Chicago Tri-Cities Motor Freight, Inc.

National Labor Relations Board - Board Decisions

Dec 1, 1967

168 N.L.R.B. 668 (N.L.R.B. 1967)

668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chicago Tri-Cities Motor Freight, Inc. and Alvin A.
Seifert and George Jacobs and Windle Tetrick.
Cases 38-CA-234 and 38-CA-263 (formerly
13-CA-7608)
December 1, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On June 22, 1967, Trial Examiner George L.
Powell issued his Decision in the above-entitled
proceedings, finding that Respondent had not en-
gaged in the unfair labor practices alleged in the
complaint, and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief, and the Respond-
ent filed a reply brief to the General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner. I
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 or-
ders that the complaint be, and it hereby is,
dismissed.
I Unlike the Trial Examiner, we find that the General Counsel's allega-
tion that Respondent violated Section 8(a)(1) and (3) by its discriminatory
cancellation of the leases of five of its tractor owner over-the-road drivers
in October 1966, was adequately litigated at the hearing. However, we
sustain the Trial Examiner's finding that the record does not support this
allegation.
The complaint consolidated two cases and alleged that
Respondent violated Section 8(a)(1), (3), and (4) of the
National Labor Relations Act, as amended, herein called
the Act, by: (a) reducing the rate of pay of employee
Alvin A. Seifert on April 21, 1966, because he had filed
grievances or attempted to implement his rights under the
collective-bargaining agreement between Respondent
and Local No. 371 of Chauffeurs, Teamsters and Helpers
Union, herein called Local 371; (b) terminating the em-
ployment of Seifert as an over-the-road driver on
December 2, 1966; and (c) terminating the employment
of George Jacobs and Windle Tetrick as over-the-road
drivers on November 28, 1966, because, in the cases of
(b) and (c), said employees had filed grievances or were
attempting to implement their rights under a collective-
bargaining agreement between Respondent and Local
No. 710 of the Teamsters, herein referred to as Local
710.
Seifert's pay was reduced on April 21, 1966. He filed
his charge in Case 38-CA-234 on September 6, 1966,
which he amended on December 19, 1966. The charge in
Case 38-CA-263 was filed on October 3, 1966.
The parties were capably represented throughout the
trial of the case. Comprehensive and thoughtful briefs
were received from Respondent and from the General
Counsel on April 17, 1967.
Upon the entire record of the case, the briefs filed, and
from my observation of the witnesses, including their
demeanor while on the witness stand, I make the findings
of fact and conclusions of law hereinafter set forth and
recommend that the complaint be dismissed in its
entirety.
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS OPERATIONS
Respondent is an Illinois corporation engaging in busi-
ness as a motor freight carrier with terminals in Chicago
and Rock Island, Illinois. During the past calendar or
fiscal year, Respondent purchased and caused to be
transported and delivered to its places of business trucks,
truck parts, oil and other goods and materials valued in
excess of $50,000, which goods and materials were trans-
ported and delivered to its terminals and places of busi-
ness in interstate commerce directly from States of the
United States other than the State of Illinois. During the
same period of time Respondent performed services
valued in excess of $50,000 for various enterprises
located in States other than the State of Illinois.
Upon the basis of the foregoing facts, I find that
Respondent is engaged in, and during all times material
was engaged in, a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act and that its
business operations meet the standards fixed by the
Board for assertion of jurisdiction.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE L. POWELL, Trial Examiner: With Respond-
ent represented, this unfair labor practice case was tried
before me in Rock Island, Illinois, on March 16, and 17,
1967, on the complaint of the General Counsel of the Na-
tional Labor Relations Board, herein called the Board,
and the answer of Chicago Tri-Cities Motor Freight, Inc.,
of Rock Island, Illinois, herein called the Respondent.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I find that the Chauffeurs, Teamsters
and Helpers Union, Local No. 371 and Local Union No.
710 are labor organizations as defined in Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
Respondent, maintaining terminals in both Rock Island
and Chicago, Illinois, is engaged in the trucking industry
168 NLRB No. 86
CHICAGO TRI -CITIES MOTOR FREIGHT
with a franchise to transport freight between those two
cities. Its principal offices are located at Rock Island,
Illinois.
