Carl Subler Trucking, Inc.

National Labor Relations Board - Board Decisions

Mar 27, 1968

170 N.L.R.B. 802 (N.L.R.B. 1968)

802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carl Subler Trucking , Inc. and Lonnie Hannah, Jr.
Case 8-CA-4444
March 27, 1968
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On September 13, 1967, Trial Examiner George
Turitz issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices alleged in the complaint and recommend-
ing that it cease and desist therefrom and take cer-
tain affirmative actions, as set forth in the attached
Trial Examiner's Decision. The Trial Examiner also
found that the Respondent had not engaged in cer-
tain other unfair labor practices alleged in the com-
plaint and recommended dismissal as to them.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief,
and the General Counsel filed an answering 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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that Respondent, Carl Subler Trucking, Inc.,
Versailles, Ohio, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
' We affirm the Trial Examiner's finding that Respondent had knowledge
of Hannah 's union activities prior to Hannah 's discharge However, we
make this finding on the credited testimony of employees Sims and Shaw
that Kleinman , Respondent 's Auburndale , Florida , terminal manager, had
told them that Hannah was being ordered to Auburndale to be discharged
for his union activities
TRIAL EXAMINER'S DECISION
GEORGE TURITZ , Trial Examiner: On a charge
filed by Lonnie Hannah , Jr., an individual , herein
170 NLRB No. 89
;ailed Hannah and, at times, the Charging Party,
and served on December 21, 1966, on Carl Subler
Trucking, Inc., herein called Respondent and, at
times, the Company, the General Counsel of the
National Labor Relations Board, herein called the
Board, through the Regional Director for Region 8,
on February 2, 1967, issued a complaint and notice
of hearing against Respondent. The complaint was
amended at the hearing hereafter described.
Respondent filed its answer, which it amended at
said hearing, in which it denied all allegations of
unfair labor practices. The hearing on the com-
plaint was held on March 23 and 24 and May 16
and 17, 1967, at Greenville, Ohio, and on April 18
through 21, 1967, at Lakeland, Florida, before the
Trial Examiner named above. The General Counsel
and Respondent were represented by counsel at the
hearing; the Charging Party was represented by
himself but did not participate except as a witness.
At the conclusion of the hearing all parties waived
oral argument. Counsel for the General Counsel
and for Respondent have filed briefs with the Trial
Examiner.
Upon the entire record and from his observation
of the witnesses the Trial Examiner makes the fol-
lowing:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is an Ohio corporation with its prin-
cipal office and place of business located in Ver-
sailles, Ohio, and having terminals at Versailles,
Ohio; Auburndale, Florida; Greenville, Michigan;
Portland, Maine; and Presque Isle, Maine. In the
course of its business operations Respondent an-
nually receives gross revenues in excess of $50,000
for transporting goods in interstate commerce.
Respondent admits, and it is found, that it is an
employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the National Labor
Relations Act, as amended, herein called the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America,
herein called the Union, is a labor organization
within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The central issue in this case is whether Respon-
dent discharged Hannah because he organized em-
ployees or because of alleged deficiencies in his
performance. Also at issue are alleged interrogation
of and threats to employees constituting inter-
ference with their concerted activities, and with the
processes of the Board involved in the present
proceeding.
CARL SUBLER TRUCKING, INC. 803
A. Hannah's Discharge
Respondent 's letter discharging Hannah read as
follows:
11/3/66
12:30 P.M.
Lonnie Hannah,
Please find enclosed, amount of check for
$50.00, issued to you, which, can be used for
expense money back to Ohio. Also enclosed is
a Bus ticket #21956316, in the amount of
$32.10, for your return back to Ohio.
Lonnie, I am sorry that I have to relieve you
of all further duties at this moment, but you
leave me no alternative. As stated yesterday,
you violated four Company rules on this par-
ticular trip to Florida, namely,
1. You failed to furnish my Company with a
weight ticket on the load you picked up in Cin-
cinnati, although you admitted here yesterday,
you were aware that this is, and has been a
standing order. This failure can and will
possibly result in a claim by the shipper of ap-
proximately $500.00. You also had a damaged
carton of merchandise which was rejected by
consignee and you failed to return this, to the
terminal.
2. You also failed to slide your tandem
back, which could have caused you to be over-
loaded on the trailer axles.
3. You also failed to submit a vehicle condi-
tion report upon arriving at our terminal in Au-
burndale.
4. You also failed to keep a summary of
hours worked, and hours available in which
you were seven days behind when you arrived
here at the terminal.
And further, Lonnie, you know that our Ver-
sailles office is not a Post Office to receive mail
from other women besides your wife.
Furthermore as I pointed out to you some-
times ago, and my records will indicate that
you failed to mail in promptly, your daily logs
more than any other driver in our organization.
And of course, you will recall the day on our
lot in the Versailles terminal, that you
threatened to whip Mr. W. J Bohman, the
Company Secretary and Treasury.
Carl Subler Trucking,
INc.
/s/ Carl Subler President
Hannah worked for Respondent as a truckdriver
from April to approximately December 1964, when
he left. In February 1965 he was rehired. At that
time, he testified, Carl Subler, Respondent's pre-
sident and general manager, said to him, "you
know how I feel about a union. You know that we
don't want a union. We don't-want any trouble in
our company, you know how I feel." This was de-
nied by Subler.
On September 9, 1966, Hannah received union
literature and designation cards from the Union and
he proceeded to distribute them among his fellow
drivers. He also sought to enlist the aid of at least
one other driver in soliciting signatures. Between
September 9 and November 1 he contacted approx-
imately 30 drivers, of whom 29 signed cards and
returned them to Hannah. These activities of Han-
nah were discussed among Respondent's em-
ployees, including those at its terminal in Auburn-
dale, Florida.
On October 26, 1966, Hannah met in the
dispatch room of Respondent's Versailles terminal
with Tom Subler, a dispatcher and a son of Carl Su-
bler, for a routine periodical -settlement of his ac-
counts. Drivers received substantial advances' be-
fore each trip and were paid 9 cents a mile plus pay
for stopovers, loading, and unloading, and in addi-
tion they were reimbursed for their outlays for fuel,
hired labor, tolls, and part of their lodging. About 2
weeks before the October 26 settlement Tom Su-
bler had called Hannah's attention to two fuel bills
from a certain truck stop, dated June 23 and July 1,
1966, previously submitted by Hannah for credit,
one showing a discount of 66 cents and the other
showing none. Tom Subler cautioned Hannah to' be
more careful about having bills show discounts.
Hannah testified that he used that truck stop a
great deal for food, fuel, and sleeping and that he
did not know why the one receipt failed to show a
discount. At the October 26 settlement Tom Subler
raised question about four other fuel receipts dated
August 14, 17, and 20 and September 17, respec-
tively, for which Hannah had been paid at prior set-
tlements. He told Hannah that he had learned from
three of the stations involved that they gave
discounts for fuel, pointed out that Hannah's bills
showed no discounts, and'asked for an explanation.
Hannah replied that he could not explain but de-
manded to know if he was being accused of steal-
ing. Tom Subler replied that he was not, but he
cautioned Hannah to be more careful about having
fuel bills made out properly. He said that if Hannah
did not get the discount the station attendant might.
Hannah brought up alleged incidents of unfairness
in settlements, accusing Tom Subler of cheating
him. Subler testified that he reproached Hannah for
speaking in a loud voice and that when Hannah, in
vulgar language, said he ought to take Subler out-
side and thrash him, Subler ordered him not to
make such threats in the office and to go' outside if
' On one trip Hannah received an advance of over $750 Driver Harris
received one of $1,000
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he could not quiet down. Hannah denied making
the threat. At one point in the conversation Hannah
told Tom Subler that he had 47 signed union cards
and could cause Respondent "more trouble than
[Respondent] ever dreamed of."
Tom Subler summoned Bohman, Respondent's
secretary-treasurer and a brother-in-law of Carl Su-
bler, from his home. When Bohman arrived, Tom
Subler informed him that Hannah had union cards
signed to organize the Company.' Hannah told
Bohman that Tom was accusing him of stealing and
he vehemently protested that he was making a liv-
ing and did not have to steal. One of them replied'
that it was strange that Hannah did not get the
discounts, whereas "everyone else.gets discounts."
Hannah complained that Bohman had been open-
ing his personal mail addressed to him in care of
Respondent. The mail in question was from a
woman not Hannah's wife, and Hannah had previ-
ously complained to Tom Subler and to an office
employee that his personal mail was being passed
round among the employees for them to read. He
told Bohman to forward it to his home if Respon-
dent did not want it delivered at the terminal. Boh-
man replied that Respondent 'would continue to
open all mail which' came to the terminal since on
one occasion mail addressed to a driver at the ter-
minal concerned an accident claim involving a
company vehicle. Hannah went out to his truck and
came back and displayed the union cards which he
had. At that point Bohman suggested that he and
Hannah go to Carl Subler's private office, but Han-
nah preferred to go outside. There Bohman said to
him, "I did, not know anybody was unhappy." Han-
nah replied that the Company was "making a for-
tune,"and he said, referring to the union cards, "I
am gonna give you fits." Bohman replied, "I recall
when you first came here that you had seen enough
of the union, you did not want any partof it." Han-
nah testified that Bohman advised him to get rid of
the cards and that the' Union would get him
nothing, but this was -denied by Bohman. In the
conversation" outside Hannah was more quiet ac-
cording to Bohman.
Hannah went back inside and revived his argu-
ment with Tom Subler about the fuel tickets, re-
peating, that he was making a living and did not
have to steal. He, again claimed that he was being
cheated on his `.`settle-ups," and Tom Subler, hav-
ing looked into the matter„ gave Hannah a check
for about $17 which was owing Hannah for an addi-
tional item on that day's settlement and for an un-
paid voucher submitted on the previous one. He
made no demand on Hannah in connection with the
fuel bills; in fact he refused Hannah's offer of reim-
bursement to cover the discrepancies.
On October 27 Hannah was dispatched to Nash-
ville, Tennessee. On October 28, after unloading
his truck there, he was instructed by Berger, one of
Respondent's dispatchers at Versailles and a
brother-in-law of Carl Subler, to proceed to the
plant of Miami Margarine Company in Cincinnati,
where he was to pick up a tr'ailer' destined for
Boston which had been loaded by a driver named
Seman.4 Tom Subler testified that on'October 28 he
told his father, who was in Auburndale, that he had
a load of freight to send South' and had no one to
drive it there except Hannah, who had threatened
him and who had never been South before, and that
his father said he should send him. He denied men-
tioning- to his father -that Hannah had said he had
union cards, and he testified that he could not re-
member whether or not he had mentioned Han-
nah's threat prior to the call on October 2-8. At that
period several telephone calls were made" every day
between the two terminals. On October 29? when
Hannah arrived at the margarine plant in Cincin-
nati, he met Carl Bey, who informed him that he
was not to pick up the Boston-bound trailer but was
to proceed to the Dooley Truck Plaza and there
pick up a trailer which he was to drive to Florida.
