Decker Truck Lines

National Labor Relations Board - Board Decisions

Aug 24, 1960

128 N.L.R.B. 858 (N.L.R.B. 1960)

858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Loren A. Decker d/b/a Decker Truck Lines and Local Union 650,
Teamsters, Chauffeurs, Warehousemen & Helpers of America,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America. Case No.
18-CA-1036. August 24, 1960
DECISION AND ORDER
On March 17, 1960, Trial Examiner Robert E. Mullin issued his
Intermediate Report in the above-entitled proceeding, finding that the
the Respondent had engaged in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. The Trial Examiner also found that the Respondent
had not engaged in certain other alleged unfair labor practices and
recommended that the complaint be dismissed as to these allegations.
Thereafter the Respondent filed exceptions and a supporting brief.
The Board i has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Intermediate Report, and the excep-
tions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the following
modifications :
Although we agree with the Trial Examiner that Earl Hall was
discriminatorily denied an opportunity to earn as much as he would
have had he not been identified with the union campaign, we do not
agree with the Trial Examiner's conclusion that Earl Hall was dis-
criminatorily denied work from January 11 to 17, 1959? There is
uncontroverted evidence in the record that Hall was involved in at
least two accidents resulting in damage to the Respondent's equipment
and that of another party shortly before January 11, 1959, and that
Dale Decker discussed the accidents with Hall on January 10, 1959,
at which time Hall, who had been drinking, attempted to minimize
their significance. Dale Decker asserts that it was because of these
accidents and his feeling of responsibility for the operation of the
business during the absence of his brother, Loren Decker, that he re-
3 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [ Chairman Leedom and
Members Bean and Jenkins].
s The Trial Examiner relied in part on discrimination during this period to support his
finding of subsequent discriminatory denial of work to Hall . Even though we do not find
discrimination during this period, we do find from all the relevant facts in the record,
including Loren Decker 's union animus and his characterization of Hall as an "agitator"
for organization , Hall's refusal to renounce the Union, and the disparity of the earning
records of Hall and another driver , that Earl Hall was discriminatorily denied work
subsequent to January 17, 1959.
128 NLRB No. 91.
DECKER TRUCK LINES 859
fused to assign runs to Hall during the period in question. There is
no evidence in the record from which it can reasonably be inferred
that Dale Decker knew of any union organizational activities among
Respondent's employees at the time the layoff of Hall began. Like-
wise, there is no evidence in the record that Dale Decker engaged in
any other antiunion activities until after Loren Decker's return to
his business on January 15, 1959. On the basis of these facts and the
record as a whole, we find that the preponderance of the evidence fails
to establish that Dale Decker denied Hall work from January 11 to
17, 1959, because of Hall's union activities. Accordingly, we find the
Respondent did not violate Section 8(a) (3) or (1) of the Act by
denying Earl Hall work from January 11 to 17, 1959 3
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Loren A. Decker
d/b/a Decker Truck Lines, his officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in Local Union 650, Teamsters,
Chauffeurs, Warehousemen & Helpers of America, affiliated with In-
ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America, or any other labor organization of his em-
ployees, by discharging or refusing to reinstate any of his employees,
by discriminatorily withholding work, or by discriminating in any
other manner in regard to the hire and tenure of employment of his
employees.
(b) Refusing to bargain collectively in good faith concerning
wages, hours, and other terms and conditions of employment with
the aforesaid Union, as the exclusive representative of all his em-
ployees in the following appropriate unit : All truckdrivers at the
Respondent's terminal in Fort Dodge, Iowa, excluding office clerical
employees and supervisors as defined in the Act.
(c) Unilaterally changing the wages or working conditions of his
employees or by any other means endeavoring to induce them to aban-
don their membership in the Union.
(d) Coercively, or otherwise unlawfully, interrogating employees
concerning their union activities or sympathies.
(e) Threatening his employees with reprisals for engaging in union
or concerted activities.
8In view of the foregoing , we shall modify the remedial provisions in the Intermediate
Report by providing that the Respondent shall make whole Earl Hall for any loss of
earnings suffered as a result of the discriminatory denial of such earnings from January 18,
1959 , until he quit the Respondent 's employ in April 1959.
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) Threatening to shut down operations if the Union organizes
his truckdrivers.
