Burns Motor Freight, Inc.

National Labor Relations Board - Board Decisions

Nov 6, 1979

246 N.L.R.B. 368 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Burns Motor Freight, Inc. and Chauffeurs, Teamsters
and Helpers Local Union No. 175, affiliated with the
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America. Case
9-CA- 1 2901
November 6, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On August 20, 1979, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Burns
Motor Freight, Inc., Rupert, West Virginia, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the said recommended Order, as so
modified:
1. Add the following as paragraph (c):
"(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of the rights guaranteed them by Section 7 of the
Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
We find it unnecessary to rely on Respondent's refusal to bargain in the
representation proceeding to establish its union animus in discharging em-
ployee Martin.
Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
2 In light of Hickmortt Foods, Inc., 242 NLRB 1357 (1979). we find that the
narrow cease-and-desist language, "in any like or related manner," is ade-
quate to remedy the violation herein. Accordingly, we shall modify the rec-
ommended Order and notice.
APPENDIX
NoTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a hearing, that we violated the Act by illegally
discharging an employee and by otherwise unlawfully
coercing our employees in their right to engage in
union or concerted activities, has ordered us to post
this notice and we intend to abide by the following:
WE WILL NOT interrogate our employees con-
cerning their union activities.
WE WIll. NI invite individual grievances by
the employees in order to discourage their union
activities.
WE WILL NOT tell our employees we will resort
to extreme measures to frustrate their attempt to
bargain collectively with us.
WE WILL NOT promise to satisfy individual
complaints of employees in order to curtail their
union activities.
WE wlll NOr threaten to discontinue our busi-
ness in order to discourage union activities.
WE WILL NOT solicit our employees to sign let-
ters of resignation from their union.
WE Wll. NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights to self-organization;
to join Chauffeurs, Teamsters and Helpers Local
Union No. 175, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other
labor organization, to bargain collectively
through representatives of their own choosing;
and to engage in other concerted activities for
the purpose of collective bargaining or other mu-
tual aid or protection, or to refrain from any and
all such activities.
WE WIlI- offer William Martin immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent po-
sition, without prejudice to his seniority or other
rights and privileges previously enjoyed.
WE WI.L make William Martin whole for any
loss of pay he may have suffered as a result of the
discrimination against him, with interest.
BURNS MOTOR FREI(;II, IN(C.
DECISION
SrA rEMrNISN OF 1 I1 CASF
THOMAS A. RI((i, Administrative Law Judge: A hearing
in this proceeding was held before me at Lewisburg, West
246 NLRB No. 59
368
BURNS MOIOR FREIGHI IN('.
Virginia. on April 5 and June 6, 1979, on complaint of the
General Counsel against Burns Motor Freight, Inc., herein
called Respondent or the Company. The complaint issued
on October 18, 1978, upon a charge filed on August 28.
1978, by Chauffeurs. Teamsters and Helpers Local Union
No. 175. affiliated with the International Brotherhood of
Teamsters. Chauffeurs, Warehousemen and Helpers of
America, herein called Local 175 or the Union. The issues
presented are whether Respondent discharged a prounion
activist, in violation of Section 8(a 3) of the National La-
bor Relations Act, as amended. and whether management
representatives engaged in various acts in violation of Sec-
tion 8(a)( ). Briefs were filed by both parties.
Upon the entire record and from m! observation of the
witnesses. I make the following:
FIN)IN(oS Oi IFA( I
1. 111i IUSlNISS ()1 RFSP)NI)l \I
Burns Motor Frieght, Inc.. a West Virginia corporation.
is engaged in the interstate transportation of freight by
truck from two West Virginia locations. During the 12
months before issuance of the complaint, a representative
period, it received revenues in excess of $50,000 from such
interstate transportation of freight from points within the
State of West Virginia to places outside the State. I find
that Respondent is an employer engaged in commerce
within the meaning of the Act.