That trailer had already been loaded- by a driver
named Mogle.
The dispatch order, which Hannah found in the
trailer at the Dooley Truck Plaza, was dated Oc-
tober 29. It included notes reading, in part, "Use
EXTREME caution when opening the rear doors as
this load-is loaded to the ceiling all the way back,"
and "weigh out- before leaving Cincinnati, 0."
After hooking his tractor up with the trailer, Han-
nah had the vehicle weighed and found that the
weight on the rear axles, called the tandem axles,
was approximately 4,000 pounds over the max-
imum allowed by Ohio regulations.' He testified
that he reported this to Berger, informing him,
when asked, that the tandem was back as far as it
could go. Berger, he testified, thereupon said that
there was nothing that could be done, since the
trailer was packed full, and -that Hannah, -should
proceed to Florida, avoiding the various official
scales by using bypasses or waiting until they were
closed. Berger testified that Hannah said that he
had weighed the vehicle with the tandem forward
and that he instructed Hannah to move it back and
reweigh the vehicle, adding that; in view-of the total
weight, the tandem-axle weight would have been
3 Subler and Bohman's versions of the incident did not include this greet-
ing.
3 At one point Bohman testified that the remark had been made by him
and at another point that it had been made by Tom
4 Berger testified that he instructed Hannah to go from Nashville to the
Dooley Truck Plaza, near Cincinnati, and call from there for further in-
structions As Hannah in fact proceeded to the margarine plant and there
received further instructions from Respondent's driver-mechanic, Carl
Bey, a course of events not explained by Berger, the Trial Examiner has dis-
credited Berger 's testimony
s The tandem axles could move on tracks which had, holes spaced 6
inches apart-for pins which could anchor the axles at given points..The
farther back the tandem was pushed, the greater the portion of the trailer
weight which was transferred from the tandem axles to the drive axles.
Because of imperfect repairs the tandem on the trailer in question could
not be moved back'to the last two anchor holes.
CARL SUBLER TRUCKING, INC.
well below the maximum allowed so long as the
tandem was anchored within -three stops from the
last. He testified, further, that since Hannah had
not immediately called back, he assumed
everything was all right - and,-therefore made no
inquiry about the weight when Hannah routinely
telephoned the following day. There is a degree of
contradiction between Berger's testimony that the
trailer could not be overweight if the tandem was at
the third from the-last stop and the importance as-
cribed by Carl Subler to Hannah's arriving at the
Auburndale terminal with the tandem back only to
the second from the last stop. In view of this and of
other erroneous testimony by Berger,' the Trial Ex-
aminer has credited Hannah's testimony that he in-
formed Berger that the trailer had been weighed
with the tandem back as far as possible. Other wit-
nesses corroborated Hannah's testimony that
drivers were from time to time instructed to
proceed even though their vehicles were over-
weight, avoiding official scales, and Carl Subler ad-
mitted that this was done at times. In view of the
foregoing it is found that Berger instructed Hannah
to proceed notwithstanding that his truck was over-
weight.
Hannah arrived in Jacksonville on Monday night,
October 31. The next morning he unloaded the
Jacksonville shipment and found it approximately
1`8 cartons short. In addition one carton had been
crushed, apparently by the slamming door of the
truck, and the consignee refused to accept delivery.
Hannah testified that he informed Berger and that
Berger authorized him to throw the damaged
merchandise away, which he did. Berger admitted
the report but denied that he gave Hannah any in-
struction about the damaged carton.
At Ocala the second shipment was found to be
82 cases short,- of which fact Hannah informed
Berger. Hannah testified that Berger instructed him
to go on to the Auburndale terminal and that he,
Berger, would telephone that place. Kleinman,
Respondent's terminal manager at Auburndale,
testified that on November I he was informed that
Hannah had unloaded at Ocala and would arrive at
the terminal that evening. Berger testified that he
instructed Hannah to check the trailer to make sure
that the missing cartons were not aboard. He said
that Hannah reported that he could not crawl to the
front of the trailer because it was full there, testify-
ing specifically that the trailer had goods aboard
destined for'Miami. The dispatch order' shows no
shipment for Miami, and the record established that
Hannah emptied the trailer at Ocala.
Hannah went on to the Company's terminal at
Auburndale, Florida, arriving there at 8 or 9
o'clock on the night of Tuesday, November 1. He
introduced himself to Shaw. the assistant mechanic
6 Besides Berger's discredited testimony about Hannah 's original
dispatch, referred to above, he insisted, as described below , that Hannah's
truck included a shipment for Miami, which was contrary to the facts
T GC Exh. 2 -
805
on duty, and then got a room., He returned to the
terminal about 9, o'clock the next morning,
delivered his shipping documents, hotel and fuel
receipts, logsheets, and logbook to Ethel
Townsend, Respondent's billing clerk. He then
went out to the garage where he spoke to the
mechanics and some drivers. A short time later, in
the office, Carl-Subler questioned him about the
trip. Kleinman, the terminal manager, and
Townsend were present.
Subler testified that: Hannah reported the
shortages to him; after ascertaining from the bills
that the shortages amounted to 100 cases, he said,
"All right, Lonnie, I want to see the weight ticket";
Hannah said that he had been directed to make the
trip overweight but that he had thrown the weight
ticket away; Subler protested that with the weight
ticket he might have been able to establish whether
the merchandise had been loaded on the trailer or
removed and sold en route to Florida; after
checking Hannah's dispatch order, he reproved him
for calling the Versailles terminal about the
shortages instead of Auburndale, as he said -was
required by the instructions on the dispatch order;'
he then asked about Hannah's logs and was in-
formed by Townsend that the daily logs were in
order; he asked her if the summary of hours sheet
was up to date and she said no, and he ascertained
by his own inspection that it was 7 days behind; he
next ascertained that Hannah had not yet turned in
a vehicle condition report; and, finally, upon his
asking to see the carton of damaged merchandise,
Hannah went out to get it and returned 5 minutes
later to report that he did not know where it was.
Kleinman testified that he was occupied and heard
only part of the conversation. He stated that Han-
nah left the office to fetch the damaged carton and
returned after 5 minutes saying that he had made a
mistake and that he had left the carton at Jackson-
ville. Hannah denied leaving the office to get the
damaged carton; he testified that ' he told Subler
that Berger had authorized him to throw away the
damaged merchandise and that he had done so. He
also testified that he told Subler that he did not
open the trailer doors and that the seals were intact
at Jacksonville; that he-told Subler he knew of no
company rule requiring the retention of weight
tickets and that customarily he had handed in only
those he had paid for and therefore needed in order
to obtain reimbursement. As to his log summaries,
Hannah corroborated Subler's testimony that the
summary page was incomplete during their conver-
sation. Hannah said that when he turned the sum-
maries in they were 2 or 3 days behind; Townsend
testified that they were at most 4 days behind. Su-
bler testified that he told Hannah that he was not
accusing him of stealing the merchandise but that
" After his counsel called Sublet's attention to the dispatch order, Subler,
led by counsel, testified that the instruction in question was on another
document which, still led by counsel, he said Hannah had He did not
describe or otherwise identify such alleged document
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hannah, by throwing away the weight ticket, had
deprived him of a day in court to protect his in-
terest. He ended the conversation by stating that he
would get the FBI in on the matter.
As Townsend had been told on October 31, as
described below, that a driver was being brought to
Auburndale to be discharged for union activities,
and as Subler's conversation with Hannah on
November 2, at which she was present, was not
routine in character, the Trial Examiner does not
credit her testimony that she did not recall wit-
nessing any such conversation. In view of this eva-
sion by a witness friendly to Hannah's case, the
Trial Examiner credits the testimony of Subler and
Kleinman that Hannah left the office avowedly to
fetch the damaged carton and credits Berger's
testimony that he said nothing to Hannah with
respect to whether or not that damaged carton was
to be returned to the terminal.
Later that afternoon Kleinman told Hannah that
there was no freight going out that day and that he
should therefore get himself a motel room. Hannah
left the terminal and returned the next morning.
On Thursday morning, November 3, Subler com-
posed Hannah's discharge letter, already described,
which was typed by Townsend. Kleinman, whose
desk was back to back with Townsend's, was
present. A bus ticket to Ohio was ordered, which
Townsend fetched; and Townsend telephoned for a
taxicab. Kleinman, after ascertaining from Hannah
that his log permitted him to drive and that he
needed an advance, told Hannah that he would get
him the necessary papers to load the trailer Hannah
was to drive to Ohio. As Kleinman left Hannah, Su-
bier passed him and gave Hannah an envelope con-
taining the discharge letter, a bus ticket home, and
$50, and told Hannah that a taxicab which had just
driven up was for him. Kleinman testified:
. .. I was probably just as shocked as Mr. Han-
nah when he was discharged. Because, I was
trying to get the man out on a load of freight.
I did not know that he was being discharged.
Respondent contends that on November 3 Carl
Subler, when he discharged Hannah, knew nothing
about Hannah's union activities. Respondent admits
that on October 26 Hannah exhibited cards to Tom
Subler and Bohman and, saying they were union
cards, threatened to give Respondent "fits."
Nevertheless, Tom Subler implied that he called
Bohman on October 26 because Hannah
threatened to beat him, and he testified that when
speaking to his father on October 28 about whether
to send Hannah South for the first time, he men-
tioned the threat to him but said nothing about
Hannah's threats in connection with the union
cards. He explained that he did not deem those
statements of Hannah's important. A number of
facts detract seriously from the credibility of
Respondent's testimony. (1) There were several
telephone calls daily between Auburndale and Ver-
sailles, yet Tom Subler testified that he could not
remember whether he had told his father about
Hannah's threat before the October 28 call. (2)
Tom's explanation that he did not deem Hannah's
statement about the union cards of sufficient im-
portance to report to his father is contradicted not
only by the facts of industry life but also by Boh-
man's admitted response to Hannah's exhibition of
the cards. Before anything else was discussed, Boh-
man, who was Respondent's secretary-treasurer, in-
vited Hannah out of the dispatch room, which was
frequented by drivers, to a place where they could
talk in privacy; he showed concern at the develop-
ment by opening the discussion outside with the re-
mark that he did not know anyone was unhappy;
and he reproved Hannah by recalling that when
Hannah had first come, he had claimed to have had
enough of the Union. (3) Hannah allegedly made
two threats during the October 26 quarrel-to whip
Tom and to give Respondent trouble, but Tom
testified that he separated these out and reported
only the one to his father. (4) Both Carl and Tom
Subler revealed in their testimony that Hannah's
threat to thrash Tom, even if made, would not have
given Tom serious enough concern to cause him to
consult his father about dispatching Hannah to
Florida. Tom testified that his response to Hannah's
threat was to order him not to make threats "in the
office," and Carl testified that when Tom told him
of the threat, he asked, "Did he worry you?" a
plain expression of deprecation. (5) The discharge
letter made no mention of the threat to Tom. In
view of the foregoing Respondent has failed to
refute the imputation to Carl Subler of knowledge
of Hannah's union activities on the basis of the ad-
mitted knowledge possessed by Tom Subler and
Bohman. It is found that Carl Subler was aware of
Hannah's union activities at all times on and after
October 26.