Dr. Millo Brady is president of Respondent Company,
and is responsible for establishing corporate policy. He
became. associated with it 12 years ago and became the
sole owner in April 1965 . Donald Lees is terminal
manager of the Chicago operation , and George Totto is
in charge of the terminal at Rock Island , Illinois. Lees
and Totto are responsible for the day-to -day operations
of the Company.
Respondent ' s operation is not small. Brady testified
that Respondent had approximately 33 city drivers in
Rock Island and 21 city drivers in Chicago . At the time
of the hearing there were 2 over-the-road drivers based in
Chicago and 13 over-the-road drivers based in Rock
Island . The two over-the-road drivers in Chicago drove
their own tractors which are leased to Respondent. Also
2 of the 13 over-the-road drivers in Rock Island drove
their own tractors which were leased to Respondent. All
others drove company-owned or leased equipment.
These tractors , depending upon the precise equipment,
would cost between $ 15,000 and $23,000 each.
In October 1966, Respondent had four owner-operated
tractors in Chicago and four owner-operated tractors in
Rock Island. Under the terms of an owner-operator lease
the tractor owner either drove or provided the driver and
was paid approximately $ .16 per mile for its use plus an
additional $ . 11 per mile for the driver (whose pay was
covered by the union contract).' The owners drove their
tractors in the instant case. The four owner operators
based in Chicago would haul a trailer with their tractor
from Chicago to Rock Island , drop that trailer and pick
up another for the return trip back. One round trip (run)
per day is all that was made under these owner-operator
leases. The four owner operators in Rock Island also
made one run per day to Chicago and back exchanging
trailers at the terminal in Chicago.
Respondent 's employees are represented by two dif-
ferent locals of the Teamsters . Local 710 represents em-
ployees dispatched out of Chicago , whereas Local 371
represents those dispatched from Rock Island.
In Chicago , Local 710 had two separate seniority lists;
one for over-the-road drivers and one for city drivers.
And seniority could not be transferred from one list to the
other . It was different in Rock Island . Only one seniority
list existed there and city drivers and over-the-road
drivers were lumped together and would bid once a year
for over-the-road or city driving jobs on equipment
owned or leased by Respondent . Employees could
transfer from one terminal to the other but could not
transfer their seniority with them.
In October 1966, the eight over-the -road owner-
operated tractor drivers of Respondent ranked in order of
their seniority as follows:
Rank Chicago Rock Island
1 Arlon Mum Alfred Cooper
2 Tetrick Lyman Withrow
3 Jacobs Seifert
4 Hans Gudd Warren F . Herzberg, Sr.
' The lease payments varied slightly Seifert 's and Jacobs ' called for
$ 2675 per mile for tractor plus driver , whereas Gudd 's was $.27. Tet-
ricks ' was stipulated to be same as Seifert 's. Steifert testified the $.2675
was arrived at by adding $ 15625 for the tractor to $. 1 1 125 for the driver.
669
Cancellation of Owner -Operator Leases
In October 1966, and pursuant to the terms of the
owner-operator leases under which either party could
cancel on 30 days' written notice , Respondent canceled
five of the eight owner-operator leases. The letter of can-
cellation to Jacobs, dated October 14, 1966 (which is
substantially similar to the other letters), stated:
This is to inform you that thirty days from receipt of
this letter, as per your signed lease -contract with
Chicago Tri Cities Motor Freight Inc., the service of
your tractor will no longer be needed and your lease-
contract will be terminated.
Chicago Tri Cities Motor Freight Inc. is starting a
program of replacing owner-operated equipment
with company equipment.
Respondent replaced the equipment covered by the can-
celed leases with three company-owned tractors plus
three tractors obtained under a new lease arrangement
with Gudd and Herzberg whereby Respondent could use
the tractors in either over-the-road work or city work and
also could use the tractor with different drivers thereby
making it possible that the tractor could work 24 hours
per day. As noted earlier, only the owner drove his trac-
tor under the owner-operator type lease and but one
round trip (344 miles) per day was driven.
The five canceled owner-operator leases involved the
three owners having the least seniority in Chicago, i.e.,
Gudd , Jacobs, and Tetrick, and the two having the least
seniority in Rock Island, i.e., Herzberg and Seifert.
