Clark Bros. Transfer, Inc.

National Labor Relations Board - Board Decisions

Dec 24, 1970

187 N.L.R.B. 460 (N.L.R.B. 1970)

460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clark Bros . Transfer, Inc., and General Drivers and
Helpers Union Local No. 554 , affiliated with the
International Brotherhood of Teamsters , Chauf-
feurs , Warehousemen and Helpers of America.
Case 17-CA-4227
December 24, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On August 13, 1970, Trial Examiner Melvin Pollack
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. He also found
that the Respondent had not engaged in certain other
unfair labor practices alleged in the complaint and
recommended that such allegations be dismissed.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision, and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
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 brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations 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 Recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Clark Bros. Transfer, Inc., Omaha,
Nebraska, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order.2
IT IS FURTHER ORDERED that those portions of the
complaint as to which no violations have been found
are hereby dismissed.
i The Respondent's exceptions, in large part, are directed to the
credibility findings made by the Trial Examiner it is the Board's
established policy not to overrule a Trial Examiner's resolutions as to
credibility unless, as is not the case here, a clear preponderance of all the
relevant evidence convinces us that they are incorrect Standard Dry Wall
Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) Nor do we find
merit in the Respondent's contention that because the Trial Examiner
credited the General Counsel 's witnesses and discredited the Respondent's
witnesses , his credibility resolutions are erroneous or attended by bias or
prejudice N L R B v Pittsburgh Steamship Co, 337 U S 656 Accordingly,
we find no basis for disturbing the Trial Examiner 's credibility findings in
this case
2 In footnote 25 of the Trial Examiner 's Decision substitute °20° for
"10" days
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MELVIN POLLACK, Trial Examiner: This case was heard
on June 9 and 10, 1970, at Omaha, Nebraska, on a charge
filed on March 3, 1970, and a complaint issued on April 29,
1970. The complaint, as amended at the hearing, alleges
that Respondent Clark Bros. Transfer, Inc., violated
Section 8(a)(1), (3), and (4) of the National Labor Relations
Act, as amended, by surveillance or creating the impression
of surveillance of union activities, by threats to close its
Omaha terminal, and by discharging Fred Van Valkenberg
because of his union activity and because he gave testimony
under the Act.
Upon consideration of the entire record in the case,'
briefs filed by the parties, and my observation of the
demeanor of the witnesses as they testified, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent , a Nebraska corporation , is engaged in the
transportation of freight at terminals in Norfolk , Lincoln,
and Omaha , Nebraska , and in Sioux City, Iowa. Respon-
dent annually derives over $50 ,000 in gross revenues from
the interstate aspect of its operations and over $50,000 in
gross revenues for services to enterprises over which the
Board would assert jurisdiction . I find that Respondent is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
General Drivers and Helpers Union Local 554, affiliated
with the 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 ALLEGED UNFAIR LABOR PRACTICES
A. Sequence of Events
David Farris, the manager of Respondent's Omaha
terminal , hired Fred Van Valkenberg as a driver on June
16, 1969. During the summer, Van Valkenberg had an
"argument" with Ray Bargenquast, the dock foreman for
Ideal Truck Lines. Bargenquast told Farris not to send Van
Valkenberg to his dock again. Farris informed Van
Valkenberg that Bargenquast did not want him on his dock
again and assigned him to another route.
The Omaha drivers and dockmen discussed union
i The General Counsel's motion to correct the record is granted
187 NLRB No. 77
CLARK BROS. TRANSFER, INC
representation in November 1969 but decided to wait until
after Christmas before they "started anything." In early
January 1970,2 the employees met with Farris and told him
they wanted "time and a half." Farris said they might have
to give up another benefit to get time and a half. The
employees also expressed their "personal feelings" about
union representation.