(g) Participating in the circularization of antiunion petitions
among his employees to induce their withdrawal from the Union.
(h) In any other manner interfering with, restraining, or coercing
his employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the aforesaid Union, or any other
labor organization, to bargaining collectively through representatives
of their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or
to refrain from any or all of such activities.'
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Carl Reisner 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, in the
manner set forth in the section of the Intermediate Report entitled
"The Remedy," for any loss of pay he may have suffered by reason of
the Respondent's discrimination.
(b) Make Earl Hall whole, in the manner set forth in the section
of the Intermediate Report entitled "The Remedy" as modified in this
Decision and Order, for any loss of pay suffered by reason of the
Respondent's discriminatory withholding of work.
(c) Upon request, bargain collectively with the above-named
Union as the exclusive representative of all the employees in the
appropriate unit, and embody in a signed agreement any understand-
ing reached.
(d) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of backpay due.
(e) Post at his terminal in Fort Dodge, Iowa, copies of the notice
attached hereto marked "Appendix." 5 Copies of said notice, to be
furnished by the Regional Director for the Eighteenth Region, shall,
after being duly signed by the Respondent, be posted by the Respond-
ent immediately upon receipt thereof, and maintained by him for 60
consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
4 The proviso with respect to a union -security agreement authorized by Section 8(a)(3)
of the Act , customarily found in this paragraph of an Order , has been omitted because
Iowa has a right-to-work law . Nebraska Bag Company, at at., 122 NLRB 654, 656.
5In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
DECKER TRUCK LINES 861
(f) Notify the Regional Director for the Eighteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed insofar as it
alleges that the Respondent refused to execute a contract which had
been agreed to in negotiations with the Union, that Earl Hall was
discriminatorily denied work from January 11 to 17, 1959, or that
Respondent interfered with, restrained, or coerced his employees by
any acts or conduct other than those found herein to have been com-
mitted in violation of the Act.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Re-
lations Board , and in order to effectuate the policies of the Labor
Management Relations Act, I hereby notify my employees that:
I WILL NOT discourage membership in or activities on behalf
of Local Union 650 , Teamsters , Chauffeurs , Warehousemen &
Helpers of America, affiliated with International Brotherhood
of Teamsters , Chauffeurs , Warehousemen & Helpers of America,
or any other labor organization , by discharging or refusing to
reinstate my employees , by discriminatorily withholding work
from them , or by discriminating in any other manner with re-
gard to their hire and tenure of employment.
I WILL offer Carl Reisner immediate and full reinstatement
to his former or substantially equivalent position , without preju-
dice to any seniority or other rights previously enjoyed, and
make him whole for any loss of pay suffered as a result of the
discrimination against him.
I WILL make whole Earl Hall for any loss of pay suffered as
a result of the discrimination against him.
I WILL NOT threaten my employees with reprisals for engaging
in union or concerted activities ; threaten to shut down operations
if the Union organizes my employees ; coercively, or otherwise
unlawfully, interrogate my employees concerning their union
activities or sympathies ; participate in the circularization of
antiunion petitions among my employees to induce their with-
drawal from the Union ; unilaterally change the wages or
working conditions of my employees ; or refuse to bargain col-
lectively with the aforesaid Union as the exclusive representa-
tive of the employees in the bargaining unit described below.
I WILL, upon request, bargain with the aforesaid Union as the
exclusive representative of all the employees in the bargaining
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit described below, with respect to rates of pay, wages, hours,
and other conditions of employment, and, if an understanding
is reached, embody such understanding in a signed agreement.
The bargaining unit is :
All truckdrivers at my terminal in Fort Dodge, Iowa, ex-
cluding office clerical employees and supervisors as defined
in the Art.
I WILL NOT in any other manner interfere with, restrain, or
coerce my employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist the
aforesaid Union, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any or all of such activities.
LoREN A. DECKER D/B/A DECKER TRUCK LINES,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the Labor Management Relations
Act of 1947, 61 Stat. 136 (herein called the Act), was heard before the duly desig-
nated Trial Examiner in Fort Dodge, Iowa, on September 15, 16, 17, and 18, 1959,
pursuant to due notice to all parties. The complaint, issued by the General Counsel of
the National Labor Relations Board, and based on charges duly filed and served,
alleged that the Respondent had engaged in unfair labor practices proscribed by Sec-
tion 8(a)(1), (3), and (5) of the Act. In its answer, duly filed, the Respondent
conceded that it was engaged in commerce within the meaning of the Act, but it
denied the commission of any unfair labor practices.