II. l1W I.ABOR OR(iANIZAIION INVOIVE)
I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
Itl. TIW UNFAIR LABOR PRA(ri(lES
A. The Case i Brief
The principal question of this case, the important sub-
stantive issue to be decided, is whether Respondent dis-
charged a truckdriver named William Martin because of his
activities in helping establish the Union as bargaining agent
where he worked. He urged Local 175 to his fellow work-
men on or about August I and arranged, through Doug
Church, Local 175 representative, to distribute and solicit
signatures on authorization cards. By August 3, he had ob-
tained a substantial number of signed cards and gave them
to Church. On August 10, with these signed cards, Local
175 filed a petition for an election with the Board's Re-
gional Office in Cincinnati (Case 9 RC 12581). As usual,
the Company was informed of the filing of this petition.
The employees attended a union meeting on August 13. On
August 15, the vice president of the Company personally
interviewed and questioned virtually every one of the ap-
proximately 16 drivers in the bargaining unit, and 3 days
later, on August 18, he discharged Martin. Did Respondent
violate Section 8(a)(3) of the Act by doing this?
It is an inquiry into motivation, an inference case, so to
speak. Respondent asserts it had just cause for dismissal.
but it is very difficult to figure out, on the transcript record,
just why, it is saying, it fired him; indeed, its witnesses
would not even admit intelligibly that they discharged Mar-
tin at all. 'I'he evidence said to prove the antiunion animus
alleged in the complaint speaks of collateral hut related
conduct of management agents, much of it listed in the
complaint as independent violations of Section 8(a)(1) of'
the statute. When Larry Burns, himself an admitted super-
visor, and brother of Fred Burns, Jr., the owner of the busi-
ness, fired Martin on August 18 albeit using the euphe-
mism "suspended"-he did not say the reason was his
prounion activities. Does the collateral evidence of strong
opposition to the Union in management. even to the point
of committing clear unfair labor practices. suffice to support
the inference that in the discharge of Martin. too. Respon-
dent was implementing its antiunion resolve'?
Proof of the prohibited motive can be seen in what an
employer does after, as well as before, a discharge. lHere,
the fact that Respondent was opposed to union activity in
an3 form has been established beyond question. After Mar-
tin was discharged. the representation case continued on its
course. On September 6 a Board hearing was held on the
representation petition: a Decision and Direction of Elec-
tion was issued on September 22: the election took place on
October 27: the Union won, and it was certified as exclusive
bargaining agent of the truckdrivers. But Respondent nev-
ertheless refused to bargain with it, as the statute com-
mands. A refusal-to-bargain charge was filed in DIecember.
a complaint alleging violation of Section 8(a)(5) issued on
January 26. 1979. and a Motion for Summary Judgment
was made by the General Counsel. After issuance of an
Order To Show Cause, the Board issued, on June . 1979.
its Decision and Order finding that Respondent had liter-
ally refused to bargain a direct unfair labor practice. 242
NLRB 712. Thus, that Respondent was fundamentally op-
posed to collective bargaining through the Union the end
object sought by Martin in his personal activities before he
was discharged could not be clearer. This fact is, of
course, a basic prop for the requested inference that man-
agement's real motivation in getting rid of Martin was to
cut into the prounion activities of all the employees. An-
other way of putting it would be that the record presents
pretty much a prinmafacie case in support of' the complaint,
and that perhaps the burden shifts to Respondent. Has it
come forth with convincing proof of lawful purpose?
B. The 8(a)(l) iolations
Between August 10, the day the election petition was
filed, and August 15, two things happened. The Company
received notice of the petition from the Board, and the em-
ployees held a meeting with Union Representative Church
at the Clintonville firehouse, not far from the office of Tom
Kimberlin, the Company's dispatcher. On August 15 Fred
Burns came from his office in Martinsville. 60 miles away,
to the Rupert location, where the dispatcher is in charge
and where the truckdrivers have their operating station. To
make his visit to Rupert seem innocuous, Burns said he
goes there once a month, maybe more often. But some of
the drivers then on the job said they had never seen him
before. In that office, somtimes speaking with only one
man, sometimes with two or three at a time, Burns dis-
cussed the matter of the Union with just about every one of
the drivers.
369
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nine employees testified about these interviews --eight
drivers and a maintenance man who, it appears, is stationed
at the dispatching location. Their consistent story is that
they were called to the office because Burns wanted to talk
to them. The drivers received the call from Kimberlin, the
dispatcher, on their CB radios while they were on the road;
this is the way the dispatcher regularly orders them from
one delivery assignment to another. Three drivers Martin,
Holland, and Prather were kept in the office for this talk
for over 2 hours: Fitzwater, sitting alone, was kept for be-
tween I and 2 hours; others some alone and some in
twos-were kept for shorter periods, as little as 15 minutes
in some instances. As will appear, the thrust of the talking
was Burns passing the message to his men that he was not
going to stand for a union in his Company.