Subler testified that the November 3 letter did
not state all his reasons for discharging Hannah and
that he also had other things in mind at the time of
the discharge. He stated that he did not think it
necessary that the letter include everything he had
in mind and that what was most pertinent were the
matters involved in the trip to Auburndale and
those which he had discussed with Hannah.
Schedule A of this Decision sets forth and discusses
the evidence as to the various violations and short-
comings ascribed by Respondent in the discharge
letter as its reasons for discharging Hannah;
Schedule B sets forth and discusses the additional
reasons alleged at the hearing.
B. Alleged Interference, Restraint, and Coercion and
Interference with the Board's Processes
Frank Shaw, Respondent's mechanic-helper, who
usually worked nights,' testified that shortly before
B Shaw started working for Respondent in 1956 in the office For a time the shop helping the mechanic greasing, servicing, and washing trailers and
he drove a truck but later his hearing became impaired and he worked in tractors Shaw wore a hearing aid when testifying
CARL SUBLER TRUCKING, INC. 807
Hannah arrived in Florida, Kleinman, during a con-
versation with him and Sims about some work on
trailers, remarked, "That when Hannah came on
the property, he would be fired for union activi-
ties." Sims_ testified to the same effect. Kleinman
denied making the statement. On February 3, 1967,
Respondent received a copy of the complaint in
this proc: eding. Shortly thereafter a conversation
took place among Shaw, Sims, and Carl Subler, in
which Shaw and Sims reported to Subler what
Kleinman had said. Subler took Shaw into the of-
fice to confront Kleinman. Shaw testified as to the
conversation in the office on that occasion:
And he asked me to tell Mr. Kleinmann what I
told him. I told Mr. Kleinmann , I says, you said
that when Hannah came on the Company pro-
perty he'd be fired for Union activity. I said,
am I right or wrong? And he said, he could
have said it, but he didn't remember saying it.
Kleinman testified that when Subler brought Shaw
into the office he, Kleinman, replied to the accusa-
tion, "Hell, no, I did not make that statement. I
could not make that statement because I did not
know then." Subler corroborated Kleinman.
Sims' testimony at the hearing, especially under
cross-examination, was spontaneous and natural
and suggested a readiness to tell freely what he
knew. While at times he was inaccurate as to dates
and sequence of events, his testimony on the whole
carried conviction and he has been credited by the
Trial Examiner as to the basic facts he testified to.
Shaw conveyed a strong impression of objectivity
and truthfulness in his testimony and has been
credited. The Trial Examiner does not attach im-
portance to the "voluntary letters" that Subler
caused Shaw, Sims, and the rest of his Auburndale
employees to swear to before a notary in prepara-
tion for the hearing. They are read by the Trial Ex-
aminer in the light of the fact that they did not deal
with matters of specific fact but with general con-
clusions, and of Subler's control over the signers'
jobs. This last factor was especially strong in the
case of Shaw, who, because of his loss of hearing
and his age, would be limited in finding other em-
ployment. Neither Kleinman nor Subler testified
with the same impact upon the Trial Examiner as
did Shaw and Sims. Kleinman's manner was par-
ticularly unconvincing when he testified that he
told Subler and Shaw that he could not have said
Hannah was to be fired because he did not know at
the time. He testified that he knew nothing of
Subler's preparations, or even intent, to discharge
Hannah until after the discharge had taken place.
For Subler to have kept such a matter secret from
his terminal manager up to the very point of Han-
nah's discharge and after Kleinman had begun the
processing of Hannah's dispatch would have been
an unusual business practice. According to Klein-
man's testimony he might have dispatched Hannah
out of the terminal and on the way to Ohio before
Subler got round to discharging him. Equally im-
probable is the notion that Kleinman was complete-
ly unaware of the pending discharge when, the day
before, he had witnessed Subler's close scrutiny of
Hannah's performance on the trip to Auburndale
and when the discharge letter was typed a few feet
from his desk by his office mate. It is found that
Kleinman admitted in February 1967 that he could
have made the statement that Hannah was to be
fired for union activities. It is also found that Klein-
man told Shaw and Sims about the end of October
1966 that Hannah was to be fired for union activi-
ties and that Respondent thereby threatened its em-
ployees with discharge and other reprisals because
of their union membership, activities, sympathies,
and desires.10
Townsend testified that the day before Hannah
arrived in Florida, Kleinman mentioned to her
"that Mr. Hannah was coming to Florida," that
Hannah "was the instigator of this Union, and they
were bringing him to Florida to fire him." She also
testified that after the discharge she remarked to
Kleinman that she could not understand the "dirty
method" by which Subler went about firing Han-
nah, and that Kleinman replied that everything in
the letter was put there for a reason, adding, as to
the reference to mail from other women, "You
don't think he is going to take that to the union
[or] board or show it to his wife, do you?" This was
denied by Kleinman who, however, did not recall
whether or not Townsend had commented to him
about the discharge. Townsend was a discharged
employee who, moreover, testified that she bore ill
will toward Carl Subler and was contemplating
bringing suit against him. Moreover, as described
elsewhere in this Decision, the Trial Examiner has
not credited her testimony that she could not recall
observing a conversation between Subler and Han-
nah on November 2 at which, it is established, she
was present. On the other hand, Kleinman and
Townsend had shared an office for 7 months, facing
each other in their work a good part of the day, and
they were still friendly enough after her discharge
for Kleinman as described below, to subject himself
to Subler's criticism by spending 40 minutes chat-
ting with her at the terminal. As Kleinman told
Sims and Shaw that Hannah was to be fired for
union activities, it would be unlikely that he would
withhold the information from his office mate and
Townsend's testimony as to Kleinman's remark is
therefore credited. Townsend's testimony about
Kleinman's alleged comment as to the reason for
including "mail from other women" in the
discharge letter is not corroborated by other
evidence or circumstances. For that reason the
Trial Examiner concludes that the General Counsel
has failed to sustain the burden of proof that such
comment was made by Kleinman.
It is found that at the end of October 1966 Klein-
man told Townsend that Hannah was to be
10 Transway, Inc, 160 NLRB 838.
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged for union activities, and that Respon-
dent thereby threatened its employees with
discharge and other reprisals because of their union
membership, activities, and desires."
The morning after Hannah's arrival Shaw came
to the terminal to see Kleinman about a matter not
connected with Respondent's business and was in-
vited by Subler into his office. There Subler asked
him whether anybody had approached him about
the Union, to which he replied, no, but that he ".. .
had heard that it was going around." During the af-
ternoon of November 3, after Hannah had been
discharged, Subler approached Harris in the shop
and asked him if he was satisfied with his 'ob. When
Harris indicated some dissatisfaction, Subler asked
him why he did not quit, to which Harris replied
that he was not that dissatisfied. Harris testified as
follows as to part of the conversation:
He asked-he told me that Mr. Hannah and
Mr. Bohman had had an argument or falling
out in Versailles, and that Mr. Hannah named
me passing out cards in Florida. And he asked
me if I was.
And then before I could answer him, he said,
I was within my legal rights ... to do so.
* * *
I told him that I hadn't passed out any cards.
Harris, who in fact, contrary to what he told Subler,
had passed out cards, told Subler that the cards had
been sent to him but that he had nothing to do with
it, which was also untrue.
At some time between November 10 and 14, dur-
ing a conversation about business matters, Subler
asked Sims "how he stood about the Union." When
Sims replied that he was neutral, Subler said, "you
can't be . . . you either got to be for it or against
it...." On November 22 Subler and Kleinman had
cocktails and dinner together. Subler chided Klein-
man for having spent 40 minutes chatting with
Townsend, who had been discharged on November
11, when she came to the terminal for her salary
and severance pay. The incident had been reported
to Subler by Sims, who did not get along well with
Kleinman. Kleinman telephoned Sims and summari-
ly discharged him, accusing Sims of a "double-
cross." Sims replied that he would talk about it to
Subler in the morning, and immediately tried to
reach Subler at his motel, but without success. A
short time later Kleinman telephoned again to the
same effect. Sims told Kleinman he was drunk and
that he would speak to Subler in the morning. At
that point Subler got on the telephone and told
Sims that Kleinman was right-Sims was discharged
and was not to go on the company property for his
tools without Subler being present. When Sims
pressed Subler for the reason,12 he said that Sims
had given himself away when he said he was neutral
about the Union. Both Subler and Kleinman
returned to the terminal that evening, where Subler
told Shaw that he had fired Sims and warned him
that if he did not remedy certain matters round the
shop, he would be fired also. The next day, round
midday, Sims and his wife spoke with Subler at the
terminal. Mrs. Sims, by arrangement, had listened
to the second telephone conversation on an exten-
sion telephone. Both Simses were upset since Mrs.
Sims was threatening to divorce her husband
because of the remark about him and Townsend.
Subler insisted that he had not "backed up" Klein-
man's discharge of Sims, as Sims alleged. In the
course of the argument Sims recalled Subler's re-
mark about his having "given himself away" by say-
ing he was neutral. Subler repeated that Sims could
not be neutral, saying, ". . . if you are for the
Union, you are against me. . . ." Subler said that
Kleinman's action in discharging Sims had been in-
effective, and he assured Sims that he was being
paid since 7 o'clock that morning. Sims finally
agreed that he would come back, and Subler laid
down conditions as to how Sims was to run the
shop if he did come back. After things had been
smoothed over, Subler confided to Sims, ". . . I
have to do everything ... even this Hannah ... I
had to fire him. . . . Bill could have fired him up
there. . . . And ... if this Union comes in here....
Hannah won't run it, because Hannah don't have
enough sense to run anything.... these Detroit and
Chicago hoods are not going to run my Company
for me ... I will sell it before they will. . . . I got
some people that is ready to buy." Sims' testimony
as to the November 22 to 23 episode has been
credited by the Trial Examiner notwithstanding that
it was not included in his first affidavit given during
the investigation, which did mention Subler's re-
mark about being neutral. He called the Board
agent and 2 days later gave a second affidavit in
which he did recount it. He explained that
originally he ". . . wanted to stay out of it ... as
much as possible," but then had second thoughts.