At the hearing all parties were afforded full opportunity to be heard, to examine
and cross-examine witnesses, to introduce relevant evidence, and to argue orally.
Oral argument was waived. A motion to dismiss, made by the Respondent at the
close of the hearing, is disposed of as appears hereinafter in this report. Subsequent
to the hearing, counsel for the General Counsel and for the Respondent submitted
briefs which have been fully considered.'
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent herein is an individual operating as a common carrier, with a
terminal at Fort Dodge, Iowa. From this terminal the Respondent, operating pur-
suant to permits and franchises issued by the Interstate Commerce Commission, is
engaged in the transportation of goods, products, and merchandise via truck
throughout the United States. During the calendar year 1958, Respondent 's gross
volume of business from direct interstate transportation of freight was in excess
. 'Briefs from counsel were received on November 16, 1959. That same week the Trial
Examiner became ill and was unable to return to his office until January 11, 1960.
DECKER TRUCK LINES 863
of $200,000. Upon the foregoing facts the Respondent concedes, and I find, that
Decker Truck Lines is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local Union 650, Teamsters, Chauffeurs, Warehousemen & Helpers of America,
affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, herein called Union or Teamsters, is a labor organization
within the meaning of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Early in January 1959 several of the truckdrivers in the Respondent's employ
contacted a representative of the Union. At a meeting held on January 10, six
of the approximately eight drivers then working for Decker signed authorization
cards. On January 21, Melvin Jensen, business representative for the Teamsters,
met with Loren Decker to request recognition of the Union and an opportunity to
negotiate a contract. On February 4, Jensen returned to the Employer's terminal to
renew his request for negotiations. This time Decker ordered him off the premises.
During March the parties met for several collective-bargaining sessions. Subsequent
to the third such meeting Jensen mailed a copy of a revised agreement to Decker
for signature. This was never signed and the parties did not meet thereafter. In
July the Respondent announced a wage increase without having consulted the Union.
In January, Earl Hall, a driver, was laid off from work for 1 week. The General
Counsel alleges that the Respondent discriminated against Hall in this fashion and by
thereafter decreasing his hours of employment to discourage union activities. In
March, Carl Reisner, another driver, was laid off and never recalled. This termination
is likewise an issue in the instant case.
B. The evidence as to the alleged violations of Section 8(a) (I) of the Act; findings
and conclusions with respect thereto
Shortly before January 10, Robert Sherratt, one of the Respondent's drivers, con-
tacted Jensen with respect to organizing the Decker employees. As a result, Jensen
held a meeting at the union hall on the latter date. Six drivers attended and all
signed cards in the Teamsters at that time .2 During this particular period, Loren
Decker was on a trip to California. In his absence, Dale Decker, a younger brother,
was in charge of the business.3 The latter testified that he learned of the organiza-
tional meeting from the men and that he talked about the Union with several of
the drivers.
On or about January 15 Loren Decker returned from California. According to
Decker, he knew of no union activity prior to his departure for the West Coast, and
that ". . . when I left [for California] everything was roses. I thought everybody
was happy." According to Decker, upon his return to Fort Dodge he "got wind
of [the Union] . from my brother." With complete candor, he stated that,
upon learning of this development, "I was so mad at that time, I should fire-the
whole bunch and close the joint up. ." Instead of doing this, however, he called
those whom he described as the "steady men" 4 to his office and interviewed them one
at a time as to what had transpired in his absence.
Several of the employees testified as to the conversations which they had with
their employer on this occasion. According to Wayne Smith, Decker stated that
"he was not going to be in the union . . . he could fire us all right now . . . he
said that before going to the union he would sell his equipment and go to a broker
operation and have only two or three of his own trucks left." During the course
of the same conversation Decker stated that he was going to "do something about"
the wage question. Sherratt was among the first to be summoned into Decker's
'These were Earl Hall, Maurice Smith, Charles Prewitt, Alvin Georg, Carl Reisner,
and Sherratt
8 Dale Decker was closely associated with his brother in the operation of Decker Truck
Lines. He had many duties, among them being those of office manager, dispatcher, pay-
roll clerk, and salesman. He testified that he had the authority to hire employees and
that while his brother was In California "I was supposed to be running the business . . .
until Loren got back." On these facts, I find that Dale Decker was a supervisor within
the meaning of the Act.