About January 6, Van Valkenberg obtained authoriza-
tion cards from a union organizer. Van Valkenberg signed a
card and handed cards out to other employees to sign. Van
Valkenberg turned the signed cards over to the Union,
which filed a petition for a Board election on January 12. A
few days later, Respondent called the employees to a
meeting. Attorney Rasmussen asked why the employees
thought they needed "a third party for a speaker" and said
Respondent might be able to work out something among
the employees without bringing in a third party. He spoke
about Respondent's profit-sharing plan and compared a
"union standard retirement plan" with Respondent's
retirement plan.3
About January 16, Manager Farris remarked to Van
Valkenberg, "Better men have tried to put the union in than
you are." About this time, Farris told driver Clayton
Marshall, that he "didn't know whether [Respondent]
would close the front doors or not "if the Union got m."4
Farris subsequently made a similar statement to several
drivers, including Marshall.
Van Valkenberg made arrangements for two meetings at
the Union's hall during January. The second meeting was
set after work at 7:30 p.m. Van Valkenberg, Clayton
Marshall, Charles McKeag, and Howard Hansford were
working late on the dock the day of the meeting. Manager
Farris came to the dock about 7 p.m. and helped the
employees load trailers. The work was finished about 7.20
p.m. and Farris remarked, looking directly at Van
Valkenberg, "You made it in time for your union meeting
and I hope you have fun." Van Valkenberg said he "hoped,
too." The next morning, Farris asked Van Valkenberg if he
"got anything accomplished" and Van Valkenberg replied,
"I hope so."
On January 28, the Board scheduled a hearing for
February I t on the Union's representation petition.
Pursuant to a subpena issued at the Union's request, Van
Valkenberg testified at the hearing.5 He gave testimony to
the effect that the drivers and dockmen at the Omaha
terminal work substantially in the Omaha area and have
little to do with employees at Respondent's other terminals.
On February 26, Van Valkenberg came to the terminal
2 All dates hereinafter are in 1970 unless otherwise stated
3 Rasmussen did not mention the Union during this meeting
4 Farris had received a form from a "loan company" in connection with
Marshall's contemplated purchase of a house
5 Van Valkenberg had volunteered at a union meeting to testify at the
representation hearing
6 The drivers and dockmen report for work at 8, 9, or 9 30 a in
7 Van Valkenberg testified that the list had six stops, the last one being
Ideal Truck Lines, and that Nielson told him to call her from Sterum
Freight, the next to the last stop on the list Nielson testified that Sterum
Freight was the last stop on Van Valkenberg's list and she told him to call
her from that stop for additional instructions
8 Nielson denied making this remark to Van Valkenberg She testified
that Van Valkenberg voiced no objection about going to Ideal Truck Lines
461
about 9 a.m. and had coffee with Hansford before clocking
in for the 9:30 a.m. shifts Manager Farris told Van
Valkenberg, who regularly drove a pickup truck, that he
had to drive a trailer that day and should get a list of stops
from dispatcher Clara Nielson. Nielson gave Van Valken-
berg a list of stops on the "bottoms run" and told him to
call her when he was finished at Sterum Freight.? As Van
Valkenberg was getting ready to leave, driver Harry Ellis,
who regularly had the "bottoms run," came in from an
early load he had handled that morning. Farris at this time
told Hansford to make a pickup with his trailer.
Van Valkenberg called Nielson from Sterum Freight and,
when Nielson instructed him to go to Ideal Truck Lines for
a pickup, mentioned his argument the previous summer
with Dock Foreman Bargenquast. Nielson said "it should
have blown over by now."8 Van Valkenberg drove to
Ideal's dock. As he walked over to Bargenquast's desk on
the dock to pick up bills of lading, Bargenquast said, "Put
the bills back and get off my dock I told you a long time
ago I didn't want you on this dock and I meant it."