In view of the involvement of the episode with
Sims' marital affairs, his explanation of its omission
from the first affidavit is plausible and has been
credited. On the other hand, Subler did not explain
his failure to return Sims' call to him at his motel
other than his statement to the clerk that he needed
a good night's rest, whereupon, he testified, he
drove to • the terminal and spent a substantial
amount of time there. Subler interpreted Sims'
protest of neutrality as betraying a prounion point
Transk ay, Inc , supra
2 Sims testified that Subler's first answer was that he knew all about Sims
and Townsend, characterizing the latter in a derogatory fashion
CARL SUBLER TRUCKING, INC. 809
of view, and when he joined Kleinman in discharg-
ing Sims, it was because of such presumed point of
view. It is found that Respondent discharged Sims
on November 22 in order to discourage union
membership. It is further found that on November
23 Respondent threatened to sell its business and
thus threatened to deprive its employees of employ-
ment if they chose to be represented by the Union.
In January 1967 Sims telephoned Subler and, on
his own initiative, told, him that he had informed
DuRose, the Board investigator, of-, the tandem
episode and their conversation about his being
neutral. In February, on the occasion when Sims
and Shaw told Subler about Kleinman's statement
that Hannah was to be fired, Subler asked Sims
whether he had received a call from DuRose and
what he had told him. Sims replied that he had told
DuRose what he had already reported to Subler in
their January telephone conversation, which, at
Subler's request, he repeated. The effect of inter-
rogation of employees by their employers about
their participation in Board proceedings is to inhibit
them from speaking freely in aid of investigations
or of preparation for hearings. Such questioning in-
terferes with the Board's processes. 13 It is not
material that when Subler interrogated him, Sims
possessed only the same information as he had al-
ready furnished Subler on his own initiative.
Respondent's interrogation nevertheless tended to
have the same inhibitory effect. It is found that by
interrogating Sims about his conversations with a
Board agent, Respondent interfered with the
Board's processes.
In or about January 1967 Subler had a conversa-
tion with Miller at the Versailles terminal concern-
ing some things that were wrong with his truck and
remarks by Miller to Respondent's manager at
another terminal about Subler and Hannah. Subler
then asked Miller's opinion of John Savage, a
recently hired employee. When Miller commented
favorably, Subler replied that Savage's previous em-
ployer had not given him a good recommendation
but had informed Subler that Savage had been in-
volved in union activities and was charged with
being an instigator of trouble at his previous place
of employment, It is found that Subler's comment
on Savage, given in response to Miller's favorable
comment which had been elicited by Subler, con-
stituted a^ threat to Miller's job security and was
coercive. Subler also asked Miller whether he knew
Hannah, and whether Hannah had asked him to
sign a card, whether he had signed a card, and
whether he knew anyone who had signed a card.
About January 1967 Subler asked Curtis Murray
and James Combs, both company drivers, whether
anybody had approached them about the Union.
Murray replied in the negative. Subler said he
would sell the business rather than let it "go
union ," and he claimed that he had a good offer.
In the middle of March 1967 Kleinman told Sims
of a conversation he had had with Hayes, the traffic
manager for a customer of Respondent's in the Au-
burndale area, who had informed him that Miller
and Wertman, two of Respondent's drivers, had
gone to the Labor Board so that the Company
could not fire them. Sims testified:
. he said I shot a teletype right away to Mr.
Subler. And said, you know what the answer I
got back from Mr. Subler was? I said, no. He
said, he said, you think if I'd give him a new
tractor it would make any difference? And
said, I told him no, that I didn't think so,
because both the boys had pretty good trac-
tors.
Kleinman denied Sims' testimony but, pursuant to
subpena , Respondent produced a teletype sent
from Auburndale to Versailles, reading in part as
follows:
A-2 9:25 AM 3/15/67 TO CARL SUBLER
I just had a long session twice this morning
with Henry Hayes at Kraft.t4
Carl:
Henry Hayes just gave me some vital informa-
tion. He claims that his information is the best
and if he had listened to this same source of in-
formation back in the spring of '1965. That he
might have prevented the layoff. Victor Wert-
man and LeRoy Miller are going to the Federal
Labor Board in Tampa and go on record so
that they won't be in danger of losing their jobs
because of union activities on their part.
Chet.
The Trial Examiner has credited Sims' account of
the conversation. Kleinman's statement to Sims in-
dicated that Respondent was ready to offer its em-
ployees the benefit of more desirable tractors or
other working - conditions in order to discourage
them from exercising their right to use the facilities
of the Board and was therefore coercive.
The date of the above teletype, March 15, was 8
days before the opening of the hearing in Green-
ville. On March 24 the hearing recessed at Green-
ville to resume at Lakeland, Florida, near Auburn-
dale, on Tuesday, April 18.
On Friday, April 14, 1967, when Miller arrived at
the Versailles terminal, he was asked by Carl Subler
how things were. Miller replied with a complaint
Waggoner Corporation , 162 NLRB 1161
The teletype dealt for the most part with a conversation with Hayes
about an unverifiable shortage of 60 cases of merchandise for which Kraft
finally agreed to give credit , stating , however, that discrepancies were to be
resolved in the future at the warehouse, "regardless of how long they tie
their dock up " The teletype stated, "this is the last time that they are
going to give us credit for short "
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he and another employee had been unjustly ac-
cused of going to the NLRB. Subler asked him if he
had had anything to do with the Union, and he said
no. Subler thereupon accused him of lying and
asked him whether he had not had Van Amig,
another employee, sign a card, which Miller con-
fessed was true. Subler testified that he asked
Miller, "How do you expect me to trust you making
out true and accurate logs, when ... you lied to me
here without even being asked? . . ." According to
Miller's testimony, which is credited over Subler's,
Miller opened the subject of whether he had been
to the Labor Board but not the subject of any other
union activities. That was opened by Subler's ask-
ing him if he had had anything to do with the
Union. Moreover, Subler, by his own testimony, did
not let the matter rest with Miller's denial; he
proved to Miller that he had answered the inter-
rogation untruthfully, an outcome which was
foreseeable15 and by its nature resulted in a threat
to Miller's employment status when uncovered. Su-
bler in fact made the threat to Miller's job explicit
by tieing in his untruthful answers about his union
activities with his reliability on the job.
On Friday evening, April 14, Harris informed
Kleinman that he could not go out Monday since he
had been subpenaed for the hearing. He testified:
Well, he told me that he had freight to move,
and that if I couldn't go Monday morning, that
[I] could get all the things out of the truck, and
get [off] the property, only he used very ob-
scene language, called me all different kinds of
dirty names that could be called, all kinds of
dirty son-of-bitches and all that.
* *
Well, I told him if he was out there, thinking
I was going to slap him so that he could fire me
he was wrong, I was not going to hit him. And
then he run up and swung at me two or three
times, and after I got in my car, he-glass
down, he run up and hit me.
Harris asked Kleinman whether he was discharged,
to which Kleinman replied by telling him to get his
things and get off the property. He testified that at
first he had -thought he was discharged, but that
when Kleinman did not - respond to his direct
question, he assumed not. The Trial Examiner has
credited Harris' account of the conversation and
finds that Kleinman verbally abused Harris, and
threatened him with violence" and loss of employ-
ment because he cooperated with the General
Counsel and because he had been subpenaed to tes-
tify. It is also found that Harris was not actually
discharged.
That same evening Victor Wertman, the second
employee mentioned in Kleinman's March 15 tele-
type to Subler, arrived at the Auburndale terminal
at sometime after 8 o'clock. George Schuette. a
"Northern" driver who had had dinner with Klein-
man that day, approached Wertman and said, "We
are tired of ... you trying to ram this union down
our throats." Wertman replied that he was neutral.
He testified that the argument continued a while
and that as he was terminating the discussion Klein-
man asked him to come into the office. Schuette
accompanied them, persisting in telling Wertman
that he wanted "no part of it," and Wertman insist-
ing that he had formed no opinion. He testified: -
And then Chet raised out of the chair, and he
said, I'll settle this .thing right away. He said,
you are fired. And I said, what reason am I
fired for? And he says, I hired you, I'll fire you.
So I asked him, I says, do you mean that? And
he says, well, he says, I said all I'm going to
say. So I says, well, I'm going to find out about
this. And he said, well, you can go to the Labor
Relations Board like you did before. And I said
I was never to the Labor Relations Board. And
he says, well, Henry Hayes called me and told
me that you went to the Labor Relations Board
about this union.
Wertman admitted having engaged in a shouting
match with Schuette, but he denied that Kleinman
warned him to desist or be fired. The next morning
Kleinman telephoned Wertman and asked him if he
would be ready to go out on Monday. When Wert-
man said he thought he had been fired, Kleinman
replied, "don't be silly ... I just done that for your
own good." Wertman said he would be ready. The
Trial Examiner credits Wertman's testimony as to
his conversations with Kleinman and Schuette, and
particularly the testimony that he and Schuette
were arguing about the Union. While Wertman, by
his own testimony, did not espouse the cause of the
Union during the argument and had not been sub-
penaed, Kleinman's later reference to Henry Hayes'
report that Wertman had gone to the Labor Board
warrants the inference that he considered Wertman
prounion and that he expected him to testify on be-
half of the General Counsel. It is found that
Respondent discharged Wertman to discourage
membership in the Union and because he was ex-
pected to testify on behalf of the General Counsel.
At noontime on Saturday, April 15, at the Au-
burndale terminal , Curtis Murray received his
dispatch orders to leave on a trip to Indiana at 2
p.m. Before leaving he received-a subpena to ap-
pear at the hearing in this case on Tuesday, April
18. He informed Nipper, the dispatcher, who told
him to tell Kleinman . Unable to reach Kleinman,
Murray called Tom Subler and Richter at Ver-
sailles, and they told him to continue to try to get
Kleinman . He finally brought the tractor- trailer
back to the terminal, where, by previous arrange-
ment , Kleinman met him. Kleinman asked him if he
Bourne Co v N L.R B., 332 F 2d 47, 48 (C.A 2).
'The Trial Examiner infers from Harris' emphasis upon Kleinman's
"swinging" at him and his "cussing" that when Kleinman finally suc-
ceeded in striking him, the blow was not substantial.