In addition to seven or eight full-time drivers, the Respondent also had several others
whom it occasionally called and who were known as "extras."
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office . According to this employee, Decker told him that he should have discharged
"the bunch of you" when he returned from California. Sherratt testified that
Decker reiterated that he would not sign a union contract and that rather than
submit he would "go to brokers and lease all his equipment." Sherratt further
testified that Decker told him that he thought he knew "who started this union busi-
ness" and then named Hall, Reisner, and Georg.5 Andreasen, another of the drivers
interviewed in the foregoing manner, testified that Decker asked what he though of
the Union and, also, whether Andreasen had signed a card.
Earl Hall was not assigned any work during the period from January 11 to 17 .6
About January 17, Hall was summoned to Loren Decker's office. According to Hall,
"Loren told me that while he was gone . . . they had a union meeting which was
on the 10th of January, and he said he knew that the ball was rolling there for a
union contract . . . and he could not operate under the contract . . . he said that
before he would operate under a union contract that he would go to leased equipment
or brokers. He would sell all of his tractors and go to lease operations. . . . Loren
told me that he thought that I called the union meeting, but he was not sure. That
I was an agitator, he said he thought . . . I knew a lot of union because I was a
shop steward at Morton's 7 and I had a lot of dealings with the union, and that
I called a meeting. I told him I didn't call the meeting.... " Hall also testified
that Decker told him that he could cut the number of employees in half, that he did
not need all the men he had, and that he could operate with only three or four trucks.
During the course of the conversation Decker accused Hall of having damaged a
shipment of pickles on a trip to Laurens, Iowa, and of having "banged up a trailer"
in Milwaukee. Hall testified that he conceded having broken the pickles but pointed
out to Decker that that was an accident which had occurred several months earlier.
He also testified that he acknowledged having dented a trailer on a trip to Milwaukee
some time before. At this point, according to Hall, "Loren told me we would sit
there and we could say nothing. Nothing was said. We just sit there, and finally I
told him, 'If I am fired, I would like to know it.' And Loren said, 'No, I am not
going to fire you, I'm going to let this thing go on a couple or three weeks, and
see how things work out.' So then, I believe, Loren picked up the telephone and
called Dale, and he told Dale '. . . I believe you better send Hall out tomorrow.' " 8
On January 21, Jensen called on Loren Decker at the terminal office. It is un-
disputed that on this occasion Jensen told the employer that a majority of the em-
ployees had signed cards in Local 650. Jensen told Decker that he had the cards
to prove the union majority in his brief case.9 The Employer, however, did not
ask to see the cards. Jensen requested recognition of the Union and gave Decker
a copy of a proposed contract.10 The latter stated that he wanted to discuss the
situation with his brother and Jensen concluded the meeting with the statement
that he would call again soon.
Early in February the Respondent inserted the following advertisement in the
Fort Dodge Messenger, a daily newspaper:
Wanted to lease-Owner-operator tractor and trailers, and also tractors to pull
company-owned trailers. Some company tractors for sale. Operating between
points in Iowa, Illinois, Wisconsin and Nebraska. References required. For
further information contact Decker Truck Lines on Highway 20, Fort Dodge.
The foregoing advertisement appeared in the newspaper on February 3, 4, 5, and 7,
1959.
About February 4 11 Jensen returned to the Decker terminal. According to Jen-
sen's credible, undenied, testimony, Loren Decker told him at that time that he was
c Loren Decker conceded that he had told Sherratt , "I should have fired you all and
closed the joint." He explained , in his testimony , that at the time "I was so mad I didn't
know what to do."
8 The General Counsel alleges , and the Respondent denies, that this was a discriminatory
layoff. That issue is resolved infra.
7 Immediately prior to his employment by the Respondent , Hall had been a truckdriver
for the Morton Company in Webster City, Iowa. The Union had a contract with the
latter.
