you heard from Taylor
Wine yet?" McKay replied: "No.."8 Hall actually arrived
at Hammondsport at about 3:30 p.m.-l/2 hour late-but
on Charles McKay's credited testimony. Themault testified that at about 4
p in. that day McKay stated that he (McKay) had just received a telephone
call informing him that the Respondent's truck had not yet arrived at the
pickup point, Taylor Wines. McKay denied that he received any such
telephone call, or that he had told Therriault that he had received such a
call. I do not credit Themault's version.
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the papers he handed in indicate that he arrived at 3 p.m.,
on time. Hall returned to the Respondent's terminal on the
morning of December 7. Charles McKay remarked that
Hall had "left kind of late . . . really cut it kind of short"
and asked how he "made out." Hall replied: "I didn't have
no trouble." McKay mquired: "Did you get any com-
plaints?" and Hall answered: "No."
On December 9 Hall came back from a run at about 4:30
p.m. and turned in his papers. He was called into the
conference room by Therriault who stated: "Well, we tried
it out and it didn't work out. You've gotten too expensive
and you're going to be discharged." Hall asked: "Why, for
today? You don't even know what happened today." When
Therriault asked what had happened that day, Hall
explained that his personal car would not start. Therriault
remarked: "Well, you use that excuse all the time anyway."
Angry, Hall denied that he had previously claimed that his
car was not working properly. Therriault asked: "What
about the 6th?" and Hall answered: "I wasn't late the 6th."
Therriault responded: "Charlie seen you leave late." Hall
denied that he had left the terminal late. Themault said:
"All the other habitual lateness." Hall asked Therriault "to
show me where I had been late all these times." Therriault
declined to do so on the ground that he "didn't have time"
to "drag out all the papers." Hall then left the Respon-
dent's terminal and, so far as the record shows, has never
returned.
That evening Hall saw Charles McKay at a bowling
alley. McKay asked Hall how he "made out." Hall replied
that McKay must know. McKay responded that Therriault
asked McKay if he could "get along without number 40
[Hall's tractor] for the next day." Hall asked what time
anyone knew he was late and McKay answered that he
didn't know Hall had been late and had received no
complaint. Hall asked what time it was when Therriault
asked McKay if he could get along without number 40 and
McKay replied around noon. Hall then pointed out: "I
was fired before anyone knew I was late." McKay
remarked that Hall "was being fired for the 6th." Hall
protested: "I wasn't late the 6th." McKay responded:
"You left late." Hall denied this, declaring: "I've always
left at that time and no one never said nothing about it."
This ended the conversation.9 So far as the record shows,
there has been no further communication between Hall
and the Respondent.
Hall applied for unemployment benefits, but was turned
down. He appealed. The Appeal Tribunal of the Depart-
ment of Employment Security of the State of New
Hampshire, after a hearing, affirmed by a 2 to 1 vote. The
majority decision reads, in pertinent part:
The claimant . . . was discharged on December 9, 1971
because he was about one and one-half hour late
reporting for work on that day. The claimant testified
that he had been late about six times from about fifteen
minutes to three hours during . . . his employment.
Hall appealed to the Commissioner, who declined to
change the decision of the Appeal Tribunal, and advised
Hall of his right to appeal to Superior Court. However, no
further appeal was taken.
2. Contentions of the parties
The General Counsel maintains that the Respondent
harbored animus toward the Union . He also contends that
Hall "was the spearhead for the Union organizing
campaign" at the Respondent's terminal and that the
Respondent knew of Hall's role . Finally, the General
Counsel urges that the reasons assigned for Hall's
discharge were "merely pretextual," and that the real
reason was "Hall's union activity ." In this connection, the
General Counsel points to the testimony of Therriault that
he decided on December 7 to discharge Hall and argues
that this "makes entirely irrelevant the issue of whether
Hall was involved in an unjustified service failure on
December 9th."
The Respondent, conversely, contends that the record "is
absolutely devoid of any objective evidence that Respon-
dent had knowledge of Ronald Hall 's union organizational
activities" and that such proof "is essential to the
establishment of his discharge as discriminatory." In any
event , argues the Respondent , Hall was let go "for
justifiable cause," namely, as Therriault described it in his
testimony, "because of his continuous lateness resulting in
service failures after many warnings."
3. Conclusions
In support of his contention that the Respondent
harbored union animus, the General Counsel points to
Law's admission on cross-examination:
Q. (By Mr. Kowal ) Were you opposed to unioniza-
tion of your drivers at Bulk Haulers?
A. Yes.
Based on that testimony , in agreement with the General
Counsel, it is concluded that the Respondent was, at all
material times , opposed to unionization of its truckdrivers.
It is also quite clear from the record , as the General
Counsel contends , that Hall was the most active union
supporter in the Respondent's employ . I so find.