CARL SUBLER TRUCKING, INC
would take the load out if a "turn-around" was ar-
ranged whereby he would be back Monday after-
noon-i.e., meet a driver coming South and
exchange trailers with him. Murray agreed and got
ready for the trip. It was then discovered that a
minor repair was needed and Sims, the mechanic,
was called to'fix it. About 6:30 p.m., as Sims was
about to start work on the repair, Carl Subler, who
had arrived from Ohio that day, came in. In
response to his questions Sims told him where the
truck was going and that Murray was driving. Mur-
ray asked Subler the meaning of his subpena, to
which Subler replied that he knew nothing about it
and was not worrying about it. Remarking that he
wanted to speak to Kleinman , Subler went into the
office. He came out a short time later and told Sims
to stop work. He told Murray he was not going out
on the truck and that he would not go out until
after the hearing, at which time he would be told
when and if he were to go out. Subler testified that
what he said was, "Curtis, you go home, this truck's
not going out until after the hearing. And then at
that time I 'll decide whether you go long distance
or stay in the Florida area." Subler also testified
that Murray did not tell him about the subpena
until after he had said that the truck was not going
out and Sims had gone home. He testified that he
told Murray he did not care to hear about the sub-
pena 'and that he said to Murray, "The thing here
involved with you, Curtis, is a safety factor." He
said that he proceeded to review various violations
of speed laws and company regulations by Murray.
Subler further testified that the previous week he
had told Respondent's safety director "to take ...
[Murray] off the road until we are satisfied that
he's going to operate under safe conditions. And I
said I wanted this done immediately. - We sent a
teletype to Auburndale and said that we didn't want
Curtis Murray making any more long runs until
further notice, that I'm coming to Florida in the
next week or 10 days, and I want to have to talk
with him." Respondent placed in evidence a letter,
dated' April 8, 1967, signed by Kleinman and ad-
dressed to "Mr. H. M. Richters, Safety Director,
Carl Subler Trucking, In. P. O. Box 81, Versailles,
Ohio 45380." The letter dealt with-various aspects
of Murray's work performance and included the
following:
He was traveling 42 mph in a 35 mph zone. I
have talked to Curtis Murray on numerous oc-
casions where speeding is concerned , such as-
one of these vehicles when loaded grosses
73,000# standing still. At 25 mph -it doubles
this weight, which makes it become a projectile
and keeps increasing this weight with speed.
*
"The Trial Examiner notes that prior to the conversation Nipper, the
dispatcher, Kleinman, Tom Subler, and Richter all knew about Murray's
subpena Presumably Carl Subler knew.
811
I personally believe that he should be relieved
of duty.
Respondent has offered no explanation of how it
would happen that Kleinman would dispatch Mur-
ray to Indiana despite his own recommendation
that Murray be discharged and a teletype from Ver-
sailles directing that he be taken off long runs until
further notice . It is noted, also, that Kleinman's
letter was plainly composed with litigation in mind.
It is unlikely that a terminal manager writing in the
regular course of business would include his
detailed statements allegedly made to a reckless
driver about the weight of the Company's vehicle,
and its theoretical increase in weight at 25 miles
per hour, ". . . which makes it become a projectile
and keeps increasing this weight with speed" in a
letter addressed to the firm's safety director. The
Trial Examiner does not credit Subler's testimony
but credits Sims and Murray and finds that after
Murray told him that he had been subpenaed'17 Su-
bler laid Murray off and told him that after the
hearing he would be informed if and when he
would go out. It is further found that Respondent
laid Murray off because he had been subpenaed,
and in retaliation for cooperating with the General
Counsel. It is also found that Sims was not told on
this occasion that Sims was terminated.
It is found that by its layoff of Curtis Murray
Respondent engaged in discrimination with respect
to his tenure of employment and terms and condi-
tions of employment, thereby discouraging mem-
bership in the Union.
C. Concluding Findings as to Interference with the
Board's Processes and as to the Other Interference,
Restraint, and Coercion
It is found that by its interrogation of Sims as to
what he had told DuRose, and by the actions
described above which were taken on April 14 and
15 against Harris, Wertman, and Murray because
they had cooperated with the General Counsel and
had been subpenaed to testify or were expected to
testify, Respondent interfered with the Board's
processes: The right to participate without coercion
or restraint in Board proceedings to secure the
rights guaranteed in Section 7 of the Act is funda-
mental to the protection of those rights.18 It is
found that by this conduct Respondent interfered
with, restrained, and coerced its employees in the
exercise of their rights under the Act.
Subler's interrogation of Shaw, Harris, Sims,
Miller, Murray, and Combs took place in the con-
text of Hannah's discharge, found below to have
been discriminatory. Moreover, Subler accom-
panied most of his questioning with comments
which plainly implied threats of loss of employment
if the employees persisted in being unionized. In
" Alternian Transport Lines, Inc , 127 NLRB 803, see also Allure Shoe
Corporation, 123 NLRB 717, 730, enfd as modified 227 F 2d 231 (C A.
5)
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
view of the foregoing, and as Respondent has
proved no legitimate need for the information
which Subler sought, it is found that the interroga-
tion was coercive.
It is further found that by its threats to sell its
business and to discharge employees and by its ac-
tual discharge of employees, by its promise of
benefits, and by its coercive interrogation of em-
ployees, and its verbal abuse of, and threats of .
violence against, employees, all described above,
Respondent further interfered with, restrained, and
coerced its employees in the exercise of their rights
under the Act.
D. Concluding Findings as to Hannah's Discharge
By his statement on October 26 that Hannah had
previously claimed to have had enough of the
Union, Bohman reproached Hannah for his activi-
ties in obtaining the union cards. Moreover, as the
statement referred to the time when Hannah "first
came here," the necessary implication was that he
was being reproved for not living up to representa-
tions made by him either when newly employed and
thus on trial or when obtaining employment. Such
reproval based upon representations made at the
inception of the employment relationship carries
with it a necessary threat to such relationship
because the employee has exercised his statutory
rights and is therefore coercive and violative of the
Act.
Hannah's testimony that Bohman told him that
he should get rid of the union cards was denied by
Bohman . Notwithstanding Tom Subler's and Boh-
man's testimony about the noise Hannah was mak-
ing, the Trial Examiner infers from all the
testimony that Bohman's reason for asking him to
continue the discussion elsewhere was that he did
not wish to be overheard by the employees who
frequented the dispatch room. In view of the fact
that Bohman sought privacy to speak to Hannah,
and as his remarks, even as testified to by him,
plainly suggested that Hannah ought to give up his
organizational activities, the Trial Examiner credits
Hannah's testimony and finds that Bohman sug-
gested to him that he get rid of the cards and ad-
vised him to abandon his activities on behalf of the
Union. It is found that Bohman's suggestion and ad-
vice were coercive and violative of the Act. Boh-
man's own testimony also lends some support to
Hannah's testimony that Respondent's attitude
towards unionization was discussed at the time he
was hired and that the attitude was unfavorable.
The Trial Examiner therefore credits Hannah's
testimony that when he was hired, Subler told him
that Respondent wanted no union.
Within 3 days after Respondent learned and dis-
approved of Hannah's having obtained signed union
cards, Respondent decided to revoke his dispatch
to Boston and send him South instead, where Carl
Subler could deal with him. Because of a desire to
conceal this move Berger testified that it had not
been decided to send Hannah to Boston. The
testimony of Respondent's witnesses was also in-
fluenced by a desire to conceal Carl Subler's
knowledge of Hannah's union activities at the time
he discharged Hannah and even before the change
in his assignment was made. On November 2, when
Hannah reported in Auburndale, Subler was wait-
ing, ready to "throw the book at him" for alleged
violations. On November 3 Subler listed those
violations , with some others , in the discharge letter.
At that time he dropped one violation, namely, the
fact that Hannah had called Versailles instead of
Auburndale from Ocala, for which Subler had
reproved him on November 2 on the false ground
that his dispatch order so required and on the spe-
cious ground that it made a difference. At the hear-
ing Subler came up with additional violations, most
of them searched out after the discharge, accom-
panied by contradictory and altogether unconvinc-
ing testimony as to why they had been omitted from
the discharge letter.' Most of the charges, both
listed and unlisted, were plainly invalid, the rest
doubtful, and, as found in Schedules A and B of
this Decision, all pretextual. Respondent has raised
no question as to Hannah's basic general efficiency
and reliability as a driver who was regularly en-
trusted with valuable equipment and merchandise
and with cash advances in substantial amounts. In
view of the foregoing findings, and of the findings
that Kleinman, shortly before Hannah's arrival in
Auburndale, told Shaw, Sims, and Townsend that
Hannah was to be fired for union activities, and of
the highly significant timing of the discharge, it is
found that Respondent discharged Hannah because
of his union activities.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section 1, above, have a close, in-
timate, and substantial relationship to trade, traffic,
and commerce among the several States and tend
to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
As it has been found that Respondent has en-
gaged in certain unfair labor practices, it is recom-
mended that the Board issue the Recommended
Order set forth below requiring Respondent to
cease and desist from said unfair labor practices
and to take certain affirmative action which will ef-
fectuate the policies of the Act.
19 Hurd Corporation , 143 NLRB 306, 318
CARL SUBLER TRUCKING, INC. 813
Respondent's coercive and discriminatory actions
with respect to the employees subpenaed for, or be-
lieved by it to be about to testify in, this proceeding
impinge upon an area of peculiar sensitivity with
respect to the rights guaranteed employees under
the Act. The Board's ability to secure vindication of
those rights depends in large measure upon its abili-
ty to hear testimony from witnesses,20 and the
Board must protect the integrity of the processes
whereby such testimony is heard. It is, accordingly,
recommended that Respondent be required to
cease and desist not only from the specific conduct
here engaged in, but from interfering in any other
manner with the processes of the Board. Moreover,
the breadth and intensity of Respondent's attack on
its employees' rights-the discriminatory discharge
of Hannah and Murray, the interrogation of and the
various threats to the employees, Respondent's
readiness to better employees' working conditions
to discourage their resort to or cooperation with
the Board, and the application of its power over its
employees' livelihood to discourage employees
from allowing the Board to hear their testimony-
indicate a disposition on Respondent's part to inter-
fere with the employees in the exercise of their
rights guaranteed in Section 7 of the Act. For this
reason it is recommended also that Respondent be
required to cease and' desist from infringing in any
manner on those rights.
It is also recommended that Respondent reinstate
Hannah and Murray to their former or substantially
equivalent positions, without prejudice to their
seniority and other rights and privileges, and that
they be made whole for any loss of earnings suf-
fered by reason of the discrimination against
them.21 The amounts paid to each of said em-
ployees as backpay shall be a sum of money equal
to what he would have earned from the date of his
discharge or layoff to the date of Respondent's
offer of reinstatement, less his net earnings during
said period, computed in accordance with the for-
mula stated in F. W. Woolworth Company,22 with in-
terest thereon at the rate of 6 percent per annum,
to be computed in the manner described in Isis
Plumbing & Heating Co." It is recommended also
that Respondent preserve and, upon request, make
available to the Board payroll, log, and other
records to facilitate the computation of backpay.