Bargenquast called Farris and said, while Van Valkenberg
listened, if Van Valkenberg "was the only man to send
down there, don't bother to send anybody."9 He told Farris
to come down or get someone else to pick up the freight or
he would give the freight away. Fares said he would be
right down. Bargenquast walked away and Van Valkenberg
called Farris, who told him to wait in the truck until he got
there. Farris came down, got into the truck, and asked Van
Valkenberg what had happened. Van Valkenberg said he
"just walked on the dock and [Bargenquast] told [him] to
get off. I didn't say a word." Farris said he would talk to
Bargenquast and left the truck.
Farris returned in 2 or 3 minutes and, according to Van
Valkenberg, said, "Are you trying to make me fire you?"
Van Valkenberg said, "No," and Farris said, "What are you
trying to do, then?" Van Valkenberg answered "Nothing."
Farris said, "You are leaving no alternative for me" and
suggested that it would be better for Van Valkenberg's
record if he quit. Van Valkenberg said he would not quit.
Farris said, "You leave me no alternative then, I am going
to have to dismiss you. You can finish the rest of the day
out or bring the truck in." Van Valkenberg said he would
bring the truck in. He asked Farris the reason for his
discharge but Farris did not answer him. Van Valkenberg
further testified that Farris told him at the terminal that he
was sorry he had to discharge him and would try to get him
a week's severance pay, and that he could give Van
Valkenberg "a good recommendation" if he quit but not
"for being fired."
and that she had no knowledge of any "disagreement" between
Bargenquast and Van Valkenberg Nielson is Respondent's sole dispatcher
and has many conversations with drivers during the course of the day I
consider that Van Valkenberg had the better recollection and credit his
version of the conversation
9 Farris testified that Bargenquast said Van Valkenberg had "mouthed
off" to him Bargenquast did not recall that Van Valkenberg said anything
at all to him that day and said he did not want to give Van Valkenberg any
freight because of Van Valkenberg's "attitude" during the summer of 1969
As Bargenquast's testimony corroborates Van Valkenberg's testimony that
he said nothing to Bargenquast, I find that Bargenquast did not complain
to Farris over the telephone that Van Valkenberg had "mouthed off" to
him
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Van Valkenberg came to the terminal the next day and
picked up his paycheck and a week's severance pay.
According to Van Valkenberg, before he left Farris said, "I
think I know where they are looking for some help" and
gave him the name of a company.
Farns testified that he reminded Van Valkenberg at the
Ideal premises "of all the times [he] had jumped on him and
chewed him out about mouthing off to customers, about
tardiness and absenteeism, and all the trouble he had
caused," that the Company could not put up with losing
business because of customer complaints against Van
Valkenberg,10 and that he had no choice but to let him go.
He gave Van Valkenberg the option to quit or be fired and
said Van Valkenberg would get a week's severance pay
under company policy. Farris denied telling Van Valken-
berg that he would give him a recommendation to another
employer if he quit. He said he could not recall telling Van
Valkenberg he would help him find a new job but that he
did ask Van Valkenberg "if he could find a job" and gave
him the name of "a little delivery service" that he heard had
been looking for drivers. I do not consider Farris a reliable
witness (sec. B , 3, below) and credit Van Valkenberg's
version of the discharge.
B. Analysis and Conclusions
1. Surveillance
Manager Farris told Van Valkenberg a few days after the
Union filed a petition for a Board election on January 12
that "better men" than Van Valkenberg had tried to get the
Union in. Later that month, looking directly at Van
Valkenberg, he remarked, in the presence of several
employees who had finished work about 7:20 p.m., "You
made it in time for your union meeting and I hope you have
fun." A union meeting was actually scheduled for 7:30 that
evening. The next morning, Farris asked Van Valkenberg if
he "got anything accomplished."
Farris testified that some drivers volunteered information
to him about the union activities of Van Valkenberg and
other drivers. With respect to his remark about the
employees making it in time for their union meeting, he said
that drivers told him about the union meeting to be held
that night and that he arranged for the men on the earlier
shifts to work late so that the men on the last shift could
make it in time for the meeting . He said he was told the next
morning by a driver that the union officials were an hour or
two late for the meeting, and he asked Van Valkenberg how
they made out at the meeting to give him "a little dig."
