Darling Freight, Inc.

National Labor Relations Board - Board Decisions

Jul 26, 1971

192 N.L.R.B. 219 (N.L.R.B. 1971)

DARLING FREIGHT INC. 219
Darling Freight, Inc. and Kenneth Norton. Case
7-CA-7952
July 26, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On January 20, 1971, Trial Examiner Ramey
Donovan issued his Decision in the Above-entitled
proceeding, finding that 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. Thereafter,
Respondent filed exceptions to the Trial Examiner's
Decision supported by a 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'm'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,' with the following additions.
We agree with the Trial Examiner's findings that
Respondent was aware of Norton's union activities
and associations, and that he was treated disparately
and unlawfully discharged because of those activities
and associations. The record shows that except for
Ellsworth and perhaps one other (Poling),2 all the
drivers, including Norton, submitted, and the Re-
spondent received, replies to its telegrams within a 24-
hour period, but that Norton, and only Norton,
nevertheless was discharged for the stated, but false,
reason that he failed to reply to his telegram.
Respondent attempted to abandon this defense at the
hearing where it then claimed that Norton was
discharged because his telegraphic response did not
contain a valid reason for not reporting to work as
directed. But, as explained by=the Trial Examiner, this
is not persuasive. Nor does the fact that it was
Norton's wife,-acting upon Norton's instructions, who
sent the telegram, or Norton's obvious inability to
commence work within the designated period, afford
Respondent any defense since it was neither aware of,
nor relied- upon, those factors when it discharged
Norton. If further evidence of disparity is needed, it is
supplied by Respondent's failure to terminate any
driver except Norton for' not reporting for work
192 NLRB No. 24
within the 24-hour period while at the same time
countenancing their absences for periods up to 10
days before taking any action against them.
Moreover, even assuming that Respondent's ac-
knowledged disparate treatment favoring Ellsworth,
who ignored Respondent's telegram but nevertheless
was reemployed, was based on special considerations
in that Respondent may have desired to lease
Ellsworth's trucks as well as obtain his driving
services, we note that Respondent nevertheless made
a specific point of telling Ellsworth that "under no
circumstances" would it reemploy Norton and, in
effect, made Norton's exclusion a condition of its
arrangements with Ellsworth. Respondent took this
position, moreover, even -though it conceded ,that it
was in great need of all the trucks and drivers it could
get and despite the further fact that one of Ellsworth's
trucks had no driver, and remained,idle for the 30 flays
it took Respondent to find a driver. - -
In .these circumstances, and against the background
of Respondent's characterization of Norton as a
"disruptive influence" and Norton's active opposition
to the Union `with Which Respondent contemplated a
continuing relationship, we agree with the Trial
Examiner that Respondent's discharge of Norton was
unlawfully motivated. -
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
Respondent, Darling Freight, Inc:, Detroit, Michigan,
its officers, -agents, successors, and assigns,, shall take
the action set forth in the Trial Examiner's Recom-
mended Order.
1 As the exceptions,,brief, and the entirerecord in this cast adequately
present the issues and positions of the parties , Respondent's request for
oral argument is denied. -
2 While the record indicates , contrary to the Trial Examiner's finding,
that Poling too had responded to the ' telegram,' we ,note that Poling's
severance was a voluntary quit and did not result from a failure to respond.
Thus, the record shows that the broker for whom Poling drove canceled his
lease with the Respondent and Poling chose to go with the truck, to another
employer.
TRIAL EXAMINER'S DECISION
RAMEY DONOVAN, Trial Examiner: The charge in this
case was filed on May 21 , 1970. A complaint was issued on
August 12, 1970, against Darling Freight, Inc:, Respondent
herein , alleging that,, since on or about' -May 6, 1970,
Respondent had terminated employee Kenneth Norton
and thereafter refused to reinstate him because of his
activities in and allegiance to the Fraternal Association of
Steel Haulers, herein FASH , and because he was elected
acting committeeman of the Teamsters Union, and because
of other union activities . Such conduct was alleged to be in
violation of Section 8(a)(1) and(3) of the Act. In its answer
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 'denies the allegations of discrimination and
states that Norton's termination wasa "voluntary quit."
The case was tried in Detroit, Michigan;-dn October 14,
1970.
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Respondent. is a' Michigan corporation with its principal
office and place of business in Grand Rapids, Michigan.
-There are other terminals or installations of Respondent in
Michigan, Illinois, Indiana, and Kentucky, and Respon-
dent.at all material times has been engaged in the interstate
and intrastate hauling of steel and other freight. ' -
In' a representative year, Respondent, at its Michigan
installation, purchased and caused to be transported and
,delivered goods and materials valued in excess of $500,000,
of which goods-and materials valued-in excess of $50,000
-,were transported'and delivered to its Michigan installations
directly from points outside Michigan. Revenue in excess of
$50;000; ,of gross revenue in excess of $500,000, was derived
from the- interstate hauling of steel-and other goods; and
revenue in excess of $50,000 was. derived from services
,performed in and for various enterprises located in States
other than Michigan.
Respondent is an employer, engaged in commerce within
the meaning of the'Act:
FASH is a labor organization within the meaning of the
Act. Local 299, International, Brotherhood of Teamsters,
Chauffeurs, Warehousemen- and Helpers of America,
herein the, Teamsters, ,is a, labor, organization within -the
meaning of the-Act.. ,
'II. THE ALLEGED -UNPAIR LABOR PRACTICES
Respondent is a; member of an employer's association
that negotiates and enters, into a,national master freight
agreement, i. e., a national contract,-,with the Teamsters. The
relevant contract in this proceeding expired' on March 31,
1970. The parties were in negotiations for a new contract
from approximately September 1969 to June 1970.
Norton was aroad driver in Respondent's steel division,'
working out of Respondent's Detroit installation, from
April 1967 to January' 1968. He then' worked for another
trucking firm for 4-months and returned to.Darling in April
1968 until his' terminationby Darling in May 1970. '
While employed by Darling, Norton drove for Ellsworth,
described by Norton as "the broker I drive for." A broker
in the industry, is an owner of trucks who leases the latter to
a trucking company. Taking Ellsworth as a specific
example, hehas leased,his.trucks to Respondent since 1962.