Upon the basis of the foregoing findings of fact
and of the entire record in this case, the Trial Ex-
aminer makes the following:
CONCLUSIONS OF LAW
1. Respondent, Carl Subler Trucking, Inc., is en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2° See Certain-Teed Products Corporation, 147 NLRB 1517, 1520
21 The remedy of reinstatement with backpay would be appropriate with
respect to Murray even though it were found that Respondent's action
against him constituted only a violation of Section 8(a)(1) of the Act Gul-
2. Respondent is, and at all times material has
been, an employer within the meaning of Section
2(2) of the Act.
3. International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, is a labor organization within the meaning of
Section 2(5) of the Act.
4. By discriminatorily terminating the employ-
ment of Lonnie Hannah, Jr., and of Curtis Murray,
Respondent has engaged in and is engaging in un-
fair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
5. By interfering with, restraining, and coercing
employees in the exercise of rights guaranteed in
Section 7 of the Act, Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
6. The unfair labor practices described above
are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law, and upon the entire record
in this case, and pursuant to Section 10(c) of the
National Labor Relations Act, as amended,
Respondent, Carl Subler Trucking, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, laying off, suspending, or other-
wise discriminating against employees in regard to
their hire or tenure of employment or any term or
condition of employment because of their member-
ship in, or activities on behalf of, International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any
other labor organization, or because they have been
subpenaed to testify before the Board, or because
they have cooperated with agents of the Board or
its General Counsel.
(b) Interrogating employees concerning the
union membership, activities, or desires of em-
ployees in a manner or under circumstances con-
stituting interference, restraint, or coercion within
the meaning of Section 8,(a)(1) of the Act.
(c) Threatening to sell its business if the em-
ployees designate the Union or any other labor or-
ganization as their bargaining representative.
(d) Promising employees benefits as a reward
for refraining from resorting to the processes of the
Board or from cooperating with agents of the Board
or its General Counsel.
(e) Interfering with the processes of the Board
by interrogating employees as to information they
let Gin Company, Inc v N L R.B , 179 F 2d 499 (C A 5), enfg 83 NLRB
I So far as Sims and Wertman are concerned, they were reinstated without
any loss of time or earnings
22 90 NLRB 289
23 138 NLRB 716
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have given to agents of the Board or its General
Counsel, or by verbally abusing, discharging,
suspending, laying off, or physically attacking em-
ployees, or by so threatening, because they have
been subpenaed to testify before the Board or are
expected to testify before the Board, or have
cooperated with agents of the Board or its General
Counsel.
(f) In any other manner interfering with the
processes of the Board.
(g) In any other manner interfering with,
restraining, or coercing employees in the exercise
of the right to self-organization, to form, join, or
assist the Union or any other labor organization, to
bargain collectively through representatives of their
own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or
all such activities, except to the extent that such
right might be affected by an agreement requiring
membership in a labor organization as a condition
of employment as authorized in Section 8(a)(3) of
the Act.
2. Take the following affirmative action which it
is found will effectuate the policies of the Act:
(a) Offer Lonnie Hannah, Jr., and Curtis Murray
immediate and full reinstatement to their former or
substantially equivalent positions without prejudice
to their seniority and other rights and privileges.
(b) Make Lonnie Hannah, Jr., and Curtis Mur-
ray whole for any loss of earnings they may have
suffered as a result of the discrimination against
them in the manner described above in section V of
this Decision, entitled "The Remedy."
(c) Notify Lonnie Hannah and Curtis Murray, if
presently serving in the Armed Forces of the
United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
(d) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all log records, social security payment
records, personnel records and reports, and all
other data necessary to analyze and compute the
backpay required by this Order.
(e) Post at its offices and places of business co-
pies of the attached notice marked "Appendix. "24
Copies of said notice, to be furnished by the Re-
gional Director for Region 8, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted, in Respondent's terminals at Versailles,
Ohio; Greenville, Michigan; Portland, Maine;
Presque Isle, Maine; and Auburndale, Florida.25
Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director for Region 8, in
writing, within 20 days from the receipt of this
Recommended Order, what steps Respondent has
taken to comply herewith.26
IT IS ALSO RECOMMENDED that the complaint be
dismissed insofar as it alleges that Harris was inter-
rogated about his testimony given to the Board,
that Sims was terminated on April 15, 1967, and
that Bohman interrogated employees on October
26, 1967.
2' In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
2' The notice to be posted in Auburndale, Florida, shall have deleted
from the sixth indented paragraph the following phrase "except to the ex-
tent that such rights might be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as authorized in
Section 8(a)(3) of the Act "
26 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 8, in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith
170 NLRB No 89-TSA-4
APPENDIX
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 Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that
WE WILL NOT discharge, layoff, suspend, or
otherwise discriminate against employees
because of their membership in or activities on
behalf of International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America, or any other labor organization, or
because they have been subpenaed to testify
before the Board, or because they have
cooperated with agents of the Board or its
General Counsel, nor will we threaten to do so.
WE WILL NOT question employees concern-
ing their union membership, activities, or
desires in a way that restrains or coerces them.
WE WILL NOT threaten to sell our business if
the employees designate the IBT or any other
labor organization as their bargaining represen-
tative.
WE WILL NOT promise employees benefits as
a reward for not going to the NLRB or for not
cooperating with agents of the NLRB or its
General Counsel.
WE WILL NOT verbally abuse, discharge, lay
off, suspend, or physically attack employees
because they have been subpenaed to testify
before the NLRB or are expected to testify be-
fore the NLRB, or because they have
CARL SUBLER TRUCKING, INC. 815
cooperated with agents of the NLRB or its
General Counsel, nor will we threaten any of
the above.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of their right to self-organization, to bar-
gain collectively through representatives of
their own choosing, or to engage in other con-
certed activities for the purpose of collective
bargaining or other mutual aid or protection,
or to refrain from any or all such activities, ex-
cept to the extent that such rights might be af-
fected by an agreement requiring membership
in a labor organization as a condition of em-
ployment as authorized in Section 8(a)(3) of
the Act.
WE WILL offer Lonnie Hannah, Jr., and Cur-
tis Murray immediate and full reinstatement to
their former or substantially equivalent posi-
tions without prejudice to their seniority and
other rights and privileges and will make them
whole for any loss of earnings they may have
suffered as a result of the discrimination
against them.
WE WILL notify Lonnie Hannah, Jr., and
Curtis Murray if presently serving in the
Armed Forces of the United States of their
right to full reinstatement upon application in
accordance with the Selective Service Act and
the Universal Military Training and Service
Act, as amended, after discharge from the
Armed Forces.
CARL SUBLER TRUCKING,
INC.
(Employer)
near the maximum allowable on its route, and that
the weight ticket be mailed to the Versailles office
along with the daily logsheets. He stated that 90
percent of weighings had to be paid for and that it
made no difference whether or not the driver was
entitled to reimbursement for a weighing fee; all
weight tickets had to be mailed in. Respondent did
not adduce corroboration of this testimony. Han-
nah testified that he sometimes mailed free weight
tickets in and sometimes did not, but that it was not
required. Harris, another driver, testified that he
mailed weight tickets in only when he desired reim-
bursement. He produced at the hearing a weight
ticket dated February 6, 1967, which he still had in
his possession; he had never been called to account
for failing to mail it in. The ticket' showed a fee
paid, and Harris testified that he had merely forgot-
ten to mail it in. Harris also testified that the gross
weight of a loaded tractor-trailer would be substan-
tially affected by a number of variables other than
the freight it carried, including rain, mud, snow,
and, especially, fuel. He testified that tractor, tanks
had capacities ranging from 60 to 120 gallons and
that he thought the diesel fuel used weighed ap-
proximately 8 pounds to the gallon.' Berger, the
dispatcher at Versailles to whom Hannah reported
the shortages, testified that he called International
Fruit Company, the shipper, and reported the
shortage on the morning and afternoon of
November 2, and made a third call on the after-
noon of November 3, when he spoke to the
manager, and that he reported these steps to Subler
on November 2 and 3. He further testified that no
inquiries had been made of International Fruit
Company after November 3, that Respondent never
received a claim, or paid, for the shortage, and that
no representative of International Fruit Company
Dated By ever called back about the matter. Subler testified
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive 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, 720 Bulkley Building, 1501 Euclid Avenue,
Cleveland, Ohio 44115, Telephone 621-4465.
SCHEDULE A
VIOLATIONS LISTED IN THE DISCHARGE LETTER
The Weight Ticket and the Shortages: Subler
testified that the Company's policy required that
every truck be weighed if its weight was anywhere
that he finally decided not to call the FBI. Respon-
dent made no effort to get further information
about the missing cartons after November 3 and In-
ternational Fruit Company made no claim against
Respondent although the loss was more than 6
months old at the time of the hearing. So far as the
present case is concerned, it must be inferred that
the 100 cartons had not been placed on the truck.
Kleinman's March 15 teletype about the disputes
with Kraft shows that apparent shortages were a
problem that Respondent encountered with
frequency. While Respondent claims, as discussed
below, that Hannah engaged in expense-account ir-
regularities, there is not the slightest suggestion in
his employment history of his having engaged in, or
having been suspected of engaging in, pilferage. Su-
bler was careful not to accuse him, except by in-
nuendo, of stealing the merchandise;- and the
discharge letter does not do so even by innuendo.
The Trial Examiner rejects the contention in
G C Exh 4
I n fact diesel fuel weighs dust over 7 pounds per gallon See page 455.
"Petroleum Facts and Figures." America Petroleum Institute, 1959
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's brief that Subler thought Hannah had
sold the merchandise. Subler's peremptory demand
on November 2 for immediate production of the
weight ticket is suspect. According to Subler's own
testimony Hannah should not have had it in his pos-
session but ought to have mailed it to Versailles
with his daily log on October 29 or 30. Respondent
did not 'bring in fee-less weight tickets to refute
Harris and Hannah's testimony that the tickets were
not required except for obtaining reimbursement.
Moreover, Respondent has failed to prove that it
ever used a weight ticket to determine-shortages or
that the weight ticket would have been of use in
ascertaining whether the missing merchandise had
in fact; been placed aboard the trailer in Cincinnati.