Farris' remarks on the foregoing occasions indicated that
he had information regarding the union activity of Van
Valkenberg and the other employees. Farris' testimony
shows that his knowledge of union activity came from some
drivers and not from union activity carried on openly at the
terminal . Respondent points out that the drivers expressed
their "personal feelings" about union representation at a
10 Farris said that when he teed to talk to Bargenquast on the dock, he
saw "all the freight we would normally get" being loaded on a competitor's
truck
ii According to Van Valkenberg, Farris told him to control his temper
and not to "blow up just over an argument "
12 Hansford testified that he heard uncomplimentary remarks about
meeting attended by Farns early in January. It does not
follow, however, that the drivers would be indifferent to
Farris' subsequent checking on their union activities. I find
that Farris' remarks created an impression of surveillance
of union activity, in violation of Section 8(a)(1) of the Act.
Cf. International Typographical Union, 183 NLRB No. 60. It
seems that whatever information Farris received concern-
ing union activity was volunteered to him. I therefore find
no merit in the allegation of the complaint that Respondent
engaged in surveillance of union activity.
2. Threats
I have found that Farris told driver Clayton Marshall in
mid-January that he did not know whether or not
Respondent would close the Omaha terminal if the Union
got in, and that he subsequently made a similar statement
to several drivers, including Marshall. As Farris' statements
implied that the terminal might be closed if the Union
successfully organized the employees, it was violative of
Section 8(a)(1) of the Act.
3. The discharge of Van Valkenberg
Van Valkenberg obtained authorization cards from the
Union and solicited other employees to sign them; he
arranged meetings at the union hall and notified the
employees of those meetings; and he gave testimony at a
Board hearing favorable to the Union's position that the
drivers at the Omaha terminal constituted an appropriate
bargaining unit.
Terminal Manager Farris said he knew Van Valkenberg
was a union supporter but insisted that he discharged Van
Valkenberg on February 26 solely because of Van
Valkenberg's shortcomings as an employee. His explana-
tion for the discharge may be summarized as follows: After
Bargenquast in the summer or fall of 1970 told Farris not to
send Van Valkenberg to the Ideal Truck Lines dock again,
Farris assigned Van Valkenberg to another run "to
eliminate the problem." He told Van Valkenberg he was
reassigning him "because of an accumulation of com-
plaints" and "to just try and keep his mouth shut." ll
Howard Hansford reported to Farris that several customers
told him "they were very thankful he was on the run instead
of Fred because they disliked him very much" 12 Dock
Foreman Ed Timm told Farris "many times" that most of
the other drivers disliked Van Valkenberg and that Van
Valkenberg "caused many troubles on the dock" when
Farris was in his office. Timm came into the office one
night "very upset" and said that if Farris did not get rid of
Van Valkenberg "someone on the dock was going to kill
him." He asked Farris why he did not fire Van Valkenberg.
Farris replied that "the NLRB would undoubtedly raise an
unfair labor practice suit" because Van Valkenberg was
trying to organize the terminal.13 In December 1969, Van
Valkenberg took over for a week the route of Hubert
Moore, who was on vacation. After Moore returned from
Van Valkenberg from customers but that he did not pass these remarks on
to management
13 Timm testified that he told Farns in August 1969 that Van
Valkenberg was "giving everybody a bad time and using foul and abusive
language," and that, before leaving Respondent 's employ on December 1,
1969, he told Farris to do something about Van Valkenberg "because
CLARK BROS . TRANSFER, INC.