After the 30-day notices of cancellation were given, the
leases were due to expire on November 14, 1966, for
Jacobs, Tetrick , Gudd, and Herzberg and on November
18, 1966 , for Seifert.
It should be noted that although the owner-operator
leases were canceled the owners continued in employ-
ment as drivers under the contract between the Team-
sters and Respondent.
Gudd and Herzberg
Respondent 's first lease with Gudd was dated June 17,
1966, for a term of 1 year beginning June 20 , 1966. As
noted above, this lease was due to expire on November
14, 1966 , having been canceled on October 14. On
November 28, 1966 , Gudd leased his tractor for 1 year
to Respondent for 16-1/2 cents per mile for freight han-
dling by Respondent. This new lease pays one-half
cent per mile more for the tractor than the old lease but
gives Respondent the exclusive control over the tractor
with authority to assign other drivers to operate it. (Sec-
tion 7 of the new lease together with the money con-
sideration distinguish it from the former owner -operator
type lease.)
After Herzberg's owner-operator lease was canceled
he entered into a 1-year lease with Respondent for two of
his tractors with an option by Respondent for another
under terms similar to those offered Gudd ; that is, at
$.165 per mile with the tractors being under the sole con-
trol of Respondent thereby allowing Respondent to as-
sign the tractors to either over-the-road or city work, or
As there is no controversy over the amount of the lease , I will use the sum
$.27 divided into $.16 for the tractor and $A t for the driver for ease in
writing the Decision
670 DECISIONS OF NATIONAL
a combination of both and with sole authority in Re-
spondent to assign drivers to the leased tractors.
Jacobs
Jacobs, an experienced driver of some 25 years, began
driving for Respondent in September 1965 as an over-
the-road owner-operator . His last lease from December
15, 1965, to December 15, 1966 , was canceled effective
November 14, 1966, but he continued driving thereunder
until November 28, 1966, when he was offered a new
lease for his tractor on same terms as the Gudd and Herz-
berg leases. But Jacobs refused to accept the new lease
because, as he admitted, he did not want another driver
on his tractor . Also he refused on November 28, 1966, to
drive company equipment . He was discharged by letter
dated November 29, 1966 , for refusing the assignment to
drive made on November 28, 1966.
Tetrick
Tetrick had been employed as an owner -operator from
August 1962 . Tetrick was not offered a new lease after
his 1965-66 owner-operator lease was canceled by 30
days' notice given on October 14, 1966 . His employment
had been previously terminated by Respondent by letter
dated November 9, 1966 , effective November 14, 1966.
He had been involved in an accident on November 2
while driving his tractor , leased to Respondent, for
another trucking firm . This was in violation not only of
his lease with Respondent ,2 but in violation of the Local
Union 's contract and in violation of Interstate Commerce
Commission regulations.
Seifert
Seifert was first employed by Respondent in 1961. He
had always been an owner-operator . He continued as an
over-the-road driver on his own equipment after cancella-
tion of his lease until November 21, 1966, when he was
assigned to Respondent 's equipment as a city driver on
the basis of his union seniority . His seniority was not
enough to permit him to drive company-owned equip-
ment over the road. He was not offered a new lease such
as was offered Jacobs, Gudd , and Herzberg because of
his well-known strong opinion of not letting anyone else
drive his tractor.
Seifert refused the assignment to city work on Re-
spondent 's equipment and after two warning letters dated
November 28 and November 30 he was terminated on
December 2, 1966, for failure to work as a city driver.
Arbitration Award for Jacobs and Tetrick
Jacobs and Tetrick grieved their discharges, above,
with their Union. The Joint Board of Arbitration heard
the grievances on December 21, 1966, in accordance
2 By its terms , the contract terminated automatically when Tetrick
leased his tractor to the other firm The General Counsel attempted to
discount the gravity of this action with testimony that Tetrick was only
doing a favor for a friend and neighbor . The General Counsel further
LABOR RELATIONS BOARD
with the contract between the Teamsters and Respond-
ent. The Joint Board ruled in favor of Jacobs and Tetrick
because their discharges had not been preceded by at
least one warning notice. Accordingly , Respondent was
directed to employ them as over-the -road drivers on
Respondent's equipment . Both Jacobs and Tetrick ad-
mitted they agreed to return to work on December 21.