That Burns repeatedly violated Section 8(a)( I) of the
Act interrogations, threats, and promises of benefits is
clear. But because Burns' credibility goes to the heart of his
decision to discharge Martin 3 days later, his attempt to
explain away what he did on August 15 deserves first con-
sideration. Aware, for the least, that interrogation of em-
ployees concerning their union activities at such a crucial
moment is absolutely prohibited, he tried to create the im-
pression it was the employees who desired to talk to him,
not he who wanted to question them. "I went to the Rupert
office and was available for any employee that wanted to
come in and sit down and talk with me .... Q. Did you
summon any of them into the office? A. No, sir. I just let it
be known that I was there, available for them to talk to me
if they so desired." Burns then expanded upon this by say-
ing the employees asked him "certain information about
our fringe benefits .... I had some employees to come out
and ask me what I would do for them, and I explained to
them I could not make any changes or promises during the
campaign."
No less than 10 employees in a unit of 16 or 17-were
identified on the record as being in that office that I day
talking with the owner. If Burns is to be believed, it means
that within a week or two of signing union cards, 5 days
after filing a Board petition to establish the Union as their
collective-bargaining agent vis-a-vis their employer, and
only 2 days after going to a regular union meeting, each
and every one of these men abandoned the idea of joint
action and turned to the Employer for individual arrange-
ments. Burns even said that the men asked him for im-
proved benefits, but that he said he could do nothing then
for them because of the pending union campaign. His story
also means that every one of the nine employee witnesses
lied about being called away from work because the boss
wanted them there. I am unable to believe such an incredi-
ble story. There are also other reasons, but on this record I
find Burns a completely discredited witness. And this goes
not only to his asserted reason for discharging Martin, but
also to his denial of making any promises to, interrogations
of, or threats to the employees he called to his office that
day. Wherever he is contradicted by other witnesses on this
record, I reject Burns' testimony.
The testimony of the employees about their conversa-
tions with Burns is consistent; there is no need to restate
here every jot and tittle. From the testimony of Holland,
who said he never saw Burns before:
He said he was there about the Union. He had re-
ceived a letter from the Union; that he wanted to talk
to us about it. He said he was against it. He didn't
think that we need a Union--a third party; that we
could resolve our problems among ourselves. He
thought we were man enough to do that without a
third party interfering. If we had any complaints we
could call him or come and talk to him about it.... He
said he had $20.000 to pay in fees to fight it. Then he
asked me why I wanted to join the Teamsters Union
and I told him because of the benefits, the insurance
and retirement and a wage increase which I felt was
better than what he was offering ....
John oth, who also had never met Burns, testified:
Hie explained to us the company policy on insurance.
the benefits of the company and he also said that he
felt that the business was a famil5 business and that he
didn't see no need for an outsider, a third party to
come in and tell him how to run his business .. . [H]e
said that if there was any gripes or complaints to call
him and he would try to get them.
Persinger stated:
Mr. Burns discussed benefits and asked me if I had any
problems.... I told him yes, I did and we discussed
two or three gripes 5ou know.... [A]s far as the insur-
ance he said that he felt that he could correct the wait-
ing period and the matter of Mr. Kimberlin.... We
discussed the rate of pay and he explained to me how
he arrived at a figure for paying .... Mr. Burns
pointed out that he didn't feel that a third party was
necessary and he did say that a shutdown could, I
don't know if he phrased it could kill them or hurt
them, hurt them very badly. Something like that.
From the testimony of Ma-x Osborne.
He just wanted to know what our gripes and com-
plaints were. ... We just talked about the profit shar-
ing plan there and that he couldn't promise to pay any
waiting time at that time.
Richard Giles testified:
He said he didn't think we needed a third party to
settle our differences. He asked what our main prob-
lems were. The rest of it was about the insurance and
the profit sharing.... He told us he had $20,000 to get
a lawyer to fight the union.... [H]e asked us what our
main problems were.... He said that West Vaco
would try to get a portable dump-in and hopefully that
would help.