Ellsworth has five trucks, two in his own name and three in
his wife's name 'thathe controls. The drivers of thettrucks
that broker Ellsworth-,leases to Respondent are, Respon-
dent's employees and their pay and deductions therefrom,
I The steel division, as the name implies , hauls steel, as distinguished
from the general freight division which evidently hauls goods or materials
other than steel.-
2 Ellsworth is, a driver-broker..He himself drives one of his leased trucks
at least part of the time . As a driver he is an employee of Respondent and
can be hired or fired. As a lessor of trucks , he is regarded as a,broker or
owner•operator and his 'relationship can be ' terminated by Respondent
hiring and firing ,- and work orders are' handled by
Respondent .2
Despite the fact that the drivers are not the employees of
the broker, there is a relationship between the driver and
the broker, whose truck he drives . As indicated, above, for
instance , when asked ' at the hearing who Ellsworth was,
Norton said that "He is the broker I drive for." 3 The
broker, because of insurance provisions , can exercise, in
effect, a veto over a driverassigned to drive his truck. As far
as appears, both the lessee, Respondent , and the broker
would have ordinarily °the same interest in having the trucks
driven by competent and reliable drivers ._ Ellsworth, for
instance, discovered that as driver of one of the trucks had
been drinking while driving . Ellsworth did.notwant such a
man driving his truck and , he reported , that matter to
Respondent: Although , Ellsworth - in his testimony did not
describe the entire incident; we- assume ` that Respondent
was as much opposed to ,having , its employee drinking while
driving Respondent's materials onaleased , truck as was the
broker.
The evidence indicates that ' there is at least a relatively
substantial degree of stability and continuity in the
relationship between a broker and the then who drive his
trucks: It is apparenf that the trucks that haul 'steel would be
heavy and powerful vehicles and that they represent a
considerable investment by the ' broker. Although there is
no copy of a lease in therecoid ,, the evidence indicates that
the broker is responsible for the maintenance and repair of
his trucks ., Because of his-investment and-responsibility for
the truck, the broker obviously is interested in' the men who
drive ,his particular trucks and, if he - has a satisfactory
driver and the driver , on his part, finds that the truck he
drives is satisfactory and is well maintained so that` the
driver secures adequate driving time ,'a considerable degree
of stability' enters into the 'relationship .- Of course an
employer, such as Respondent, who leases the trucks and
employs the drivers, can exercise flexibiility `in assignment of
drivers if situations arise in the course of business, but there
is no indication that any of the parties involved view it as
desirable or normal -,practice , that drivers drive different
trucks of different brokers everyday. -
A few specific illustrations of ,the. foregoing are: In early
April, 1968, while Norton was working for another
employer, Ellsworth told him he was "going to put on
another 'truck for Darling and`would'I be interested in
driving... ," Norton said , yes,`and returned to work for
Darling where he drove Elsworth 's trucks .4- An example of
the rather limited circumstances under which-4 driver might
be assigned -todrive a truck other than that' of his '"own"
broker is found in a portion of Ellsworth's, testimony. A
driver named Landrum-, employedby Respondent, drove a
truck of broker Tennant. The, truck had broken down.
Peterson, Respondent's vice president of personnel, called
Ellsworth and asked him if he had , a' truck available.
Ellsworth said,, "yes," and, Peterson asked ` if Ellsworth
canceling the lease.
3 Norton has , however, driven trucks of brokers other than Ellsworth., -
4 Its is interesting to note that when, at this pomt,Norton was asked
"who is Ellsworth ?" he did not simply 'say, a broker who lease 's trucks `to
Darling, but said "He is the broker, I drive for,", indicating the way the
driver-broker relationship was regarded.
DARLING FREIGHT INC. 221
would take Landrum as a driver of the truck and Ellsworth
agreed.5
Having described some basic facts that are relevant to the
case, we return now to Norton . He, is and has been a
member of Local, 299 ^ `of the- Teamsters, which has
jurisdiction in the Detroit area and of most of the drivers
engaged in hauling steel. Since 1967 Norton has also been a
member of FASH' and he is, president of the Michigan
chapter of that organization: Norton has not been passive
on employer-employee matters where he believes that the
employer has acted unjustly or unfairly or inadequately. He
estimated that he had filed about 12 contract grievances
with Respondent and most of them were evidently in 1969.
Whatever the precise number of grievances, the evidence
shows that at least sixof these` grievances reached the-point,
of the level of, Respondent's president, Darling, whose
office is in Gary, Indiana. This might indicate that the
grievances were not resolved at a lower level; e.g., by the
manager of the steel division in Detroit, Jolly, who, had held
that position, for about 15 years In any event, President
Darling, on Apri1.24,1969, wrote to McMaster, assistant to
the president of the Union, about six grievances filed by
Norton. -
Darling's-letter aforementioned stated:
I am in receipt of, several grievances from a Kenneth
E.^- Norton,- driver for a fleet owner and in our Steel
Division. =Mr. Norton, to say the least; is a disrupting
influence in our, fleet with his continual harassment of
the company officials. Taking his grievances one-at a
time , I will give you what answers as best I feel are
appropriate-and if-they are not satisfactory, I feel same
should be docketed for hearing before the Iron & Steel
Committee.
The letter then, describes each of the grievances and
Respondent's ;positionlon each. Obviously, the merits of- the
grievances are not before us and, in any`event, we are not in
possession-of evidence, that would enable us to express an
opinion: -However, from reading , Darling's description of
the--grievances' and his, position on each, the matters
involved appear to, be things _ about-which there could. be
reasonable disagreement. Maybe Darling was right, maybe
Norton was right or, perhaps there were relative degrees of
merit or lack of ,merit in the positions. But we see no
evidence of,paranoia 'or completely picayune behavior in
5 Drivers had seniority with, Respondent and with *_b it particular
broker: If, for instance,' the latter secured a new truck, his senior driver
would ' be given the first choice to drive the new truck instead of an older
truck that he was driving.
8 The national contract which is in evidence mentions local grievance
procedures -but does not spell them out.