8 The foregoing findings are from Hall 's credited , undenied testimony.
0 This finding Is based on Decker's testimony.
15 This was the Teamsters ' "Central States Over-the-Road Motor Freight Agreement."
n Jensen testified that the meeting in question occurred on this date . Loren Decker
testified at one point in his examination that he thought it occurred on January 29 but
was uncertain as to the exact date. Jensen appeared to have the more reliable recollec-
tion as to the date of this meeting.
DECKER TRUCK LINES 865
not interested in the Union and that if the employees wanted higher wages they
should have come to him. Decker thereupon concluded the conversation by
abruptly telling Jensen, "You get off my property and don't come back." 12
On February 7 the Union held another meeting at the Teamsters' hall. At that
time two more truckdrivers in the Respondent's employ, Wayne -Smith and Eldred
Andreasen, signed authorization cards. On about that same day Alvin Georg, an-
other one of the drivers, had a conversation with Loren Decker in which the latter
discussed the difficulties he (Decker) would have under a umon contract. Decker
told the employee that such a development would compel him to lease out his
equipment so that he could go into smaller operations and have fewer drivers.13
About February 11, Jensen telephoned Decker to notify him that the employees
had voted that unless the Union was recognized and a contract agreed upon by'
February 21 they would go out on strike. Decker stated that he would contact him
later and concluded the conversation. The latter thereupon retained Attorney
John H. Mitchell, counsel for the Respondent in this case . On February 13, Mitchell
informed the Union that further contacts should be with him and that he would be
ready to talk with Jensen the following week. On February 16, Mitchell wrote
Jensen that Decker Truck Lines would insist on a Board election before it would
engage in any bargaining with the Union. In a telephone conversation between the
latter about February 16, Mitchell stated that his client was going to insist on an
election. Jensen testified that "I told him I thought it was a little late to talk about an
election. If he wanted an election, he should have so stated January 21." 14
On the morning of February 21, one of the Respondent's customers refused to
load a Decker truck because of a call from the Union. Later that morning a
meeting of the Respondent's employees was held in Loren Decker's office. Sher-
ratt, one of the drivers, had asked Dale Decker to call the meeting. Sherratt, who
had been one of the first to contact the umon organizer, testified that at this time,
"I figured if he was going to get rid of drivers, or go to brokers, we had to have a
job, but then the more I thought about it . . . [I felt] that he could pay part of that,
and we would go to him and talk to him. . . Although it was Sherratt who had
suggested the meeting, Dale Decker notified the other drivers to attend. More-
over, the meeting was held in Loren Decker's office and the Employer spoke to those
in attendance. Under these circumstances, the employees were given the impression
that Decker had called the meeting. Several of the men present testified as to Loren
Decker's remarks to the assembled group. Roy Rasmussen, a newly hired driver
who did not join the Union, testified that Decker stated that he would quit operating
before he would bargain with the Union and that, if forced to sign a straight union
contract, he would have to go to contract hauling or lease out his equipment. Sher-
ratt testified that Decker promised that the men were going to get a raise but that
he could not tell them the amount or any other details. According to Alvin Georg,
another driver present , before Decker left the meeting he told the group, "Fellows,
make up your mind what you want to do because there is quite a dispute between
some of the drivers of going with the union and out of the umon." 15 Sherratt testi-
fied that after Decker left the room he found a slip of paper on the Employer's desk
with the figures 8'/2 cents and $1.75 on it.16 According to Sherratt, he handed this
paper to one of the other drivers with the statement ". . . here is your raise, what you
are going to get." Sherratt's testimony in this connection was corroborated by
Georg who also stated that he had seen the same paper in Loren Decker's hand
before the latter left the room. Decker denied that he had deliberately left any
such paper on his desk for the men to read. However, he conceded that there
were many papers on his desk including some "on the union scale and what the in-
crease was that I had figured before I went to California, what it would cost me." 17
13 The quotation is from Jensen's credible, undenied testimony.
18 The foregoing finding is based on Georg's credible, undenled testimony.
14 At the hearing, Decker testified that he told Jensen, on January 21 and again at
their meeting early in February, that he wanted an election. This was denied by Jensen.
Decker's testimony as to this issue was most unpersuasive. I am convinced that it was
an afterthought and that it was not until February 16 that the Employer, through his
attorney, first stated that he would insist on an election before bargaining
'a The quotation is from Georg's credible, undenled testimony. Loren Decker did not
deny any of the other comments attributed to him by the foregoing witnesses which are
set out above
11 At that time the drivers were getting 8 cents a mile and $1 . 50 an hour for time spent
loading and unloading after the first stop.