Filzwaier stated:
[H]e asked us what our main problem was.... He said
that he'd hired a lawyer that cost him in the neighbor-
hood of $20,000 to fight the union, to keep them from
coming in.... Fred [an error in the transcript, the
witness meant William Martin] told him if he'd spent
the money in form of a pay raise, to improve the wait-
ing time and stuff that there probably never would
have been a union brought in.... Fred Martin told
Fred, Jr. [meaning Fred Burns, Jr.], that it looked like
we were wasting his time and he was wasting ours.
370
BURNS MOTOR FREIGHT. INC.
And finally, from the testimony of Martin, the driver.
who was with two other men and who was discharged 3
days later:
Well, to start the meeting off Mr. Burns said that he
understood that we had some gripes and that he was
down there: he wanted to hear about them. And Mr.
Holland spoke up and he said, well --I never think of
that word-benefits.... And I proceeded at this point
to explain about the insurance policy and some of the
other gripes the drivers had. The main thing with the
insurance policy was that we had to wait 6 months
work fobr Burns for six months before we could get any
insurance. And I explained to Mr. Burns that people
with a wife and kids couldn't afford to work for six
months and not have any insurance policy. And on
this matter he promised that he would talk to the insur-
ance people and see if he couldn't get this waiting time
cut down a little bit.... Mr. Burns at this time told us
that he understood we were trying to organize the
Union and that he was going to fight it any way he
could, and that he had consulted an outfit in Roanoke.
Virginia to represent him and he didn't think we
needed three people. That we certainly two people
could work out our problems a lot better than three
people. And he had spoken to these people in Roa-
noke, and they were willing to represent him for some
$20.000 .... I told him that he would be better to
spend his $20,p00 and put it into the job and to make
improvements in the job and he wouldn't need the
union in the first place.... He said it seemed like I
knew more about this than most of the rest of the peo-
ple. At that point I told him I have been in the Union
for a number of years and I had read the Union con-
tract, and had also read the insurance polic.. ..[Alf-
ter the meeting was over Mr. Burns and I talked out-
side and Mr. Burns . . . asked me if I thought that he
was wasting his time to come down there and talk to
the drivers. And I told him . . . I thought it was good
human relationship, but as far as stopping the strike, I
thought he was about a week too late.
Following all these witnesses, Burns denied in conclu-
sionary terms that he ever asked how employees they would
vote, that he ever asked why they had joined the Union.
that he ever solicited any grievances or promised any bene-
fits, or that he said he had hired a $20,000 lawyer. I do not
credit his denials against the testimony of the employees.
Accordingly, I find that, by questioning employees as to
why they wished to join a union, by inviting them to state
their economic demands individually to him, by promising
to satisfy their grievances, and by threatening to resort to
every possible means to defeat the union campaign, Re-
spondent, through Fred Burns, violated Section 8(a)(1) of
the Act.
There is also testimony that a joint participant with Fred
Burns in the program to defeat the prounion campaign
among the employees was Tom Kimberlin. the dispatcher
and sole representative of management at the Rupert office.
He, too, according to the drivers, said things to individual
employees which constituted violations of Section 8(aX 1) of
the Act. He did more, according to some of the witnesses.
He encouraged some employees to sign letters revoking
their union authorization cards. This happened after Mar-
tin was discharged and while the representation petition
was being processed by the Board, but before the election
held on October 27. In that proceeding Respondent dis-
puted the Union's assertion that Kimberlin is a supervisor
within the meaning of the Act, and an agent of the Com-
pany: it therefore challenged his ballot. But on investiga-
tion the Regional Director ruled otherwise. At the hearing
in this proceeding Respondent again takes issue with the
allegation that Kimberlin's conduct is chargeable to man-
agement: it repeats the contention he is not a supervisor.
I find, on this total record, that Kimberlin was and is a
supervisor. All the drivers receive their work orders from
the dispatcher-which runs to make and where to go. tie is
in constant contact with them all day ia their CB radios.
Their earnings are directly related to which particular deliv-
eries they make, and Kimberlin along makes these deci-
sions. His authority therefore bears a direct relationship to
the employees' take-home pay. More important. the drivers
have no contact with any other representative of manage-
ment at all. If Kimberlin is not their supervisor. it means
they virtually operate independently, an impossible situ-
ation. Kimberlin is salaried, while the drivers are not. lie
maintains all the company records at this location: he posts
all the company notices. Fitzwater said he believed Kim-
berlin has authority to discharge. He testified that in early
1978 Kimberlin discharged him for having been in an acci-
dent, although saying it was on orders from Fred Burns.