7 The indication is that eventually Norton was not entirely satisfied with
the, handling of his grievances either by the Employer, or the Union, or
possibly both., For,instance , he was asked at the hearing why he had not
filed a grrevanceabout his termination, the subject of this case . He'replied,
"Because I - never heard how then test of them came out , [the grievances
previously filed, above-." At another point he spoke of a "runaround" on
one of his principal grievances. It was on this same grievance of a 3-percent
deduction that Norton, communicated with Senator Griffin and in the
course of correspondence he believed he had received a copy of Darling 7s
letter to_ McMaster.,, his relight indicate that the Senator had been in
communication with either the Company or the Teamsters pursuant to the
matter raised with him by Norton . One of the grievances covered by the
Darling letter was this 3-percent matter. The circumstances might also
indicate that the Company had become aware that-Norton had gone to the
Senator about the matter and had supplied theletter to show the position it
the grievances and Darling discusses them temperately and
without imputation of the above type. He disagreed on the-
merits , as, of course, was his right. But Darling did say, as
we-have seen, that he regarded Norton, as "to say the least
... a disrupting influence in our fleet with his continual
harassment of company officials {by filing a substantial
number of grievances ]." 7 - u, -
The above matter,-as to materiality-regarding later events,
merits neither exaggerated significance ' nor complete
minimization . It is not claimed that Respondent or its
president or other management people are antiunion or that
they are not reconciled to normal union and management
relations - under a , contract including the filing and
processing of, grievances. But the factis, albeit about a year
prior to Norton's termination, Darling, the top officer of
Respondent, viewed Norton as a disrupting influence who
was continuously harassing management officials with his
complaints and grievances and Darling took the trouble to
convey,this view to a top official of the Union.-
Bromley testified that he became _top operating officer of
Respondent's steel and special commodities division in
November 1969 . This was a new post and Bromley, with, the
title of president of the division, took over many, of the
duties previously performed by Darling with respect to the
division ., However, Darling remained the chief, officer and
president of Respondent . He, was not , a president emeritus.
Jolly was still manager of the steel division - and we assume
that Darling, when he wrote his April 1969 letter,, had been
previously-, briefed by Jolly or other management.-people
about the details of the Norton grievances , It is, not likely
that Darling or later Bromley would-be so familiar with all
the details of various grievances that ,;they would not secure
some briefing from subordinates .s There was therefore a
basic management continuity in the steel division even with
the advent of Bromley and there is no reason to believe that
Darling as president was not also a-factor in the ,continuity
regardless pof whether some of his duties were now carried
out by Bromley .9
For, some time the drivers at Darling had not,had, a
grievance committeeman . In March or April 1970, Norton
originated , a petition on the subject, signed by Darling
drivers , that was sent to Proctor, business , agent of , Local
299. Proctor claimed he had, not received , it. Norton then
had taken. Perhaps all this might be viewed as further "harassment" by
Norton of the Company.
8 For instance, the record shows a February 1969 grievance filed by
Norton-as an employee. The "management" version of the particular
incident that was the subject of the grievance is set forth in an April 8,
1969, memorandum from Owens , dispatcher 'at the Detroit steel'division, to
Jolly. It is reasonable to assume that Jolly in turn would brief higher
management if the grievance reached that stage.
8 At the time Norton secured a copy of Darling's letter,'above, Norton
showed it to Olsen and Owens , two of Respondent's dispatchers. They told
Norton that he was trying to make trouble for the Company but that the
Company could make more trouble for hun than he 'could for the
Company. After being told this,'Norton - posted the letter on the bulletin
board ' "for everybody to see." Ellsworth testified that, around the spring of
1969, he had a conversation with Darling and Jolly and-"... they said he
[Norton I had been causing quite a ]bit of disturbance with the Company
and [they I asked me to fire him...." Ellsworth refused and said that if the
Company wanted to fire Nortoji it would have to do it. Ellsworth told them
that, as long , as Norton was doinga good job for'lum , Norton could stay
on Ellsworth's truck even if Ellsworth had to remove the truck from
Respondent's service.
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
placed a petition on the Respondent's bulletin board so that
drivers might sign'it 10 This petition disappeared, so Norton
and other drivers went to a,Teamsters meeting and brought
up- the matter. As a result, Norton was appointed acting
committeeman- by Proctor, business agent of Local 299 of
the Teamsters. By letter of April 16, 1970, Proctor advised
Jolly, Respondent's manager of the, steel division, of
Norton's appointment. Thus, Respondent was aware that
Norton,- who, as a rank-and-file driver, and union member,
had been, characterized by Respondent's president as a
disrupting influence because of'his "continual harassment
of the' company' officials" by filing grievances, had, now
been-appointed grievance committeeman for Local 299. In
the circumstances - described, we cannot believe ^ that
Respondent's management regarded Norton's, appointment
as welcome news.
Norton never reached the point of actually functioning as
committeeman since the contract expired on March 31;
1970, and was followed by astrike, a lockout, and Norton's
termination. The strike, work stoppage, or protest;,as it, was
variously' referred to in" the record, commenced' early in
April ,1970. About April' 7 there was, a lockout by
Respondent-'for approximately I week.'1 -
This case has not b'een' presented or tried by the parties on
the basis of the legality or illegality of the strike or lockout
or on the basis of the legal status of the employees involved,
including Norton. The crux of the case is -Respondent's
contention, in effect, that Norton was treated no differently
than other employees who had not been working during then
above events andthat his ' termination was not due to illegal
discriminatory considerations. The General Counsel, on the
other hand, contends that Norton did not -receive
evenhanded treatment but that he was discriminated
against because of'his past union activity and because=of his
activities with 'FASH. 'Despite-the foregoing posture of the
case, the issues `and facts cannot be adequately evaluated
without some description of what the record- shows was'
involved'in the events -occurring after the expiration of the
contract. It is also to be stated that this record, did not
undertake a -full scale examination of the relationship or
dichotomy' between the -Teamsters and FASH and it was,
not necessary -that it'shiku'1d.12 But, again,' there are certain
references in.'thelrecord t6'66 Teamsters,and FASH that
form part of the instant factual picture. -
Although_ the employer association and the Teamsters
had been and continued to be in negotiations for many,
months, the contract expired on March 31 and the parties
had not been able to agree on the terms- of anew contract
until 'June 1970. Although Local 299 did not sanction a
10 This and the prior petition were evidently intended to request the
Union to rectify the lack of a committeeman. '
I" Although the record is not, clear on the point , the lockout was
probably not confined to Respondent since the latter was a member of an
employer association that was n `egotiating with and otherwise dealing with,
the Teamsters , the employees' bargaining agent.
12 The Teamsters for one thing were not `represented at the hearing and
were not involved' as an organization.
is Bromley testified that the drivers "were probably out for two reasons
. the contract` wasn't settled .., and they claimed they' 'ere unhappy
with the Teamsters: It was in all of the papers "
Sometime around the -middle of 1970, 'Norton states that FASH filed a
petition for certification with the NLRBs' Pittsburgh office . Apparently the
unit sought was an overall unit of steel haulers throughout the country. -
14 We will take official notice that in early 1970, the exact date which
strike at the expiration of the'old contract, there is no doubt
that a work stoppage by employees took place. Employees
generally appeared, to share, a, common ground of
dissatisfaction with the absence of a contract and with,the
employers' proposed contract terms. There was also present
the Teamsters-FASH situation, which,-on this record, we
cannot undertake to probe fully. - ,
Norton testified that FASH was opposed to the present
Teamsters: leadership, i.e., cindividual officers, because of
their alleged,records.-FASH also was ,, dissatisfied with the
fact that the Teamsters as bargaining agent was not
representing the,interests of the steel haulers in away that
FASH believed should be done.13 Norton states that,, -early,
in April 1970, he and, others ceased work and that a
principal factor was that "they were shooting trucks,
throwing bricks from the overpasses and, it wasn't safe to
run ... there is no-job worth me going out and-getting
killed."