17 This quotation is from Loren Decker's testimony.
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under these circumstances , I find that this incident occurred substantially as Sher-
ratt related it.
Early that afternoon several of the drivers went to the union hall where they
met Jensen. The latter then called Mitchell to ask for a conference. Sometime
later that afternoon Mitchell telephoned Jensen to suggest a conference in his office,
and the latter, along with Fritz Egner, his assistant, thereupon went to Michell's
law office. Shortly thereafter Loren and Dale Decker arrived at the meeting ac-
companied by eight of the drivers. Loren Decker testified that the employees had
been at the terminal at the time he learned of the meeting and that he had invited
them to attend. Loren Decker testified that during the early phase of the conference
which ensued, he and some of the men kept insisting that there should be an election.
It is undisputed that Jensen, no doubt alarmed at this open attempt to undercut his
authority as bargaining representative, admonished the drivers present to let him do
the talking. Throughout the conference Jensen insisted that to resolve the current
dispute Decker would at least have to agree in writing to recognize the Union and
agree to negotiate a collective-bargaining contract at a later date. Decker stated
that he would not sign any such written statement. Finally, Attorney Mitchell
signed a brief statement to the effect that on March 2, he and Loren Decker would
meet with the Union to negotiate an agreement. At the hearing Decker conceded
that at the time he was most reluctant to sign any agreement with the Union and that
it was against his better judgment that his counsel even agree, in writing, to further
meetings with the Teamsters. When Jensen secured this commitment to meet again,
the union representatives effected an end to the work interruptions that had pre-
cipitated the conference and the meeting closed. It was undisputed that, in a con-
versation with Mitchell immediately after the conference ended, Jensen showed him
the eight authorization cards which the Union had secured from the Decker
employees.
About a week after this conference, an antiunion petition was circulated at the
terminal by Thomas Birkett, the driver-mechanic for the shop. This petition read
as follows:
We, the undersigned, are employees of the DECKER TRUCK LINE of
Fort Dodge, Iowa.
We do not want Local Union No. 650 of the Chauffeurs, Teamsters and
Helpers to represent us in connection with our negotiations with our em-
ployer, Decker Truck Line, or Loren Decker. Neither do we desire the
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America to represent us, nor do we want Melvin C. Jensen or any
other representative of the Local or the International to represent us. We
desire to carry on any negotiations ourselves. We do not desire to recognize
the Local or the International, or any of their representatives as our bar-
gaining agent.
We further state that we make the foregoing statement voluntarily and we
have not been made any promises, and no threats have been made against
us by Decker Truck Line or Loren Decker; and we have in no manner what-
soever advised with or consulted with John H. Mitchell, attorney for the
Decker Truck Line and Loren Decker, and he has not contacted us in any
manner whatsoever, and we voluntarily came to him to have this statement
made.
The foregoing petition was signed by Birkett, Prewitt, Roy Rasmussen, Andreasen,
and Frank Shimon. The first three signatures were dated February 28 and the
last March 3. Rasmussen and Shimon were drivers hired during the month of
February. Neither they, nor Birkett, had ever signed a card in the Teamsters.
Birkett was very evasive about the manner in which this document had been
secured. He denied any knowledge as to who had prepared it and denied any
knowledge as to what happened to it after the above-named employees had signed
the document. Loren Decker, however, was not so reticent. He testified that
Birkett, Andreasen, and Prewitt had come to him and asked how they could
arrange to prevent the Union from bargaining for them. Decker testified that
these men asked him to try to get such a document for them, that he promised that
he would speak to Attorney Mitchell, that he thereafter went to the office of the
latter to secure the aforesaid petition, and that when he returned to the terminal
he laid the petition on his desk and told Birkett "here is the paper." Decker con-
ceded that he knew Birkett thereafter took the document to all the men at the
terminal and that when it was signed Birkett returned it to him and he, in turn,
brought it to Mitchell's law office. Several of the drivers testified as to the manner
DECKER TRUCK LINES 867
in which Birkett solicited their signatures. According to Hall, when Birkett came
to him-
Tom [Birkett] said he had a letter there that Loren wanted all the drivers to
read. I read the letter, . . . and turned and walked out, and Tom said, "The
old man is going to know what you want to do about signing this letter," and
he was referring to Loren, and I said Tom, "I'm not going to sign the letter."