his vacation, he told Farris he had received complaints
from his customers, including Interstate Freight Lmes,14
about Van Valkenberg "mouthing off to them. " 15 Farris,
who had spoken to Van Valkenberg several times about his
"conduct and language," told him he had more customer
complaints and "this was his last chance. I had enough of
it." 16 Farris allegedly had also repnmanded Van Valken-
berg "several times" for being tardy and absent." 17
Accordingly, when Bargenquast complained on February
26 that Van Valkenberg had "mouthed off" to him and
gave a competitor freight assigned to Respondent, he
reminded Van Valkenberg "of all the times I had jumped
on him and chewed him out about mouthing off to
customers, about tardiness, and absenteeism, and all the
trouble he had caused," and told him he had no choice but
to let him go "because I wouldn't have any discipline with
the men at all." 18
Farris conceded that Van Valkenberg "at times" was
more productive than some of the other employees and
Dock Foreman Timm described Van Valkenberg as a good
worker except for giving "smart answers" when told to do
something. It thus appears that Van Valkenberg was a
competent man but that he was inclined to argue over
instructions and, in the words of Timm, used "foul and
abusive language," and gave "everybody a bad time."
Timm so advised Farns early in Van Valkenberg's
employment, and, in the summer or fall of 1969,
Bargenquast of Ideal Truck Lines became so incensed at
Van Valkenberg that he told Farris not to send Van
Valkenberg to his dock again. Before Timm quit Respon-
dent's employ on December 1, 1969, he advised Farris to do
something about Van Valkenberg because one of the other
employees might "kill" him. Dock Supervisor Morford of
Interstate Motor Freight complained to Farris about Van
Valkenberg causing "a disturbance on his dock."19 I find
from these facts that Farris was aware that Van Valkenberg
antagonized both his fellow employees and the employees
of Respondent's customers. While Farris would have been
justified in discharging Van Valkenberg for this reason, it is
established law that "a justifiable ground for dismissal of an
employee is no defense to an unfair labor practice charge if
such ground was a pretext and not the moving cause."
N. L. R. B. v. South Rambler Company, 324 F.2d 447, 449
somebody was liable to kill him" (Timm explained. "Some of the
guys were very unhappy with the way he was conducting himself and him
always having something to say to everybody regardless of what was said
to him and generally just riding the guys ") Timm did not corroborate
Farris' testimony that he asked Farns in November 1969 why Farns did
not discharge Van Valkenberg Rather, he testified that he did not report to
Farris a scuffle between Van Valkenberg and driver Charles McKeag
caused by Van Valkenberg giving McKeag "a little more static or lip that
(McKeag) cared for" because he was "not trying to get anybody out of a
fob " Timm left Respondent's employ before organizing activity began at
the terminal In these circumstances, I discredit Farris' testimony that he
told Timm he was afraid of an NLRB proceeding against him if he
discharged Van Valkenberg
14 Interstate's dock supervisor, Morford, testified that he twice
complained to Farris about Van Valkenberg causing a disturbance on his
dock "because he wouldn't follow the instructions of the interline checker "
15 Moore did not testify at the hearing
38 Van Valkenberg testified that, apart from the Bargenquast episode in
July, Farris never said anything to him about his "attitude or anything "
17 Farris testified that, according to Respondent's records, Van
Valkenberg was late for work 34 times and was absent 15 days in a 6-
month period Dock Foreman Timm testified that he knew Van
463
(C.A. 8). I find for the reasons set forth below that Farris
discharged Van Valkenberg on February 26, 1970, not for
his shortcomings as an employee, but for his union activity.
a. Respondent preferred to deal with its employees
directly rather than through a union. After the Union filed
a petition for a Board election, Respondent called a
meeting of the employees and, through its attorney,
deprecated the need for "a third party" to represent the
employees. Farns told Clayton Marshall and other drivers
that Respondent might close the front doors "if the Union
got in."
b. Respondent knew Van Valkenberg was the leader of
the union movement. Farris told Van Valkenberg that
"better men . . . than you are" had tried to organize the
terminal, and Van Valkenberg was the only employee
called by the Union to testify at the hearing on its
representation petition.