Fitzwater was suspended for 60 days, and he added that
when he telephoned Fred Burns to try to get his job hack.
Burns said Fitzwater would "have to get in touch with
Tomcat [a nickname for Kimberlin]."
The testimony of Fred Burns that he and his brother
Larry directly' supervise these drivers from their office 60
miles away is totally unconvincing. Larry Burns is in charge
of maintenance, work that is done at Marlington, not
Rupert. Fred Burns said he does the actual supervising at
Rupert by telephone, or by radio contact with Kimberlin.
Asked how often he goes to Rupert. Burns kept shifting: "I
would say that there's not a month goes by that I'm not
there, and sometimes as much as two or three times a
month." Later: "I have two other brothers that go down
.... One of us tries to be there at least once or twice a
week." There is a significant difference between day-to-day
presence to supervise 16 or 17 employees and "trying" to be
there once a week or so. This sort of testimony must be
evaluated in the light of the work Kimberlin in fact does all
day long in directing the work of the drivers: it must also be
appraised together with the testimony of one employee af-
ter another that they rarely, if ever, even see any of the
Burns brothers at all. Where Burns said he is in touch with
the Rupert location "12 to 20" times a day, Kimberlin gen-
eralized it as "2 to 8" times a day. Asked, on cross-examina-
tion, if he was "sort of in charge" in Rupert, Kimberlin
answered "in a round about way."
Toth testified that on or about August 29 Larry Burns
was at Crowley and talked to him in Kimberlin's office:
"He said that, more or less about the meeting, you know
about the Union and that he had a paper that was going
around at that particular time that was asking the Union to
send our cards back that we had sent in for the Union that
there was three men that had signed the paper. One was Ira
371
D)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
Prather, Don Cale, and Jack Ennis had signed the papers at
that particular time and he asked me you know if' I would
like to sign the papers .... [H]e said he needed time to
delay the Union before the hearing .... [T]he paper was
laying on the desk and I just happened to look down and
read it." Toth recalled that the following statement ap-
peared on the papers he saw on Kimberlin's desk: "After
some consideration we would like to withdraw our Union
cards from the Union." Toth continued that the next day
Kimberlin asked him if he "wanted to sign the paper which
Larry had talked to [him] about two days before." Toth
refused to sign either time.
Layton Osborne, also a driver, saw Fred Burns' station
wagon on the highway going in the opposite direction on
September 21, with its lights blinking. He blinked back.
thinking it was an invitation to him, and crossed over to
talk to Burns. Osborne testified that he asked Burns if he
could get more waiting time for the men and Burns an-
swered that "he couldn't give us nothing because he was in
the process on the Union." Burns also said, according to the
witness, that "he didn't think the Union would be a good
thing to have, that he just couldn't go along with the third
party and he wouldn't go along with the third party." Burns
then said, still according to Osborne, "[I]f I could get
enough men to sign the papers that would drop the union."
Osborne, too, added that the next day Kimberlin asked him
if he "would sign the papers."
Richard Giles also testified that during the last week of
August Kimberlin asked whether he "wanted to sign one of
those letters .... [H]e just asked me if I wanted to sign one
of their letters. I heard from the other drivers what it was."
Jiles said he did not actually look at what papers the dis-
patcher had in his possession, but added that he knew it
was a request to express opposition to the Union. In the
context of the overall picture of what several management
people were then doing, Giles had every reason to infer
what he did infer as to Kimberlin's objective.
James Manspike, another driver, testified that in Mar-
lington late in September Fred Burns spoke to him: "[Hle
just talked about what he could do to get the Union
stopped .... He was looking for a man to talk to the rest of
the guys.... To change their minds, you know, about the
Union." Manspike did not "volunteer," as he said.