There is, with, the exception of one incident,-no direct
evidence of -violence during the. strike and, lockout.
However, although ` it would probably qualify as hearsay,
we credit Norton's testimony that there was violence during
this period. Manager Jolly testified that he had read in the
newspaper that there was violence on the highway during
the work stoppage. The Trial Examiner is satisfied that
there was physical violence during this period. Although we
do,not-pretend to know who was doing what to whom,-we
do know that the three groups most related -to a, generally
less - than harmonious situation were -the employers and
their association; -the teamsters; FASH;° and ^, their
respective adherents. We accuse none of responsibility but
we-are 'satisfied' that there. was violence at various times in
this work stoppage period.14
Sometime during' the work stoppage and, lockout,
evidently in April 1970,15-Norton stopped at,Respondent's
Detroit terminal with another employee who was returning_
some logbooks. While' there Norton states that he and Jolly
got into, a conversation in the course of which FASH was
mentioned. Norton explained to Jolly that f'We were trying
to get the Teamsters cleared ,11p, the' crooks out '. and
that,: pursuant to this=objective,, the FASH -adherentsu.were
considering ' going to Washington _ about the ' matter.
Although Jolly expressed general agreement with the idea
of cleaning up the Teamsters, "he told me [Norton] not, to-
get involved, in something I [Norton] would be sorry-for"
because the Teamsters were the bargaining agent and Jolly
believed, that FASH should `'work with the T eamsters
rather than against them." 16 i -1 11
By early May 1970, the idea of FASH adherents going to
we did not note and do no recall, the Washington Post ,'a-District of
Columbia newspaper read by ''the Trial Examiner ; reported' violence;
including shooting, in the'Detroit , Michigan; area, duffing the course'of'a
labor situation involving trucking companies, 'the Teamsters, and an
organization of' steel haulers . The story was accompanied by a-pictu r̀e'of "a
damaged truck. At the 'time, it was simply another public news item as far
as the Trial Examiner was concerned . The details of the'story we'do not
remember and we do not refer to it for anything else than that the public
press outside of Detroit reported violence in a strike situation in which the
parties were trucking companies, the Teamsters ,' and, some "organization'
representing steel haulers ; the name`of which meant nothing to us at the
time. - -- - _ , ,
'15 The -stoppage commenced about April 4 or '6; then there was 'a
lockout for a short period; and the stoppage resumed or continued. , ' "
1s Norton' testified that be had two jackets , both of'which' had FASH
DARLING FREIGHT INC. 223
Washington, the possibility of which Norton had previously
mentioned to Jolly, had jelled to fruition. As president of
the Michigan chapter of FASH, Norton was active in
organizing this "march to Washington ." He rounded up
various steel hauling drivers of Respondent and other
employers to go to Washington :17 -On Saturday , May 2, -
19.70, Norton and 8 or 10 drivers , who were going to
Washington, stopped at - Respondent's Gary, Indiana,
terminal .18 Norton asked Jasinski , the, Gary,,terminal
manager and dispatcher ,- if he and the other men could
sleep that night in the terminal bunkroom . Jasinski refused
permission . in the course of conversation with the group,
there was some conversation about the impending trip to
Washington . Norton - said he .was ,going as a delegate.
Jasinski expressed the view that the Washington trip was
not a good idea.
Norton and other FASH, adherents arrived in Washing-
ton on Monday, May, 4, 1970. While there, they picketed
the Teamsters office and went to talk ` to various public
officials such as senators and others . Norton and others
arrived, home from Washington on Sunday morning, May
10.-
Bromley testified that between April 20 and May 4 he
had instructed Jolly to contact all the drivers-in an effort to
have them return to work.. Bromley states that Jolly
proceeded to ,make such contacts by telephone and that by
Monday, May 4, '40 out of, 65 steel hauler drivers had
returned. Jolly places the figure as 30 out of 65. Since Jolly,
as manager, was a step closer to actual operations than was
President Bromley, the former's figure of 30 may be the
more accurate but, in any event, 30-40 had returned.
According to - Bromley, , Jolly had been try' ing to get
Norton, by telephone `every day for weeks and had never
been able to reach him.-Although Jolly 'did not controvert
the foregoing, he ' did not testify about calling Norton in
vain for several weeks or about any call to Norton.
Respondent had Norton's address and'telephone number
and Norton had a wife who lived with him. Other than
Bromley's statement about what Jolly assertedly did, there
is no evidence of a call to Norton, or that his wife was given
a: message for Norton to call Respondent, or that any call
was made in the evening if no answer was received during
the day, or that any other specific step or call was made. It
seems strange that, as far as appears, no contact at all was
able to be made with Norton or someone at Norton's home
during this period.
In any event, Bromley states` that his prime instruction to
Jolly was basically to get the drivers back to work.
Thereupon, under the company name and its Detroit
address, telegrams were sent; in the week of May 4, to all
drivers who had not returned to"work: One of these
telegrams, dated'May 4, 'was addressed to Norton at his
home. The telegram stated:
Report for, work to the Detroit terminal within 24 hours
or we willconsider you a voluntary quit.
insignia in the front and the word "Representative" as well as FASH
inscribed on the back. During the work stoppage, Norton states that he
wore one of the jackets every day andthat he was so clothed when ` talking
to Jolly, above.
17 The men went in their own cars attheir own expense.
18 About 99 percent-of Respondent's loads from Detroit passed through
and stopped at Gary since it was one of Respondent's fuel stops and was
Norton testified that on May 4 his wife was at work
during the day and that -Western Union telephoned during
the day and then telephoned again ' that evening and orally'
relayed the telegram to Mrs. Norton at that time 19
In 1967, according to Nor-ton, -there ' vixas a strike or work
stoppage and the Company had sent out similar telegrams
to those in 1970, above . From talking to a, company'
dispatcher in 1967 about the telegrams, -Norton received the
impression that the telegrams were simply to -=protect the
Company's position under the ICC regulations and were
more of a pro forma move, than anything else. In any event,
in 1970, before leaving for Washington on May 4, Norton
foresaw the possibility that the Respondent would send out
telegrams of the natura,aforedescribed., He instructed his
wife that if there were still reports of shooting and violence
going on, and, while-he was in Washington , she'received a
telegram from the Company about reporting for work, she
should send Respondent a telegram as drafted -byNotton.