c. Two weeks after he testified at the representation
hearing, although Hansford was also awaiting assignment,
Van Valkenberg was sent to Ideal Freight Lines for the first
time since Dock Foreman Bargenquast told Fams not to
send Van Valkenberg to his dock.20 Van Valkenberg called
his problem with Bargenquast to dispatcher Nielson's
attention, but she sent him on to Ideal, saying, "It should
have blown over by now."
d. I do not credit Farris' testimony that he told Van
Valkenberg that he was discharging him for disregarding
reprimands about "mouthing off" to customers, tardiness
and absenteeism, and causing trouble. Van Valkenberg did
nothing to antagonize Bargenquast on February 26, and
Farris had no reason to believe otherwise. I have found
above, in accordance with the testimony of Bargenquast
and Van Valkenberg and contrary to Farris' testimony, that
Bargenquast did not tell Fams over the telephone that Van
Valkenberg had "mouthed off" to him. Farris himself
testified that he did not get to speak to Bargenquast after
Van Valkenberg told him that he had simply walked on the
Ideal dock and had not said a word when Bargenquast told
him to get off the dock. Farris also testified that he received
no customer complaints against Van Valkenberg for almost
2 months before the discharge,21 and the record shows no
reports to Farns of difficulties between Van Valkenberg
and his fellow employees since Dock Foreman Timm told
Valkenberg was "tardy quite a few times and absent" but affirmed on
cross-examination that other employees were in the "same position" as Van
Valkenberg Van Valkenberg denied that Fams ever spoke to him about
being absent or tardy.
is Van Valkenberg testified that he asked Farris why he was being
discharged and Farns refused to answer him.
19 Morford placed his complaints at the beginning and end of January
1970 Farns testified , however, that he received no customer complaints
against Van Valkenberg after late December 1%9 or early January 1970 1
find that Morford last complained to Fams about Van Valkenberg in early
January 1970
20 Van Valkenberg testified in effect that this was his first trip to ideal
since his argument with Bargenquast . Fams testified that he did not know
whether Van Valkenberg made any trips to Ideal between the argument
and February 26
21 1 regard Farns' testimony on customer complaints against Van
Valkenberg as quite exaggerated Van Valkenberg had his "argument" with
Bargenquast in the summer or early fall of 1%9 . The record shows no
other direct customer complaint to Fams except months later from
Morford at Interstate According to Fams, drivers Hansford and Moore
advised him of customer complaints against Van Valkenberg's conduct
Hansford denied passing on such complaints to Fams and Respondent did
(Continued)
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Faros in November 1969 that he should do something
about Van Valkenberg's conduct. Van Valkenberg had a
poor punctuality and attendance record but, according to
Dock Foreman Timm, this was not unusual among
Respondent's drivers, and Respondent did not put into
evidence the punctuality and attendance records of the
other drivers.
Van Valkenberg, unlike Farris, impressed me as a witness
who tried to be accurate in his recollection of events. I
therefore credit his testimony that Farris after the first
Bargenquast episode said nothing further to him about his
"attitude or anything," 22 that Farris refused to tell him why
he was being discharged, and that Farris offered to give him
"a good recommendation" if he quit.
For the foregoing reasons, I find that the reasons
advanced by Respondent for Van Valkenberg's discharge
are pretexts and that it discharged him in order to
discourage support of the Union, in violation of Section
8(a)(3) and (1) of the Act.23
CONCLUSIONS OF LAW
1. Respondent violated Section 8(a)(1) of the Act by
creating the impression of surveillance of union activities
and by threats to close the Omaha terminal if the Union
succeeded in organizing it.