We come then to the crucial question of the Respon-
dent's knowledge of Hall 's union activities. The General
Counsel supports his contention that such knowledge has
been proven with the following arguments : (1) Stephen
Monas knew of Hall 's union activities . He was a supervisor
employed by Law Warehouses , Incorporated , and his
knowledge is imputable to the Respondent because the
Respondent , Law Motor Freight, and Law Warehouses,
Incorporated , together constitute a single employer; (2) the
Respondent knew that Hall was a union member at the
time he was hired by the Respondent ; (3) Hall was a
chronic complainer and dissatisfied with working condi-
tions; (4) Therriault learned from Stephen McKay before
Hall's discharge that McKay had been approached by the
Union; and (5) from the small size of the operation it may
reasonably be inferred that Hall's union activities , a matter
of "common knowledge throughout Respondent's opera-
tions," came to the attention of management. Let us
examine these arguments.
1. In view of Law's control of the labor policies of all
three corporations, I agree with the General Counsel that
9 The findings concerning the Hall-McKay conversation at the bowling was not questioned about this incident.
alley are based on Hall's undemed testimony Although McKay testified, he
BULK HAULERS
together they constitute a single employer. However, Law's
testimony regarding Monas' lack of authority is convinc-
ing. ][ conclude, contrary to the General Counsel, that the
General Counsel has not demonstrated that Monas was
clothed with any of the attributes of supervisory status
spelled out in Section 2(11) of the Act. His knowledge is
accordingly not imputable to the Respondent.
2. It is true, as the General Counsel points out, that the
Respondent knew that Hall had been a union member
when he had worked for Law Motor Freight and at the
time the Respondent hired him. But it is quite a different
matter to infer from this fact that Hall supported the
Union enthusiastically. For the Respondent well knew
that, had Hall not joined the Union as required by the then
existing contract between the Union and his then employ-
er, he would have jeopardized his job. Accordingly, in my
opinion, the Respondent's knowledge of Hall's union
membership, viewed in this light, is of no real significance.
3. Hall's complaints about working conditions, as
reflected in the record, were registered as an individual,
and not as spokesman for others. The General Counsel
does not contend that such activities were protected by
Section 7 of the Act. But he takes the position that from the
fact of Hall's chronic complaining, the Respondent might
have inferred his enthusiasm for the Union. To me, this
does not follow logically.
4. The General Counsel states in his brief: "Therriault
only found out about the union campaign on .. .
December 3." This lacks record support. The evidence
indicates that Themault had questioned other employees
previously (although details are lacking). He testified: "I
had known . . . for some time that there had been talk [of
a union] on and off." All that Therriault learned from
Stephen McKay was that at an unspecified time some
unidentified: person or persons had approached McKay
about the Union. Neither Hall nor any other individual
was mentioned by either Therriault or McKay. There was
not even any indication that the approach had been made
by one of the Respondent's employees. To expand this into
knowledge that Hall was the responsible individual is to
build an inference on an unsound base, and is unjustified
on this record.
5. Finally the "common knowledge" of Hall's active
role in the Union's campaign was confined, so far as the
record shows, to nonsupervisory employees. It is true that
the small size of the Respondent's work complement (less
than 100 if all three corporations are considered as a single
employer) would bring it within the ambit of the Board's
10 See Hadley Manufacturing Corporation, 108 NLRB 1641, 1650.
11 Laboratory Equipment Corporation, et al, 146 NLRB 1247. See also
cases cited in fns 10 and 11, on page 1252 thereof Long Island Airport
Limousine Service Corp, 191 NLRB No. 16, cited by the General Counsel is
distinguishable on its facts
11 In the event no exceptions are filed as provided by Sec. 102.46 of the
393
so-called "small plant doctrine." This permits-but does
not compel-presumption in small plants that manage-
ment soon learns of union activities and the identity of
union supporters. However, it is not a per se doctrine.io
Here, in my opinion, any such presumption is overcome by
the denials of Law and Therriault that they had any
knowledge of Hall's prounion activities until after his
discharge. These denials were not unreasonable, and
withstood vigorous cross-examination. Moreover, here
some of the union activities took place by telephone or in
places away from the Respondent's terminal.
While the matter is not entirely free from doubt, it is
concluded that the General Counsel has failed to demon-
strate by a preponderance of evidence that the Respondent
was aware or suspected, at the time of Hall's discharge,
that Hall was an active proponent of the Union. Thus an
essential element of a discriminatory discharge is mis-
sing.11 In this posture of the case, no prima facie violation
having been proven, it is unnecessary to evaluate the
Respondent's defense that Hall was discharged for good
cause.
Upon the above findings of fact, and upon the entire
record, I make the following:
CONCLUSIONS OF LAW
1. Bulk Haulers, Inc., is, and at all material times has
been, an employer within the meaning of Section 2(2) of
the Act, engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Chauffeurs, Teamsters, Warehousemen and Helpers,
Local 633, of New Hampshire, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is, and at all material times has
been, a labor organization within the meaning of Section
2(5) of the Act.
3. The General Counsel has failed to establish by a
preponderance of the evidence that the Respondent has
engaged in or is engaging in unfair labor practices within
the meaning of Section 8(a)(1) or (3) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 12
ORDER
The complaint is dismissed in its entirety.
rules and regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the rules and regulations, be adopted by the Board and become its
findings, conclusions and order, and all objections thereto shall be deemed
waived for all purposes.