If the situation proved to be otherwise, Mrs. Norton -was to
try to contact her husband in Washington.
On May 5 , 1970, Mrs. Norton sent a telegram' , to -
Respondent at its Detroit address. The telegram, under the-'
name , Ken Norton, stated: '
I cannot run due to unsafe conditions on the highways.
On May 5 - or 6, after the above telegram was- sent -in
Norton's name by his Wife, Norton's Mustang automobile,
sitting at his home, was fire bombed-by persons ' unknown.
Norton lives in Three Rivers, Michigan ,, about 125 miles
from Detroit . The local paper; Three Rivers -Commercial,
carried, on May 6, a front page story and picture ` of"the
incident . In the story it is mentioned that Norton, "head of -
the local chapter of the Fraternal Association of, Steel
Haulers," is presently in Washington "to aid in clearing up -
Teamster ,,problems . " Jolly testified that he had read in, a
newspaper about Norton's-car having been bombed.9 `
By letter -to Norton, dated May 6, and on Respondent's
letterhead and Grand Rapids, Michigan, -address, the
following was stated. -
On May 4,1970 , you were sent the following message
'by Western Union telegram (the telegram , above, about
reporting for work within 24 hours or - otherwise be
considered as a voluntary quit , is set forth verbatim).
You did not report as directed . In fact, we still have
heard nothing from you. We are therefore considering
you a voluntary quit, effective this date , and are
removing your name from our employment records.
jsigned, Peterson, vice, _
president personnel`
cc: Local 299 and
Bromley]
Peterson testified that he sent the above termination
letter after Respondent's steel division - office ,in Detroit
telephoned him and informed him that it- had sent--out 24
strategically located for drivers going to other points.
19 We assume- that Western Union was the source of the statement that
it had called during the day or perhaps a child or some other person was at
home. Norton was enroute to Washington or in -that city on May 4.
20 Respondent subscribes to a number of newspapers inrthe local areas
within a few hours drive from Detroit . This is 'because Respondent places
advertisements for drivers and owner-operators in such papers.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
how telegrams to drivers and had received no response
from Norton;, the steel,'division office asked Peterson to,
write to Norton confirming Norton's voluntary quit.
According to Peterson, • the reason the division - office in
Detroit.did,not_handle the entire' natter, was because the
Detroit office did not have secretarial help and also because
the, a aanont employee records ,were in Grand Rapids.
swattesified ,that. he did notsrecall sending out any
other voluntary quit letter on May 6 except the,one to
Norton.
Norton returned from Washington on Sunday morning,
May 10. He, of course, saw, Respondent's May, 6 letter,
signed by Yice President Peterson, referring , to Respon-,
dent's. May , 4 telegram and stating, - inter alia, that
Respondent had -!still _ .. heard nothing, from ,,you
[Norton rand declaring that Norton was a" voluntary, quit.
On. Monday, May .` 11, Norton telephoned Peterson in
Grand Rapids and, referring, to the-termination letter,, he
mentioned the telegram sent in his name by his wife, in
response to Respondent's May 4; telegr-am..E,.Peterson
responded that he had no ,knowledge of a telegram from
Norton21,3Norton thereupon got in touch with Western
Union and secured a copy of the telegram sent by his wife
under his name on May 5 in response to Respondent's May
4 telegram. Thiso.,copy, with a Western Union, certification
therein ;was identified and introduced ' in evidence at the
hearing; as part of the General Counsel's presentation.22
The May 4 telegram to drivers, stated that unless they
reported for work within 24 hours they would=be considered
voluntary quits. There is no evidence that this condition
was enforced.- Drivers who-responded to the telegram and
Save, a reason why they could not immediately, report were
not sent, termination (quit) letters. It.therefore appears that,
ostensibly, the, prime factor in Respondent's termination
letter to Norton was not that he, had actually reported for
work within-24 hours but that, as,the, letter stated, "We still
have heard, nothing from you."-"Ih'erefore, when, at the
hearing, the General Counsel came forward with proof that
Norton had respondedgn,May 5 to Respondent's telegram,
Respondent-;,could not effectively adhere to ,its prior
position, conveyed in its May °6 letter and in -Peterson's
statement to Norton on May 11, to the effectxthatthere had
been "no response" and no,telegram received by Respon-
dent from Norton. - -
At the ,hearing, therefore, Respondent did not contend
that no, telegram , had been received from Norton or that
"we still have heard nothing from you," as Respondent
stated in its May 6 termination letter. Bromley testified that
Norton "sent.us one telegram, in, I believe, May 5." In view
of this fact, now admitted at the hearing by Respondent,
some further -explanation was in order. Bromley then
testified that he considered' Norton's telegraphic response
on, May 5 that he was unable or unwilling to drive because
'23 Peterson - testified that he did not recall having had this telephone call'
frgm Norton . Re ; states ,that, if Norton had called he would hake referred
him to the steel division office in Detroit . We credit Norton in this
incident. He had raised with Peterson the fact, that a telegram had been
sent in, response to Respondent's May 4,-telegram . Since Peterson testified
that the division office, in,asking him to send, the May 6 termination letter,
had expressly said.that.no response had been received, it is likely, that he-
simplyaepeated this factto Norton in saying that he (in effect Respondent)
hadno knowledge of such a telegram.,
22 The telegram was sent from the ,Western Union office at 3!38 p.m. on
of unsafe conditions on the highways as not being "a valid
reason for not coming back to work." ,
The foregoing reason, unveiled at the hearing, could, as
an abstract, matter be why some- employer might treat an
employee as being ,uninterested in returning to work and,
therefore as -having quit. But we are not dealing with- some
abstract factual situation. We have the context already
described hereinabove of Respondent's ` opinion about
Norton as a` disruptive force and we have at least a
variation or a change -in emphasis-''as to'the-reason for
termination" from' ' that ' stated previously' to Norton.