However , when telephoned by Respondent to report for
work December 21, Jacobs reported that he had changed
his mind and decided against driving Respondent's
"junky equipment." The only way he would return to
work was as an owner-operator. Likewise , Tetrick ad-
mitted he refused to report when called on December 21
saying, "I don't want the job, driving company equip-
ment, and you can stick it up your ...." Finally, after let-
ters of warnings were sent Jacobs and Tetrick by
Respondent for their refusal to accept assignment as
over-the-road drivers on company equipment, their
employment was terminated by letters dated December
27 and December 30, 1966, respectively.
Reduction of Pay of Seifert
The term of Seifert 's last 1 -year lease was from
December 15, 1965, to December 15, 1966 . As noted
earlier, it provided for a flat cents -per-mile rate for the
lease of his tractor plus his driver's wages.
However, by letter from Respondent dated April 21,
1966 , his pay was changed to ton-mile rather than flat
rate. The letter is as follows:
Mr. Hughes of the Teamsters & Chauffeurs Union
was here this morning and informed me that the
$180.00 must be paid to you and I shall see that it is
with your next week check . I was also informed that
your pay beginning Monday will be 12 cents per mile
for your tractor and a minimum of 11 cents a mile for
drivers pay. This 23 cents per mile will cover all
loads up to 27,000 pounds, each additional 1000
pounds will be paid 1 /2 cents a mile. Starting Mon-
day, your pay will be figured on this basis. [These
rates are the union contract rates.]
I am attaching copy of this to your lease contract so
it will become a part of your contract and would ap-
preciate your signing the same.
The $180 referred to in the letter was the payment to
Seifert of the Federal Highway Use Tax which he had
first paid , had grieved for reimbursement, and for which
his Union insisted he be reimbursed . All other owner-
operators paid this tax out of their own pockets and had
not asked for reimbursement. There was some question
of whether Seifert had asked to be put on ton-mile rather
than flat rate or whether Respondent had done it uni-
laterally. On this point, Seifert testified that he filed a
grievance in May 1966 (G.C. Exh . 10-A) in which he
asked for ton-mile pay from April 25, 1966 , back to June
1, 1965, but did not contest being on ton -mile. I find from
all the evidence that Seifert was put on ton-mile at his and
equates an ICC violation of running without a speedometer or odometer
with Tetricks ' action of unauthorized use of the tractor I am unable to
agree with the General Counsel on either point and find his position
lacking in ment.
CHICAGO TRI-CITIES MOTOR FREIGHT 671
Hughes', his union business agent, request and agreement
and that Respondent did not act unilaterally.3
Seifert, in the same grievance, claimed he was being
discriminated against because the heavy gross loads were
being pulled by drivers having less seniority. In this
manner his take home pay per week under ton-mile was
less than it was under flat rate. However, before April 21,
1966, Seifert had stated to fellow employee Withrow that
he could make more money on the ton-mileage basis than
on the flat cents-per-mile basis.
Loads are assigned in Rock Island on the basis of
seniority - the first available load being assigned to the
most senior driver. This procedure is followed until all the
loads are assigned or until all the drivers are assigned.
Seifert has more seniority then Herzberg, yet Herzberg,
says Seifert, was getting heavier loads and hence more
pay because of payment on ton-mileage basis. The facts
are that about 50 percent of the weight hauled by Re-
spondent comes from a firm in Davenport, Iowa, named
Alcoa. And normally the last loads each night are
deliveries from Alcoa. Herzberg being less senior was
normally assigned these last loads.
Respondent was just getting into an air-truck lift opera-
tion with American Airlines on a 24-hour basis.
Company-owned equipment could be used in either city
or over-the-road use whereas owner-operated tractors
were only used over-the-road. The company-owned
equipment acquired after October 1966 has been
operated on two runs per day between Chicago and Rock
Island as against one run per day under the old owner-
operated equipment.
The General Counsel failed to controvert the above
testimony . With respect to the theory that Respondent
was retaliating against Jacobs for filing grievances, the
Respondent did not receive the letter from the Teamsters
notifying it of Jacobs' October 10, 1966 , three grievances
until 5 days after Jacobs' lease was canceled and there
was no evidence that it had acquired knowledge of the
grievances in any other manner.