Fitzwater said he signed the letter for Kimberlin. His
testimony is that in the last week of August "Tomcat, he
came up and asked me if I would sign a card withdrawing
my application from the Union.... He said Fred, Jr., said
if the Union was brought in, he was going to lock the doors
on the place." Fitzwater added that the next morning he
did sign a typed copy of a letter and that it read "something
about having the union application mailed back." The fol-
lowing day, still according to Fitzwater, Kimberlin told him
that the return address was missing on his letter and that he
should fill it out properly. Fitzwater then did that. Fitz-
water went on to add that about a week later the dispatcher
told him that "Fred, Jr., offered us a dollar more on the
load, cut the waiting time down to 40 minutes .... "
Fred Burns, Jr., his brother Larry, and Kimberlin all
three denied having asked any employees to quit the Union
or to sign any kind of resignation document. They also de-
nied any promises to improve employee benefits either di-
rectly or indirectly. Considering their testimony in the light
of other aspects of the case, their demeanor. and the record
as a whole, I do not credit them. I find, as the employees
testified, that all three of them, on behalf of management,
tried to persuade employees to sign resignation letters and
to reject union representation, and that they coupled their
request with both promises of benefits and threats of repri-
sals. By every one of those acts on the part of management
agents, Respondent violated Section 8(a)( ) of the Act.
There are additional allegations of violations of Section
8(a)(l) detailed in the complaint, and there is evidence in
the record tending to prove them. On a day before the
Board hearing in the representation case, September 5, the
Company called all the employees to an unprecedented
breakfast meeting in a restaurant and announced a new
rule about anyone caught speeding on the highways. On
September 11 a labor consultant hired by the Company
conducted a similarly unprecedented meeting with all the
employees, where they were asked to state their views about
management and their opinion about conditions of employ-
ment -essentially a programed technique again to draw
from the drivers what their "gripes" might be. The implied
message that the Company would at least try to do some-
thing to satisfy the employees was unmistakable.
I think it would unduly delay this Decision and recom-
mended Order to belabor these details, for if expressly
found, these further unfair labor practices would be no
more than repetition of the unfair labor practices already
found, with no change called for in the remedial order that
must issue. The purposes of the Act--o bring about the
collective-bargaining process--will be better served if the
case, together with the outstanding final bargaining order in
the companion complaint case, were carried to completion
without further delay.
C. he Discharge of William Martin
As stated above, on August 15, Vice President Burns
questioned Martin about his union activities in the presence
of two other drivers, inquired as to their grievances, prom-
ised to look into some of them, and said he was determined
to put a stop to all union activities, only to have Martin
defy him with the statement it was too late to talk the men
out of their common resolve. Three days later, without a
word of warning, he had the man fired. Burns' explanation,
and that of his brother Larry of why and how they went
about getting rid of Martin, fails at every step. Indeed, it is
not possible to reconcile their evasive statements with re-
lated facts that are clear on this record.
The story seems to be-at least judging from what was
said at the hearing and what is contended in Respondent's
later brief-that Martin just deserved to be fired because he
was given two speeding tickets on the highway while driv-
ing his truck for the Company. In direct conflict with these
later assertions, the testimony of both the Burns brothers is
that on August 18, before any one on behalf of manage-
ment even spoke to Martin, neither of them knew it as a
fact that the driver had received two tickets. Fred Burns
sent his brother to Rupert that day because, as he testified,
he had heard "rumors" about two tickets: "I didn't have
anything official. All I had was rumors .... I didn't have
anything in black and white." Burns even said he "couldn't
take action against a man on hearsay, which was just ru-
372
BURNS MOTOR FREIGHT. INC.
mors that other drivers were telling me." and therefore sent
his brother to "investigate." This part is consistent with
Larry Burns' version of why he went down to speak to
Martin: "I went to Rupert and had him come into the office
that afternoon .... I went to Rupert after I'd been told the
rumor was going around that Mr. Martin was speeding....
We [Larry Burns and Martin] discussed it a little bit further
and I told him that when we got this written report from
the Department of Motor Vehicles that we would have to
take disciplinary action." Burns said the interview ended
with Martin saying he chose to quit.