Respondent's manager, Jolly, was aware that Norton's car
had been-bombed and, if a tritekdriver knows that someone
or some group has bombed his car' in his driveway, it would
require little imagination to envisage that,'if hewas driving
a truck on the highway at that time, the truck'might, have
been even a more likely target than the car. In the'light of
such facts it `is' not too apparent why' Norton's telegram,
should have been'characterized as stating an invalid 'reason
for not returning t'o driving within 24 hours.23 "
, ,
Also helpful in appr'aising' Respondent's position regard-
ing Norton is its conduct with respect to other, drivers. In
this April-May 1970 period, Respondent , needed and
wanted drivers. As Bromley, testified, "... We Were "going'
through a lot of turmoil at this time and it was justdifficult
to get good men hired to replace people that left.... It
was, a very turmoil type of time." With the exception of
Norton, who received Respondent's first letter of termina-
tion, Respondent was very tolerant toward the drivers who
were still out and,, unless it became clear that an individual
had no intention -of-' returning to work, he ,Was not
terminated. Respondent did not require that the'he drivers,,
who were out, return to 'work or' signify , an intention to
return within a, day .or two or longer. Indeed, Respondent
also' had a problern, to some degree` of having trucks
available for drivers since some of the owners; of trucks who
leased trucks to Respondent had also been out. And, with
one apparent exception (Norton), Respondent was not,
eager to termirnate-a driver since, as Bromley stated, it was
difficult togood replacements at, this, time. In fact,
when Norton was terminated it took' Respondent 30=60
days to secure a replacement.
The, following are the terminated drivers concerning
whom there is evidencein"the record -
Poling; terminated as quit '5/18; did-not respond to
Respondent's telegram; the broker, , for whom Poling
drove, cancelled-his lease with Respondent and Poling
went with the broker.
Mitchel; terminated 6/1; responded by saying he would
be back when he secured his license plates; Respondent
waited 10 ,clays and Mitchel stilldid' not have plates; he
was then terminated.
May 5. A duplicate was' furnished to Respondent addressee on May 11.
23 Although Norton's telegram was prescheduled and was not due to the
bombing of his car , the bombing tended to confirm Norton 's concern
about unsafe conditions. It is also apparent 'that, while he was in"
Washington,. Norton` was not going to be driving forRespondent. But' the
fact is not helpful' for Respondent since it does not claim knowledge of
such factor or that it ,was a factor in the termination .,We will discuss this
matter of Respondents knowledge of Norton's FASH activities at another
point.
DARLING FREIGHT INC. 225
Caruso; terminated May 12; responded to telegram by
coming in and saying that he was quitting his job.
Eaton, terminated, 5/15; responded by saying he would
return in aweek or 4 or 5 days but, when his broker sold
his-truck, Eaton-quit and worked elsewhere.
In our opinion, the foregoing instances reveal genuine
quits by individuals or, in one case, considerable tolerance
and flexibility on Respondent's part. For instance, Mitchel,
like the others had presumably been engaged in the work
stoppage or strike since about April 6. He obviously knew
well in advance of the event that his license plates would
expire on a certain date. He also presumably knew that
plates were essential in his occupation. Respondent,
however, chose to accept as a valid excuse for Mitchel not
returning to work the assertion that the plates had expired
and that Mitchel would return as soon as he secured plates.
Respondent gave Mitchel 10 more days in his nonworking
status and did not terminate him until June 1 when he still
allegedly had no plates. Norton had never indicated that he
was quitting or did not intend to return; he responded with
a reason why he was not returning within 24 hours specified
by Respondent; the reason, in view of a the circumstances
previously described, was as . valid as Mitchel's and,,in any
event, unlike in the case,of Mitchel or Eaton, Respondent
did not wait 10 days or 4 or 5 or even 2 days to see whether
Norton might by then conclude that•it was safe to,drive.
Ellsworth, the driver-broker (owner) for whom Norton
had driven prior to the strike, was a FASH member and
was with Norton in Washington. Like Norton, he was in
Washington from May, 4-10, returning on the latter date.
Ellsworth and his trucks and drivers had not been working
since about April 1970, because of the work stoppage and
lockout. During- the week-of May 4, while Ellsworth wasin
Washington, one of Respondent's 24-hours-to-report-for-
work telegrams,, the, same as Norton and others were sent,
was delivered to his home. His wife refused to accept it.
Western Union then telephoned the telegram to Mrs.
Ellsworth. No, response to the telegram was sent. Ellsworth
testified . that his wife did not call Respondent but that he
"believed" that Jolly telephoned his wife and that she said
her husband was out of town. Respondent's counsel, who
was cross-examining the witness, then asked:
Q. Could .she have- said you-were not there presently
and that you would contact them as soon as you
returned? ,
A. Possibly.24
In an apparent effort to show that Ellsworth, who had,
unlike Jolly, sent no, telegraphic response to ,Respondent's
24-hour telegram, was more responsive than Norton, Jolly
furnished some testimony.
Jolly testified that, after sending a 24-hour telegram to
Ellsworth -(which the evidence shows was , on May 4 or
sometime later in that week), he, Jolly, telephoned Mrs.
Ellsworth.25 What he said to her does not appear butt Jolly
states that "She told me that Mr. Ellsworth was repairing
his trucks and she would have him call me." There is no
evidence that Ellsworth thereafter called Respondent until
May 11. Ellsworth, of course, was in Washington`fromr May
4-10: At another point Jolly testified that he' spoke to
Ellsworth about May I or 2 and Ellsworth said that he was
repairing his trucks.
In his brief Respondent states that Ellsworth had told
Jolly that `"he had intended to return to work as soon as the
repairs on his truck were completed." It is our opinion that
the evidence does not support the ' foregoing assertion
When Jolly telephoned, he may have been told ' that
rucks but ''there was noEllsworth' was working on, his trucks,-
statement by Ellsworth or his wife that this was the'reason
why Ellsworth,,was not working for Respondent -'or that
Ellsworth would return to work as soon as the repairs were
completed.26
Our conclusion that Respondent was -aware that
Ellsworth and his trucks were not working between April 6
and May 1 I for the . same -reason as Norton and _ other
employees were not working, and that Ellsworth hadrbeen
no more responsive to Respondent's 24-hour telegram than
Norton or others, is borne out by the fact that, in addition
to the telegram sent to Ellsworth, Respondent then sent
notices to Ellsworth (probably by another telegram) that, his
truck leases with Respondent were canceled.
However, when Ellsworth' telephoned Peterson -on May
11 about the communications he had received, Peterson
advised him to call Jolly.-Ellsworth called Jolly on the same
day and then went to Detroit on the same day to meet with
Jolly and Bromley as arranged.27 The three individuals
aforementioned met in Respondent's Detroit terminal on
May 1 ] 28 Jolly, who had been the terminal manager for 15
years, knew Ellsworth well. -Bromley had been- with
Respondent 7 months, and Ellsworth,, had Amet him only
once, before. At the meeting jolly said,that Ellsworth had
done a good job for, the Company in,the past and that his
trucks were needed. It was stated to Ellsworth that "they"
would put him, his trucks, and the, drivers back- to work
except that _ under no circumstances would they take
Norton back. The three participants in the meeting. then
reached an understanding, that Ellsworth would have his
trucks ready as soon as he contacted the drivers and ,within
24 if Mrs. Ellsworth's response was as suggested by counsel, Respondent
would have had to be rather patient since Respondent did not-hear from
Ellsworth until May 11 , the day after his return from Washington.