Even assuming, what had not been proved, that the
weight of the 100 cartons and the weight of the rest
of the'cargo could have been reconstructed by not
unreasonable effort with fair accuracy, comparison
of those items with the weight shown on Hannah's
weight 'ticket would have been unreliable because
of the variable factors which could substantially af-
fect the vehicle's, and hence the gross, weight, such
as mud , moisture, snow, and fuel. Subler's
testimony with respect to the weight ticket is not
credited. It is found that in discharging Hannah
Respon'dent' was not motivated by his failure to
keep the weight ticket or by any belief on Subler's
part that Hannah had sold the merchandise or that
the weight ticket would have been of use in
establishing whether or not the missing cartons had
been placed on the trailer.
The', Damaged Carton: Hannah testified, without
contradiction, that the damaged carton contained
foodstuffs in six pint-sized plastic containers similar
to those' commonly used for cottage cheese, and
measured about 14 by 9 by 5 inches; all six con-
tainers in the carton were damaged, with their lids
off and the contents running out and getting on
other , merchandise; and one or two of the con-
tainers were completely empty and the others
partly so. Berger testified that the company policy
is to bring all damaged goods to the company ter-
minal and that he had never instructed a driver to
dump damaged merchandise. He stated however
that broken glass jars were to be discarded-"if
there is no merchandise except pieces of broken
glass, if the merchandise would flow away...."
Hannah testified that Berger frequently told groups
of drivers to bring back merchandise that was not
too badly damaged. He also stated, however, that
on several occasions Berger had authorized him to
give damaged merchandise to men working at the
place where he was loading or unloading and that
at times he had taken it on himself to do that
without asking. On the basis of the testimony of
Hannah and of Respondent' s witnesses it is found
that what Respondent required to be brought back
was merchandise that was salvageable. Hannah was
in a better position than Berger to recall the con-
tents of the damaged carton and the Trial Examiner
accepts his testimony rather than Berger's as to
whether the diced fruit or cake mix in question was
dry, as testified by Berger, or was fl' wing and
sticky, as testified by Hannah. Hannah's testimony
that all the, covers had come off was uncontradicted
and, in view of the type of the containers, plausible.
What was involved was 6 pints of foodstuffs which
had become unsalvageable through exposure to
probable contamination on the trailer and the
receiving dock and which would have been a
nuisance to bring back to the terminal because of
the partially spilled contents. The issue is whether
Respondent's regulations so clearly required Han-
nah to expend the time and effort to return it to the
terminal that Subler would regard his failure to do
so a reason for his discharge. The fact that when
Subler had Hannah "on the carpet" he succeeded
in inducing guilty and confused- conduct on Han-
nah's part does not establish that Subler regarded
Hannah's disposal of the damaged carton as a
matter of great moment. In view 'of the small
amount of merchandise involved and of the serious
question as to its salvageability, the absence of
evidence that Hannah had ever engaged in pil-
ferage, and of the fact that Respondent advanced a
number of demonstrably invalid reasons for Han-
nah's discharge, as discussed elsewhere in this Deci-
sion, the Trial Examiner does -not credit Subler's
testimony that Hannah's disposal -of the damaged
carton or his actions when Subler questioned him
motivated Subler to any degree in discharging Han-
nah.
The Tandem: Upon reading the discharge letter
on November 3, with its charge, "You also failed to
slide your tandem back, which could have caused
you to be overloaded on the trailer axles," Hannah
told Subler that the tandem could not go back any
farther . Sims, the mechanic, tried to push the tan-
dem back all the way but failed, and Subler con-
ceded to-Hannah that he had not been able to slide
the tandem back. Subler remarked to Sims, how-
ever, that with the trailer fully loaded the tandem
would slide back, and several days later when the
-trailer was loaded, he had Sims try again, but
without success, even after ' Sims cleaned the grit
from the tracks and got a sledge hammer, which
both of them used on the tandem, but to no avail.
Subler finally conceded that it could not be done.
As to the accompanying charge that the vehicle
was overweight, it has already been found that
Berger authorized Hannah to proceed despite the
weight.
Respondent offered no evidence to rebut the in-
ference of discriminatory motive arising from the
invalidity of its charge with respect to the tandem.
On the contrary Subler's failure to seek an explana-
tion before discharging Hannah, and his personal
participation in the efforts after Hannah's discharge
to get the tandem to slide back warrant the in-
ference that he was not trying to get his equipment
in better shape but was, rather, trying to make a
pretextual charge against Hannah hold.
CARL SUBLER TRUCKING, INC.
The Vehicle Condition Report : On November 2
Subler told Sims that Hannah had failed to turn in a
vehicle condition report as required by Interstate
Commerce Commission regulations when he ar-
rived at the terminal. Sims replied that Hannah had
subsequently3 made out the report. He added that
other drivers failed to make out their vehicle condi-
tion reports immediately upon arrival and told Su-
bler that he often had to call them at their homes to
find out what the trouble was with their tractors.
Harris testified that on a number of occasions when
terminating a trip at night he had not filed a vehicle
condition report until the next day and that he had
never been criticized for that . Kleinman, the ter-
minal manager , during cross -examination about an
episode discussed above concerning drivers Wert-
man and Schuette , testified that on April 14, 1967,
Schuette , upon arriving at the Auburndale terminal
about noontime filed a • vehicle condition report.
After issuance of a subpena for the report and deni-
al of a petition to revoke the subpena, it was
established that Schuette had failed to file the re-
port that day. Hannah 's failure to comply with the
requirement that he file a vehicle condition report
"upon - arrival at the terminal " was in accordance
with common practice , a fact to which Subler's at-
tention was called before he discharged Hannah.
Subler also knew that Hannah did file a report on
November 2.i The Trial Examiner therefore does
not credit Subler's testimony that when he decided
to discharge, Hannah he was motivated in part by
this lapse of,Hannah's.
The Summary of Hours: The summary of hours
form referred to in Hannah's discharge letter
required,as of each day the total number of hours
worked that day, the total accumulated during the
past 8 days and the past 7 days , and the number of
hours the driver was eligible to work the next day
and remain - within Interstate Commerce Commis-
sion regulations requiring that he work no more
than certain numbers of hours in any 7-day or 8-
day period . Harris testified that he kept up the 7-
and 8-day cumulative totals in his log summary only
when he was running close to the maximum, but
that when he knew he was eligible for 25 or 30
hours, he did not bother. The maximum a man
could drive in a 24-hour period was 15 or 16 hours.
Harris stated that he always did post his daily hours
ion- the summary sheet . Townsend , who checked
logbooks at the Auburndale terminal and instructed
the drivers there how to keep their logs , testified
that most of the southern drivers kept the summa-
ries but that many northern drivers did not. Hannah
testified that since he was not an over-the-road
driver and usually drove only 3 or 4 hours a day, he
did not ordinarily keep his summary sheet up and
that he did so only when he was going far enough to
run out of eligible time. He testified that an em-
ployee at the Versailles terminal named Garry,
'Hannah made no claim that during his interview with Subler on
November 2 he said that his vehicle condition report had been filed
817
whose duty it was to review employees' logbooks,
had so instructed him. Garry did not testify. Han-
nah's October summary sheet shows the following
with respect to the last 6 days of the month: On Oc-
tober 26 and 27 he worked 0 hours; on October 28
he worked 2-1/2 hours but was eligible to work 15-
3/4 hours; on October 29 he was eligible to work
25-3/4 hours; on October 30, 23-1/4 hours; on Oc-
tober 31, 31-3/4 hours; and on November 1, 31-1/2
hours. The physical appearance of Hannah's sum-
mary sheet was different for the last 7 days from
the earlier part of the month. In view of that fact
and of the indefiniteness of Hannah's and
Townsend's recollections, the Trial Examiner
credits Subler's testimony that the sheet was 7 days
behind. The sheet disclosed, however, that on each
day during that period Hannah worked so few
hours in relation to his eligible hours, or was eligi-
ble to work so many hours, that for practical pur-
poses, as described by him and Harris, he did not
need the summary sheet. It is found that Hannah
complied with the practice general among Respon-
dent's northern drivers and with the specific in-
structions of -Respondent's agent with respect to
summary sheets and did not violate any regulation
or policy of Respondent in failing to keep his sum-
mary sheet up to date during the period immediate-
ly prior to his arrival at the terminal. As Hannah
had never been warned that his failure to keep his
summary sheet up to date regardless of circum-
stances was in violation of regulations, the Trial Ex-
aminer does not credit Subler's testimony that in
discharging Hannah he was motivated by such
failure.
"Mail from other women": This item in the
discharge letter refers to several personal letters ad-
dressed to Hannah in care of Respondent which ar-
rived at the Versailles terminal over a period of
time prior to the October 26 incidents. Subler did
not discuss this matter with Hannah on November
2, and neither he nor any other representative of
Respondent ever admonished Hannah against
receiving such mail at the terminal. Whatever issues
were raised 'about the letters were raised by Han-
nah, who objected to their being opened and read
by employees in the office. Subler testified that he
considered this a minor matter. In view of the
foregoing Subler's testimony that, when discharging
Hannah, he was motivated to any degree by Han-
nah's receipt of the mail is not credited.
The Daily Logs: In the discharge letter Subler
wrote, "Furthermore as I pointed out to you some-
times ago, and my records will indicate that you
failed to mail in promptly, your daily logs more
than any other driver in our organization." Since
March 1966, when Respondent started a practice
of sending monthly letters to its drivers informing
them how many times they had been late during the
month in sending in their daily logs, Respondent's
350-999 0 - 71 - 53
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
records showed the following with respect to Han-
nah:
Number of other drivers delinquent:
1966
No. of times
Hannah was
delinquent
As much as
or more than
Hannah
Less than
Hannah W
March 11 0 25
April 8 1 25
May 4 8 21
June 6 2 35
July 4 17 18
August 1 37 0
September 2 18 11
October 4 17 26
Hannah's best recollection as to the time when Su-
bier spoke to him about his delinquency in sub-
mitting his daily log was that it was in June or July
1966.
The statement in the discharge letter that Han-
nah was delinquent in this respect "more than any
other driver in our organization" is only a slight ex-
aggeration so far as March, April, and June, 1966
are concerned. As to the period of his employment
after June it is false. While the record does not
show how many drivers were not delinquent at all,
it does establish that- in each of the last 4 months
prior to his discharge there were between 17 and
37 drivers who were delinquent as much as or more
than Hannah. Moreover, Subler spoke to Hannah in
June or July and from that time on there was a
marked improvement in this aspect of Hannah's
performance. While Hannah stood second from the
top of the frequency-of-lateness list on a cumulative
basis for March to September, no employer
motivated only by business considerations would
discharge an employee for that reason where there
had been so marked an improvement and so many
other employees were worse. The Trial Examiner
does not credit Subler's testimony that Hannah was
discharged because he was late in submitting logs.