With respect to the theory that Respondent was
retaliating because Jacobs notified the ICC of Respond-
ent's violations of ICC regulations, there is no evidence
that Respondent ever knew any one was informing
against it much less that the informer was Jacobs.
Respondent's Reasons for Cancellations of Leases
Although not alleged in the complaint as a violation of
the Act, the General Counsel seemed to be interested in
attempting to prove that the termination of three of the
five leases in October 1966 was a violation of the Act on
the theory that Respondent was retaliating because these
three employees had filed grievances with their Union or
charges with the Board or had instigated investigations of
Respondent by the ICC.
Notwithstanding the fact that Respondent was not
called upon by the formal pleadings to adduce evidence
justifying its position on this point, or alerted to the fact
that it might have to adduce evidence on the point, Doc-
tor Brady credibly testified that the following were the
reasons why Respondent terminated the leases:
1. It finally had the capital necessary to purchase addi-
tional equipment;
2. Delivery was promised for November 1966 on
some new tractor orders and after November 15 in each
year a tractor in Illinois can operate on the following
year's license thereby buying 13-1/2 months' use for the
price of 12 months' use; and there was
3. Greater flexibility in operation in company-owned
rather than owner-operator leased tractors.
As to (1), above, Brady was convinced, whether cor-
rectly so or not, that company-owned equipment would
cost Respondent but $ .11 per mile as against the cost of
owner-operated equipment of $ .16 per mile, and his
study of other freight lines showed they graduated to
company-owned equipment as they grew larger and ob-
tained the necessary capital. He gave specific examples
such as Carstensen Freight Lines and Roadway Express.
As to (3), above, company-owned equipment was more
flexible than owner-operated equipment. It could be
driven 24 hours per day using different drivers. Further,
3 Hughes' testimony, which I credit, is as follows-
Q. Now, was it Dr. Brady who suggested that Seifert be paid ton-
mile or was it you?
A. It was me and Seifert, that he be put under the ton-mile.
(Hughes) He [Seifert] asked to go on ton-mule .... Brady's
The General Counsel's Complaint, Theory, Discussion,
and Conclusions
The three alleged discriminatees had been owner-
operators with Respondent since 1962 for Tetrick, 1963
for Seifert, and 1964 for Jacobs.
As for Seifert the complaint in pertinent part alleged (a)
that on or about April 21, 1966, and continuing Respond-
ent reduced the rate of pay of Seifert; and (b) that on or
about December 2, 1966, Respondent terminated Seifert
as an over-the-road driver because of certain activities
protected under the Act.
The facts establish that on April 21, 1966, Seifert's rate
of pay was changed from a cents-per-mile rate under a
contract with Respondent to a ton-mileage basis provided
under the union contract. But as the facts also show that
this was done at Seifert's request and agreement between
Seifert, the Union, and Respondent, I find no violation of
the Act in this regard. The fact that Seifert was receiving
less pay under the new rate because of the way the
payloads were assigned was not pleaded in the complaint
and was not completely litigated. Furthermore, the simple
explanation given by Respondent was not refuted by the
General Counsel. The heavier loads come later in the day
after the more senior men had picked up their loads.
Finally Seifert was terminated not as an over-the-road
driver on December 2, but as an employee who refused
assignment as a city driver on company equipment and
after two warning letters had been sent him. His termina-
tion as an over-the-road driver took place when his lease
expired on November 18, 1966, yet even then he con-
tinued to drive over-the-road until November 21, 1966.
There is no allegation that the cancellation of the owner-
operator lease was a violation of the Act. This aspect was
not completely litigated. Finally, Respondent's reasons
for cancellation were not refuted by the General Counsel.
testimony, also credited, was that at a meeting of Hughes, Seifert, and
Brady.
It was decided that I should notify Mr. Seifert by letter that he
would be placed on ton-mileage as the union - according to the
terms of the contract.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, I find no substantial evidence in the case of
Seifert and find that the General Counsel has not
sustained the burden of proof he is required to carry to
prove a violation of the Act. Accordingly, I will recom-
mend dismissal of this complaint.