25 Neither Jolly nor anyone else claimed that they had telephoned Mrs.
Norton or had sought to do so. '
26 See Jolly 's testimony above : Also Ellsworth's testimony is that before,
during , and after the strike it was customary for him to be performing
routine maintenance on his trucks. There is no evidence that any major
repairs, such as replacmg,engines or transmissions, was being performed by
Ellsworth between April 6 and May I I and the trucks had_ not stopped
working on April 6 for any reason other than the strike and lockout. We
are satisfied that Ellsworth's five trucks were not inoperative from April 6
to after May 11 because of mechanical problems and Ellsworth never made
such an assertion to Respondent and Respondent was fully aware that the
trucks were not out because of mechanical difficulties. Respondent's
counsel had asked Ellsworth about the matter.
Q. Did you have any repairs made to your trucks between April
20 and May 4?
A. Probably, changed the tires and a few things like that . . . all
my trucks have,these oil 'bushings . , '. and you have to go around and
check them, and there are a lot of little things you check.
Q. The question was you don 't exactly recall making the
comment to Mr. Jolly between April20 add- May 4 that some of your
trucks were down and you were making repairs to,these trucks (all
Jolly testified to was that he was told that Ellsworth was doing some
repair work on his trucks ].
A. I probably did. If they needed something done to them !_sure
would have told him.
27 Ellsworth lived in Ceresco , Michigan.
28 What follows is Ellsworth's credited testimony regarding the meeting.
226 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
2' or, 3 days'Ellsworth's trucks and the same drivers that had
driven the trucks before the strike, with the exception, of
Norton, were back -at" work.29 One of Ellsworth's- trucks,
however, remained idle for lack of a driver. It took
Respondent 30, days or longer to secure another driver to
replace Norton and to drive the truck that was down. The
replacement was . a new man who had not previously
worked-for therRespondent.
As we earlier pointed out, it was the normal and ordinary
procedure that an owner-operator such as Ellsworth, in
returning,--his -trucks to service, would also have his
customary drivers, albeit they were employee's of Respon-
dent, with those trucks. The Ellsworth drivers had not
driven for Respondent during the strike and they returned
with Ellsworth whenhe advised them the trucks were ready.
This was the` mutually acceptable arrangement that was
understood and agreed on between Bromley, Jolly, and
Ellsworth 'on May"'. 11. "Respondent, however, expressly
excl`uded Norton from this normal procedure and did so at
considerable cost and inconvenience to itself. It is clear that
its a^ . busine`ssL matter, Respondent deemed the lease
' arrangement with ' Ellsworth for-his 5 trucks` as a part of its
operation ,and presumably each tru ck's operation contrib-
uted,to what, we assume, was the profit objective of the
business. But rather than agree to take Norton back with
the other Ellsworth drivers, Respondent allowed one of'the
trucks to be operative for at least a month because it was
unable `-to secure a competent driver. And at the time
Resp'ondent'made this decision and after, Respondent was
well aware ofthe'difficulty that it would encounter in
endeavoriingto_secure a replacement for Norton.
Respondent never` asked Ellsworth, who knew Norton as
a friend as well as one, of his drivers, whether Norton would
be' available as a -driver 'when` the' trucks `returned. If
Ellsworth' had said that Norton was not available to drive
on May 11 or when the trucks were ready, Respondent,
could,' of course, have sought a replacement. But Respon-
dent took the initiative in excluding Norton and, in effect,
made his exclusion a condition of Respondent's. arrange-
mentwith Ellsworth on May 11.
Jolly testified that Norton's name was not mentioned in
the 'conversation on May -11 between Ellsworth, Bromley,
and- Joll y_`.30,Bromley testified that he did not hear folly
mention Norton's name. According -'to Bromley, the
purpose'of the meeting was to get Ellsworth's trucks back to
work`.31`" At a' later point,;"Bromley testified that at the
' meeting'FEllsworth had said that he would not bring'his
trucks'back unless all his drivers also came back. Bromley
states that he replied that the Company wanted the trucks;
that the drivers were available but that Respondent had not
`ia As Ellsworth testified, you do not send a truck back without the man
to drive it.
ao Although Jolly was not present 100 Percent of the time during the
meeting, it is our opinion that he was there most of the time and when the
main , topic was discussed.
31 We do, not doubt that, because of Ellsworth's ownership of trucks,
Respondent was, prepared to pass over his participation in the strike and
his' failure'to heed the 24-hour-return-to-work telegram. But, even to secure
Ellsworth's trucks, Respondent was not prepared to take Norton,
notwithstanding the absence of a replacement.
32 Bromley admitted at the hearing that it was 30-60 days before a
replacement for Norton was secured.
33 In oral argument at the close of the hearing , Respondent's ;counsel
heard from Norton;,and that the Respondent was leasing
the trucks and ,itwould put,drivers in them.32
We have credited Ellsworth's testimony on the May 1 I
meeting because ,he impressed us as a credible witness. As
an owner-operator of five trucks, he had a substantial
investment in his trucks and the source of his, income was
-trucking -companies like Respondent and other trucking
companies in the employer association. To deliberately
testify falsely and adversely to Respondent would make
little sense,, nor is it reasonably to be expected even in the
light of the fact that Ellsworth was a friend of Norton.
Indeed, even to testify truthfully, under the circumstances,
was not discernibly in Ellsworth's personal-interest if such
testimony' was adverse and contrary to Respondent's
position.33
On all the evidence, it is our 'opinion`that Respondent
displayed a rigidity and inflexibility toward Norton-"and' his
return to work that contrasted with Respondent's general
objective of securing the return, if possible, of all the trucks
and drivers. When Respondent had what it believed was an
ostensibly plausible-reason for terminating Norton, it did so
swiftly and with firnality,,and thereafter refused to make any
reasonable accommodation' even to obtain its objective of
securing the return of'the drivers. It expressly foreclosed
any possibility of Norton's return even to its-own detriment
of having an idle truck owing, to the`30-60, days it took to
obtain areplacement of Norton.