2. Respondent violated Section 8(a)(3) and (1) of the
Act by discharging Van Valkenberg to discourage support
of the Union.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I will recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
It has been found that Respondent discharged Fred Van
Valkenberg on February 26, 1970, in violation of Section
8(a)(3) and (1) of the Act. It will therefore be recommended
that the Respondent offer him immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of earnings
suffered by reason of the discrimination against him by
payment of a sum of money equal to that which he
normally would have earned, absent the discrimination,
from the date of the discrimination to the date of the offer
of reinstatement, less net earnings during such period, with
backpay computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90
NLRB 289. Backpay shall carry interest at the rate of 6
percent per annum as set forth in Isis Plumbing & Heating
Co., 138 NLRB 716. Further it will be recommended that
Respondent preserve and make available to the Board,
upon request, all payroll records, social security payment
records, timecards, personnel records and reports, and all
other records necessary and useful to determine the
amounts of backpay due and the rights of reinstatement
under the terms of this recommendation.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in the case, I recommend
that:
Clarks Brothers Transfer, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the Union, or in any
other labor organization , by discharging employees or in
any other manner discriminating against them in regard to
hire or tenure of employment or any term or condition of
employment.
(b) Threatening employees with discharge or other
economic reprisals because of their union activities;
creating the impression of surveillance of union activities;
or in any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Fred Van Valkenberg immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of earnings, iri the manner set
forth in "the Remedy" section of the Trial Examiner's
Decision.
(b) Notify the above-named employee if presently serving
in the Armed Forces of the United States of his 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.
(c) Preserve and, upon request, make available to the
Board or its agents all payroll and other records, as set forth
in the "Remedy" section of the Trial Examiner's Decision.
(d) Post at its terminal in Omaha, Nebraska, copies of the
attached notice marked "Appendix." 24 Copies of said
notice, on forms provided by the Regional Director for
not call upon Moore to testify There is no evidence that Van Valkenberg
caused Respondent any loss of business except when Bargenquast refused
to let him pick up freight on February 26, an action fairly attributable to
Respondent's dispatching Van Valkenberg to the Ideal dock contrary to
Bargenquast's instructions.
22 Contrary to Respondent, I find nothing "incredible" in Van
Valkenberg's denial that Farris ever warned him about his behavior after
the first Bargenquast episode. I have noted above that Farris exaggerated
customer complaints against Van Valkenberg and, so far as the record
shows, Farris did nothing about Timm's reports that the other drivers
resented Van Valkenberg's "riding" them
23 As it would not materially change the recommended order, I find it
unnecessary to determine whether the discharge was also violative of Sec
8(a)(4) of the Act
24 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and Recommended Order herein
shall, as provided by Sec 102 48 of the Rules and Regulations , be adopted
by the Board and become its findings , conclusions , and order, and all
objections thereto shall be deemed waived for all purposes In the event
that the Board's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
CLARK BROS . TRANSFER, INC.
Region 17, shall, after being duly signed by the Respon-
dent, be posted immediately upon receipt thereof, in
conspicuous places, and be maintained for 60 consecutive
days. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Decision, what
steps Respondent has taken to comply herewith.25
15 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 17, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "DAIRY EMPLOYEES AND
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the chance to give
evidence, it has been decided that we, Clark Bros, Transfer
Inc., have violated the National Labor Relations Act, and
we have been ordered to post this Notice.
The National Labor Relations Act gives you, as
employees, certain rights, including the right to self-
organization; to form, join, or help unions; and to bargain
collectively through a representative of your own choosing.
Accordingly, we give you these assurances:
WE WILL NOT threaten to close the terminal, lead you
to believe that your union activities are being watched,
or do anything else that interferes with any of your
rights listed above.
465
WE WILL NOT fine or take any reprisal against any of
you because you have joined or supported, or will
support General Drivers and Helpers Union Local No.
554, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other union.
WE WILL offer to give Fred Van Valkenberg his job
back, with full seniority and all other rights and
privileges, since he was found to have been discharged
because he supported the organizational campaign of
the above-named Union.
WE WILL also make up all pay Fred Van Valkenberg
lost, with 6 percent interest.
All of you are free to become, remain , or refrain from
becoming or remaining members of the above-named
Union or any other labor organization.
Dated By
CLARK BROS . TRANSFER
INC.
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 610
Federal Building, 601 East 12th Street, Kansas City,
Missouri 64106, Telephone 816-374-5181.