The Threat to Whip Bohman: Subler's discharge
letter refers to "the day in our lot ... that you
threatened to whip Mr. W.J. Bohman. . . ." Boh-
man's testimony, which is credited, establishes that
this incident occurred in the spring or early summer
of 1966, which would be 4 to 6 months before Han-
nah's discharge. Subler. however, testified that it
"could have been" during Hannah's employment in
1964. It is thus apparent that Subler was ready to
go back to something that happened before Hannah
was rehired in order to justify his discharge. It is
found that Hannah's conduct towards Bohman was
not a reason motivating Subler in discharging Han-
nah, and his testimony to that effect is not credited.
SCHEDULE B
ADDITIONAL REASONS FOR HANNAH'S DISCHARGE
The Threat to Whip Tom Subler: This threat,
which was allegedly made during the October 26
incident but was denied by Hannah, has already
been referred to. Carl Subler testified that when his
son, Tom, reported the matter to him, the following
exchange occurred:
I said, did he worry you? He said, well, I just
don't like to be bothered with that type of a
fellow....
Subler testified that the reason this incident was
omitted from the discharge letter was that he had
not yet had an opportunity to discuss it with Han-
nah to find out "both sides of the story, which I did
in the Bohman case." However, he explained, when
he found out about the numerous other violations,
he decided- that he had had enough and made up
his mind to discharge Hannah without going into
the threat to his son. Carl Subler's explanation that
he wanted to hear,both sides is contradicted by the
inclusion in the letter of the tandem and "mail from
other women" items, neither of which was
discussed by Subler with Hannah prior to his
discharge. Moreover, if his eye had been so intently
focused on fairness, he would not have cited so
stale a record about Hannah's daily logs. Subler's
explanation is not credited. A more plausible ex-
planation is that the threat to Tom Subler had not
been made or reported to Subler. Hannah's denial
is therefore credited.
The Dumped Orange Juice: Sometime in 1965
Hannah was sent to a railroad ramp in Detroit to
pick up two trailers loaded with orange juice in
glass bottles. Berger testified that the incident oc-
curred in the spring of 1966. Hannah, testifying on
May 17, 1967, stated that the incident occurred
"about 2 years ago." As Respondent failed to ex-
plain why the date of this incident, which had al-
ready been brought up at an earlier hearing on
unemployment compensation, could not be
established by the shipping and railroad documents,
the Trial Examiner infers that Hannah's recollec-
tion as to the time is more accurate than Berger's.
Upon arrival at the ramp Hannah found that
streams of orange juice were coming out the doors.
Railroad employees had noted the humping and
bulging on the shipping documents. Hannah
dumped the damaged merchandise, some 43 car-
tons. He testified that Berger so instructed him;
Berger, corroborated by Carl Subler, testified to the
contrary and said that he reprimanded Hannah. As
this incident occurred a year or more before
Respondent decided to discharge Hannah and was
not mentioned on November 2 or in the letter, it is
" The records in evidence cover only those drivers whose reports were
late at least once during the month There is no evidence as to how many
drivers were not delinquent
CARL SUBLER TRUCKING, INC. 819
unnecessary to resolve the question of whether
Hannah's disposal of that merchandise was
authorized by Berger. The Trial Examiner does not
credit Subler's testimony that it played a part in his
decision to discharge Hannah.
Loud Swearing: Carl Subler testified that another
thing he had in mind in discharging Hannah was the
following: At some unspecified time "last year,"
speaking by telephone from Auburndale to Berger
in Versailles, he heard Hannah swearing loudly and
instructed Berger to reprimand him; he was in-
formed the next day that Berger had said to Han-
nah, "Lonnie, we got two ladies in this office now,
and we want respect." He also mentioned an occa-
sion when Hannah had allegedly "spent quite a
length of time at one of these truck stops," where
he had heard "he was mixed up with another
woman." Subler testified that he did not discuss any
of these matters with Hannah at the time of his
discharge, and considered them "rather minor."
Subler's testimony that these matters motivated him
when discharging Hannah was unconvincing and is
not credited.
The Settlements: Subler testified:
Hannah was always arguing with my people
that makes the settlements, trying to turn in
bills that we wouldn't honor, that we had to
constantly be on the alert, or he would turn
this type of bill in.
Fuel bills that was doubtful, motel bills that
was doubtful, and ... truck mileage that he
claims he drove when he didn't, and that sort
.of thing.
basis of a charge of $7 per night, when the actual
charge was $3 per night,' collapsed when it was
established by uncontradicted evidence that the
larger payment represented a charge for two of
Respondent's employees in two rooms, one of the
employees the victim of an accident. As he was
paid more than the $3 maximum , it is highly unlike-
ly that the matter was not explained. The motel bill
dated August 11, 1966, on which date Hannah was
not entitled to lodging expense, was part of settle-
ment No. 48,2 which covered the period starting
August 27. As the bill bore no notation explaining
why it had not been presented at an earlier settle-
ment, as Bohman testified was the practice when
bills were presented for, dates not covered by the
settlement, it is found that the, bill did not represent
an expense claimed by Hannah to have been in-
curred on August 11. Hannah's presentation of
several bills for lodging in Toledo3 on days when his
logs "showed him" in Detroit did not prove
anything improper since he went to Toledo on his
own time and by noncompany transportation. So
far as the falsification of logs is concerned, Han-
nah's testimony, that it was accepted practice for
drivers to falsify their logs was corroborated by
Harris' uncontradicted testimony that he received
reimbursement for toll receipts which the settle-
ment personnel knew disclosed times not cor-
responding with his logs. As the drivers were paid
principally on the basis of mileage, it is inferred
that logs were checked with care. Significantly,
Respondent presented no evidence that any log fal-
sifications by Hannah were for the purpose of ex-
tracting mileage compensation to which he was not
entitled. Indeed, in the case of the extra mileage
claimed by Hannah discussed below it was his log
that disclosed the discrepancy.
* * * *
Well, it was just a general doubt that-on my
mind-that he wasn't being honest with my
company.
He stated that this had been going on ever since
Hannah 's last employment and he testified that his
settlement personnel had called it to Hannah's at-
tention numerous times. He further testified that
after Hannah was discharged, he had the files
searched for irregularities and that the various
lodging vouchers in evidence, which are referred to
below, were found in that manner,
The Trial Examiner is satisfied, and finds, that a
number of instances of alleged cheating by Hannah
which Respondent tried to prove were refuted by
his testimony or by circumstances. Thus Respon-
dent 's claim that he collected reimbursement for
room 17 at West Springfield on August 7 on the
' Resp Exh. 2.
2 See Resp . Exhs . 3, 19A, and 19E
Respondent did prove that Hannah presented in-
valid claims for at least $3.83; namely, $2.33 for
mileage claimed on the basis of a trip to Greenville
which had been eliminated from his route after he
had started out, and $1.50 for the second of two
claims in that amount covering a single $3 bill for
lodging on September 21, 1966.' Hannah 's explana-
tion of these errors is by no means implausible. He
testified that he recorded his mileage in a notebook
before starting out. The Greenville trip was one leg
of a trip to some half-dozen places , and he testified
that when he was instructed to eliminate it, he for-
got to strike it from his notebook. As to the lodging
bill, he testified that he always obtained an extra
receipt for purposes of his income tax and that he
submitted the September 21 duplicate voucher by
mistake . In view of the small amounts involved, and
as Hannah could anticipate that the mileage error
would be caught and rectified , as, indeed, hap-
pened , the Trial Examiner credits his explanations.
' Resp . Exhs. 4 and 5.
4 Resp. Exh. I
820` DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Some of Hannah's hotel claims cannot on their
face be reconciled with his logs. Thus, to explain
the two hotel claims dated August 7, 1966, for
about' $1.35 and $1.80,5 respectively, 'Hannah
testified that he stayed at West Springfield part of
the night and then went on to Bellevue the same
night, whereas his log for August 7 shows him "off
duty'"' from midnight to 10 a.m., and driving from
West Springfield to Toledo between lG a.m. and 4
p.m. On the other hand there are numerous possi-
bilities of inaccuracy or error in these records: inac-
curate logs, which Hannah testified was actually the
case with respect to his arrival- at Toledo; the
absence -of evidence of any uniform practice by
lodging places with respect to whether receipts
were dated as of time of payment, beginning of a-
stay, or end of a-stay, particularly- where a stay was
for only part of a night; and the frequent incidence
in any event of human error in dating documents.
These factors, together with the absence of
evidence that neither of the August 7 receipts was
not issued to Hannah by the hotel named, all com -
bine to leave unproved and doubtful Respondent's
contention that Hannah cheated by getting either
$1.35 or $1.80 for lodging on August 7 to which he
was not entitled. The same considerations apply to
the two hotel receipts signed "Vance Harrelson,"6
and the logs for the various dates on the two
receipts. In the absence of explanatory testimony it
is not possible to reach any conclusion that either
of the `$2 payments made on the basis of those
receipts was improper. Indeed, as one of the
receipts appears on its face to be for lodging
between September 28 and 30 but was presented
for payment with the settlement covering the
period starting October 4; it is reasonable to as-
sume, in accordance with the testimony of Bohman
and Harris, that a satisfactory explanation was
given at the time the voucher was paid. There is no
competent evidence that Hannah cheated with
respect to the fuel discounts; and Tom Subler
specifically said that he was not accusing Hannah of
stealing and rejected his offer of reimbursement. In-
deed the discussion ended with Tom Subler adjust-
ing Hannah's complaints against the Company by
paying Hannah $17, part for an additional item due
him on the October 26 settlement and part on -a
voucher submitted on a prior settlement but - not
paid. -
Except for the fuel bills, the settlement irregulari-
ties which Respondent attempted to prove,were ad-
mittedly searched out after Hannah's discharge,
and Subler did not include them in the discharge
letter. Respondent adduced no evidence to
establish, as claimed by Subler, that Respondent's
settlement personnel- were troubled by frequent
presentation of invalid claims by Hannah. None of
them so testified, and Subler's testimony to that ef-
fect was unconvincing. In addition, Respondent
presented as evidence justifying the discharge some
vouchers as to which the evidence affirmatively dis-
closed that no improper payment had been made to
him, and some which, although not explained, still
did not- indicate improper payment. Subler's
testimony that his decision to discharge Hannah
was motivated in part by complaints he, had
received from settlement personnel or" by any infor-
mation he had from any other source as to Han-
nah's honesty is not credited.
It is found that all the alleged violations stated in
the discharge letter and all the additional reasons
advanced by Respondent at the hearing were pre-
texts seized upon or invented by,Respondent to jus-
tify a discharge which was in fact, as found in this
Decision, discriminatory.
Resp Exh 2 - - 6 Resp Exh 16