It has been said that 'motive is a persuasive interpreter of
equivocal conduct. Respondent's motive for its discrimina-
tion against Norton was the latter's history of activism in
filing grievances. Respondent viewed Norton ` as a
"disrupting influence" who was guilty of "continual
harassment of Company officials." This was'a manage-
ment view ' of ' Norton conveyed in writing to the union
bargaining ' agent and it was not simply some personal
feeling of a minor supervisor orforeman. The situation was
compounded 'when just before the strike in April 1970,
Norton had been appointed acting grievance committee-
man of the Union. Respondent's opinion of Norton, above,
was expressed- about Norton `,when- he had no, union
position. From Respondent's' standpoint, the situation
could be appreciably worse now that-Norton was clothed
with an official status regarding grievances.
We are also of the'opinion that Respondent was aware of
Norton's active and prominent association with FASH
generally and also was aware of the FASH march to
Washington inMay 1970.34 From Respondent's stand-
point, we cannot discern how it could view FASH as a
helpful presence or that the combination of Norton as
stated, with regard,to an owner-operator's relationship to the trucking
companies, that "x .'a fleet operator [like Ellsworth] who leases his. trucks
is kind of like love and marriage [the relationship between the lessor and
lessee is a close and intimate one]." Counsel, also stated, "I was frankly
surprised to hear Mr, Ellsworth testifying against his best interest "
34 We have previously described conversations' with Jolly and Jasinski
on the FASH aspect ; the visible FASH -insignia worn' by Norton. The
newspaper story of the bombing of Norton's car-was read by Jolly and the
story mentioned that Norton, an official of FASH, was in Washington on a
FASH move against the Teamsters. Aside from ' This, Jolly also admitted
that a story of the FASH demonstration in Washington was in a newspaper
he read.
DARLING FREIGHT INC. 227
president of the- FASH Michigan chapter was anything but
an unhappy potential.
Respondent's counsel has intimated that there was no
reason why Respondent should be anything but well
disposed to FASH and that it would probably prefer to deal
with the weaker FASH rather than the powerful Teamsters.
Perhaps Respondent would prefer a weaker union if there
was any reasonable prospect that the Teamsters would, by
the same token, disappear. Realistically, there was no
discernible prospect that the-Teamsters would fold up and
disappear. Respondent and its association had their hands
full in dealing with the large and potent Teamsters. FASH
was "taking swings" at the Teamsters for not doing enough
for the Teamsters drivers- who hauled steel and FASH
eventually, petitioned the, Board for separate representation
of steel hauling drivers. In short, there was a conflict
between the .two Unions, and for each to demonstrate that
one or the other was better for a particular 'group of
employees, more militancy and higher demands could be
expected to be made on the employers. Instead of the
Teamsters alone which was probably enough of a situation
for most employers, FASH, a militant organization,
hopefully on the way up and endeavoring to prove itself as
able to accomplish more than the Teamsters, could scarcely
be viewed as a welcome factor by Respondent. The militant
Norton's prominent identification with the militant FASH
was, in our opinion, not a happy situation in Respondent's
view and, when the opportunity presented itself to be rid of
Norton for all the reasons we have mentioned, Respondent
acted. In our opinion, Respondent discriminated against
Norton because of his union activities and associations and
this is a violation of Section 8(a)(1) and (3) of the Act 35
CONCLUSIONS OF LAW
By discriminatorily terminating employee Norton's
employment and by refusing to allow him to return as a
driver because of his union activities, Respondent violated
Section 8(a)(3) and (1) of the Act.
THE REMEDY
Having found that Respondent has engaged in the unfair
labor practices above described, it will be recommended
that Respondent cease and desist from such practices and
take certain action to remedy the effects thereof and
thereby effectuate the purposes of the Act.
It will be recommended that Respondent offer Kenneth
Norton immediate reinstatement to his former job without
prejudice to his seniority or other rights and privileges. If
the job no longer exists, reinstatement is to be made to a
substantially equivalent job, dismissing or replacing, if
necessary, any employee hired since the initial discrimina-
tion.
We will further recommend that Respondent reimburse
Norton for any loss of pay he may have suffered by reason
of Respondent's discrimination against him by paying him
a sum of money he would have normally earned as wages
from the date, after May 11, 1970, when a truck or trucks,
were available for him to drive, to the date of Respondent's
offer of reinstatement, less any net earnings of Norton
during this period. Backpay shall be computed in
accordance with the method described in F. W. Woolworth
Co., 90 NLRB 289, with interest at 6 percent as set forth in
Isis Plumbing & Heating Co., 138 NLRB 716.
RECOMMENDED ORDER
Darling Freight, Inc., its officers, agents, successors, and
assigns, shall:
1. Cease and desist from discouraging membership and
activities in a labor organization, by discriminating in
regard to hire, tenure, or other conditions of employment.
2. Take the .following affirmative action to effectuate
the policies of the Act:
(a) Offer Kenneth Norton reinstatement to his former job
or, if that job no longer exists, to a substantially equivalent
job, in the manner` set forth hereinabove under the section
entitled "The Remedy." -
(b) Make Kenneth Norton whole for any loss of pay he
suffered by reason of the discrimination against him, in the
manner set forth hereinabove under the section entitled
"The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records, and all other records necessary to
analyze the amount of backpay due under the terms of this
Recommended Order.
(d) Post at its place of business in Detroit, Michigan,
copies of the attached notice marked "Appendix." 36 Copies
of said notice, on forms provided by the Regional Director
for Region 7, after being signed by Respondent's represen-
tative, 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.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
other material.
(e) Notify the Regional Director for Region 7, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith.37
33 Respondent's feelings can be understood but their effectuation
cannot be legally sanctioned.
36 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National labor Relations Board, the
findings, conclusions , and Recommended Order herein shall , as provided
in Section 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."
37 In the event that this Recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read:
"Notify the Regional Director for Region 7, in writing , within 20 days from
the date of this Order , what steps the Respondent has taken to comply
herewith.
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX - whole for any loss of earnings suffered as a result of his
discharge, in the manner set forth in the Board's Order.
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS ,BOARD
An Agency of the United States Government
DARLING FREIGHT, INC.
(Employer)-
Dated, By
After a trial in which all sides had an opportunity to present (Representative) (Title)
evidence, a Trial Examiner of the National Labor Relations
Board has found that we have violated the National Labor
Relations Act in certain respects - ,and has ordered that this
notice be posted.
WE WILL NOT discriminate against Kenneth Norton
or any other employee because of membership and
activities in any labor organization.
WE wu,L offer .Kenneth , Norton reinstatement to his
former job,or, if that job- no longer exists, to a
substantially equivalent job, and we will make him
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, 500
Book 'Building, 1249 Washington Boulevard, Detroit,
Michigan 48226, Telephone 313-226- 3200.