Martin's testimony is that Burns started by saying "he
was suspending me for a speeding ticket I'd got for doing 69
miles an hour .... He told me that the insurance company
was pressing him to get rid of me and to suspend me. ... He
told me that the insurance company, due to the number of
accidents that he had had, that they were putting pressure
on him to clean up his act; to get rid of certain drivers .... "
Martin continued that his response was: "I told him at that
time I felt that he wasn't firing me for speeding; that he was
firing me for my Union activity ... and that he left me no
alternative and I felt it was my obligation to tell them that
I had no other alternative except to file a complaint with
the Labor Board. ... His answer was, 'You run your office
and I'll run mine.' . . . And he said, 'I'm not firing you, I'm
suspending you.' "
As I look at the testimony of the two Burns brothers,
they were saying they intended to take no action against the
man at all that day. Why the Company, instead of going
down to Rupert, did not check with the state motor vehicle
bureau for a reliable report on the true facts, as is always
done and as this Company has itself done in the past, no
one explained. Martin's second ticket on July 26-was a
double ticket, for going 69 miles per hour and for pulling an
illegal load. He said he handed the ticket to Kimberlin the
same day he received it. Two days later for sure, the Com-
pany had that ticket in its hands, because it had to pay, and
did pay, for the second part of the offense. This was July
28.' Martin's first ticket was dated June 22; he told the
other drivers he had received it, and driver Toth testified
that the day following June 22 he told Kimberlin about that
ticket. And Respondent concedes, for the least, that rumors
of that ticket started to circulate quickly. But with such
rumors in the air now for more than a month, why did the
Company wait for so long-from July 28 to August 18-
before deciding to "investigate" the possibility of too many
tickets?
The defense-generalized throughout the Company's
brief as a blanket indictment of Martin for being a congen-
ital speedster-becomes more and more blurred, and there-
fore unconvincing, as it goes along. Throughout the story
runs the refrain that the insurance company made it im-
I Unmistakable indicia of the very poor credibility of all Respondent's
witnesses keep surfacing throughout the record. The dispatcher-supervisor.
Kimberlin, asked if he had seen the July 26 ticket when Martin got it. an-
swered, "He didn't show me the ticket per se." He then shifted hack and
forth as he talked. And to prove the broader assertion that it had in the past
discharged other dnvers for receiving two speeding tickets. Respondent
placed into evidence a document from its records concerning a man named
Barlow who had in fact been given two speeding tickets. But the document
also shows, in the handwriting of some management representative, that the
man was "fired for accident!"
perative to get rid of this driver because of a policy against
insuring chronic offenders. In fact, the first witness in de-
fense was an insurance agent who sells truck insurance to
Respondent. He spoke at length about how. "normally."
the insurance companies do not like to cover drivers who
get more than two speeding tickets in 1 year: how they
"normally" get information once a year from the insured
trucking company (this would be Burns) about individual
drivers (later the witness changed this to the insurance com-
pany "normally" receiving this data directly from the
State); how he. the insurance agent, receives such informa-
tion only when the insured company is itself aware of a
"problem": and how "most" companies do not like to cover
a driver who has over six points in a year. The weakness in
all this is that there is absolutely no evidence. or claim. that
Respondent received a single word of complaint about
Martin, from either its insuring agency or from its insur-
ance company. When Larry Burns told Martin on August
18, "We got this written report from the Department of
Motor Vehicles that we would have to take disciplinary
action," he was lying outright. It was even stipulated that a
chauffeur's license is not subject to suspension until he
builds up 12 points for speeding violations. No one claims
Martin to have been in that class.
I think it was because Respondent was faced with this
picture of reality that Larry Burns altered the discharge
meeting into a voluntary resignation by the driver. It was a
convenient explanation of the fact that the Company never
recalled him to work. "Disciplined." "suspended," "sent
home"-the words used do not matter: when a man is sent
away for good, he is discharged, no matter how the message
is conveyed. If the manager had really said no more than
that the Company was going to look into Martin's speeding
record, there would have been no reason for the man to
take offense. If he said he would go straight to the Board, it
was because he had reason to believe his two tickets were
common knowledge and to realize that the timing of the
interview had to be tied to his union activity. After all, only
3 days earlier the Company's top boss had told him the
Employer was going to resort to every possible means to rid
itself of the Union. Actually, there is no real question about
where the credibility resolution must go, for even as to this
talk in the end the company witness faltered. Asked if it
was he who told the man to stop working, Larry Burns
answered, "Indirectly, yes." I find it a fact Larry Burns told
Martin that day that he was "suspended."