As to the cases of Jacobs and Tetrick, the complaint al-
leged that on or after November 28, 1966, they were ter-
minated as over-the-road drivers for Respondent because
of certain protected activities. Again no mention was
made in the complaint that Respondent would have to
answer to its cancellation of the owner-operator leases
yet the reasons for this cancellation of five out of eight
outstanding leases were given by Respondent. Cross-ex-
amination of testimony given not in preparation of a
defense to an allegation can not be considered raised to
the dignity of "litigation." The termination of Jacobs'
lease took place on November 14, 1966, following the 30
days' notice of cancellation. His discharge took place by
letter on November 29, 1966, for his failure to accept as-
signment to drive company equipment on November 28,
1966.
The General Counsel is concerned in his brief that
Jacobs had just purchased an expensive new tractor pur-
suant to a rule established in September 1965, under
which Respondent required leased tractors to be less than
5 years old and that somehow this helps to show that his
discharge on November 29, 1966, violated the Act. The
General Counsel fails to acknowledge that Respondent
offered to lease Jacobs' new tractor at $ .165 per mile
which was one-half cent more than the old lease yet
somehow tries to cast doubt on Respondent's good faith
in leasing tractors from Gudd and Herzberg at these new
rates. Finally, the General Counsel fails to acknowledge
that Jacobs also was offered driver employment but
refused to drive Respondent's equipment. Jacobs only
wanted to drive his own equipment. Under the circum-
stances of this case this desire is not frustrated by a viola-
tion of the Act. I find the General Counsel has failed to
sustain his burden of proof in the case involving Jacobs
and will recommend dismissal.
As to Tetrick, his lease automatically terminated by its
terms when he leased his tractor to another while it was
' The General Counsel had sought to cast suspicion on the motives of
Respondent in cancelling the leases (again, this is not involved in the com-
plaint) with testimony from Jacobs that back in May 1965 he was laid off
because he had filed a grievance concerning his pay and that Brady so told
him Brady denied this Based upon the demeanor of the witnesses, I
credit Brady over Jacobs.
General Counsel, through his own witness Withrow, attempted to show
that Brady was fed up with Jacobs, Tetrick, and Seifert but this evidence
under lease to Respondent . At that time of course it was
in the 30 days ' notice of cancellation period. Respond-
ent's subsequent notice on November 9, 1966, to
Tetrick called attention to the lease violation as well as
the other violations . This is the reason , which I find to be
used in good faith, Tetrick was not offered a new lease on
November 28, 1966, if that is what the General Counsel
was referring to in his complaint . The Respondent had
subsequently offered Tetrick employment on its equip-
ment which was refused with the comment by Tetrick
that Respondent could stick its equipment "up your ......
Again, I find the General Counsel has failed to sustain
his burden of proof and will recommend the complaint as
to Tetrick be dismissed.
The Board has stated the proposition many times that
the burden is on the General Counsel to affirmatively
establish discriminatory motivation in discharges and not
on Respondent to disprove it. The most recent statement
appears in Culinary Workers, Bartenders and Hotel Ser-
vice Employees , Local 535, AFL-CIO, Case
21-CA-6776, 164 NLRB 555.
CONCLUSIONS OF LAW
1. The Respondent is, and during all times material
has been, an employer engaged in commerce and in a
business affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Chauffeurs, Teamsters and Helpers Union,
Local No. 371 and Local Union No. 710 are labor or-
ganizations within the meaning of Section 2(5) of the Act.
3. The General Counsel has failed to establish by a
preponderance of the evidence that Respondent is guilty
of the violations of the Act alleged in the complaint.4
RECOMMENDED ORDER
Accordingly, I recommend that the complaint be
dismissed in its entirety.
was not substantial. Withrow testified that on a date he could not re-
member if Brady came out of his office saying "he'd had it with those
guys " Then Withrow added, "Now, what guys he didn't specify " Not-
withstanding this lack of identification, Withrow took it on himself to tell
Jacobs, Tetnck, and Seifert of Brady's remarks, telling them that Brady
was referring to them Withrow's remarks are irresponsible. As there was
evidence of dissension among the drivers, such irresponsible remarks as
made by Withrow would provide fuel for even greater dissension