But there is more reason to credit Martin as to the dis-
charge conversation and to discredit the now asserted justi-
fication for the discharge. However it be phrased-despite
the deliberate equivocation by its witnesses--it was a mat-
ter of the driver driving too fast on the highway. The truth
is that mangement always knew Martin was a fast driver.
But more important--again on the basis of unquestionable
reality it did not think this was a fault; that is, it found no
reason to criticize Martin until the moment he made clear
he was going to flaunt Burns' desire that he quit the union
movement. Of the 14 or 15 drivers in the group, Martin
made more deliveries than anyone else, as the record shows
without question. The others made 2 delivery trips a day,
while Martin averaged 23 to 24 deliveries a week; each trip
took 5 or 5-1/2 hours, and he worked between 14 and 18
hours a day. He was paid by the trip and therefore liked the
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arrangement. But the Company, too, gained financially
from this sort of grit in the employee. And this is why his
testimony stands uncontradicted that "[t]hey were always
encouraging you to get down there and get back as fast as
possible."
Throughout his 8 months of employment, no one ever
voiced a criticism of Martin for speeding, nor indeed about
any other fault. At the hearing Respondent produced a
written document bearing the date July 26. It is a list of
cautions addressed to all drivers, including a warning that
as to anyone who should receive two speeding tickets, the
Company was "required to take action." Fred Burns, Sr.,
said at the hearing that he had this notice placed in the
paycheck envelopes of all the drivers at the time, July 26.
Shown the paper, two drivers testified that they had never
seen it before, and three others testified that they had never
seen it until sometime in September, long after Martin had
been discharged. I credit them against Burns.
I find that Respondent discharged Martin to put a stop to
his union activities and thereby violated Section 8(a)(3) of
the Act.
THE REMEDY
Respondent must be ordered to reinstate Martin to his
old position and to make him whole in keeping with estab-
lished Board law for any loss of earnings he suffered in
consequence of the illegal discharge. It must also be ordered
to cease and desist from in any other manner violating the
statute.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set out in section III, above,
occurring in connection with the operations described in
section I, above, have a close, intimate, and substantial re-
lationship 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.
CONCLUSIONS OF LAW
I. By discharging William Martin, Respondent has en-
gaged in and is engaging in unfair labor practices within the
meaning of Section 8(aX3) of the Act.
2. By the foregoing conduct, by interrogating employees
concerning the union activities, by inviting individual griev-
ances by the employees to discourage the union activities,
by telling employees it would resort to extreme measures to
frustrate their attempt to bargain collectively, by promising
to satisfy individual complaints of employees to curtail their
union activities, by threatening to discontinue its business,
and by soliciting employees to sign letters of resignation
from the Union, Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of Section
8(a)(l).
3. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) 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:
ORDER2
The Respondent, Burns Motor Freight, Inc., Rupert,
West Virginia, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Discouraging membership in Chauffeurs, Teamsters
and Helpers Local Union No. 175, affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other labor or-
ganization of its employees, by discharging employees or
otherwise discriminating against them in their employment
conditions because of their membership in or activities on
behalf of the above-named or any other labor organization.
(b) Interrogating employees concerning their union ac-
tivities, inviting individual grievances by the employees to
discourage their union activities, telling employees it would
resort to extreme measures to frustrate their attempt to bar-
gain collectively, promising to satisfy individual complaints
of employees to curtail their union activities, threatening to
discontinue its business, or soliciting employees to sign let-
ters of resignation from their Union.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer to William Martin immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for any loss of pay or any benefits he may have suf-
fered by reason of Respondent's discrimination against him,
with interest thereon to be computed in the manner pre-
scribed in F. W. Woolworth Company, 90 NLRB 289 (1950),
and Florida Steel Corporation, 231 NLRB 651 (1977). 3
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary or appropriate to analyze the amount of backpay due.
(c) Post at its plant in Rupert, West Virginia, copies of
the attached notice marked "Appendix."4 Copies of said
notice, on forms provided by the Regional Director for Re-
gion 9, after being duly signed by Respondent's authorized
representative, shall be posted by it for a period of 60 con-
secutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by it to insure that said
notices are not altered, defaced, or covered with any other
material.
(d) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
2 In the event no exceptions are filed as provided by Sec. 102.46 of the
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.
See, generally, Isis Plumbing & Hearing Co., 138 NLRB 716 (1962).
In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
374