Hall's testimony in this respect was credible and undenied. At this same time
Birkett contacted Reisner to request that he sign the petition, but the latter also
refused to do so.
As noted earlier, of the five employees who signed this withdrawal petition,
three (Birkett, Shimon, and Rasmussen) had never, in fact, signed a card in the
Union. Prewitt and Andreasen, the other two, had signed authorization cards.
On the other hand, neither they nor any of the other drivers ever contacted Jensen
to tell him of any desire to withdraw from the Union.18
During this same period Andreasen, having heard that Decker had advertised
the sale of his equipment, approached the Employer to ask if he could buy one
of the tractors. According to Andreasen, he asked Decker, "If I could buy one
of his tractors, and keep working and he [Decker] told me that he wanted me
to wait and see when this was over with."
The bargaining conferences between the parties started on March 5. Sessions
were also held on the following day and on March 13. Jensen represented the
Union and the Respondent was represented by Mitchell and Loren Decker. At one
of the meetings Dale Decker was also present. The parties based their discussions
on the Teamsters' "Central States Over-the-Road Motor Freight Agreement."
Jensen testified that during the course of these three bargaining conferences Decker
agreed to every article in the aforesaid contract, except for the pay and mileage
rates which the Union and Decker covered in a rider, or "Addendum," to the prin-
cipal agreement. According to Jensen, at the last bargaining session on March
13, it was agreed that he was to incorporate the pay and wage rate provisions in
this "Addendum" which he was to prepare and mail to Mitchell. Jensen did this
on March 20. On March 27, Mitchell wrote to Jensen as follows:
This will serve to acknowledge in writing the receipt of the addendum to
the contract, which came into my possession thru the mail on March 21st.
The addendum has not been signed by Loren Decker and he believes there
should be an election to determine the bargaining agent for his employees.
This is brought about because of real serious trouble he is having with his
employees, and it is my understanding that they too will ask for an election.
On March 28, three drivers, Rasmussen, Prewitt, and Andreasen, accompanied by
Loren Decker, arrived at Mitchell's office. Rasmussen testified that it was Decker
who told him to go there. At that time Mitchell drafted a request to the Board
that an election be held among the Decker employees. Rasmussen described the
scene at the law office as follows:
The idea of the whole thing was he [Mitchell] wanted to call in the Labor
Relations Board. My idea of the whole thing was this, that the drivers would
like to negotiate a contract with Decker, and we felt we could do so with the
union not present, . . . and we would arrive in some agreement in wages and
mileage rates between ourselves without signing a full union contract, and
at that time, I didn't know that the contract had been negotiated upon. This
$1.75 an hour, 81/2¢ a mile, and I felt that in my opinion instead of having lots
of truck trouble, that I would be willing to sign that paper and negotiate be-
tween drivers, because at that time there was talk that we were either to buy
some equipment or be out of a job.
The three drivers then signed the request for an election which Mitchell had drafted.19
On April 10, 1959, Decker filed a petition for an election. Decker Truck Lines,
Case No. 18-RM-328 20
18 This finding is based on the credible, undenied testimony of Business Representative
Jensen Both Prewitt and Andreasen conceded that they had never notified the Union
of any intention on their part to withdraw.
ie Andreasen testified that Mitchell never billed them for his services.
20 On April 15, 1959, the Regional Director for the Eighteenth Region scheduled a hear-
ing on this petition for April 21. On April 16, however, the Union filed the unfair labor
practice charges involved in the instant matter. In accord with customary practice the
notice of hearing in the RM case was thereupon withdrawn to await disposition of the
unfair labor practice charges.
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Subsequent .to the letter dated March 27, referred to above, the Respondent made
no effort to contact the Union about further negotiations. In July the Respondent
increased the mileage rate for its drivers from 8 to 81/2 cents, the hourly rate from
$1.50 to $1.75, and provided a $3.50 allowance for what was known as the first drop
or pickup that a driver had to make. These increases were identical with the wage
and mileage provisions of the addendum?' It was undisputed that the increases
were put into effect without prior consultation or notice to the Union.
Conclusions with Respect to,the Alleged Violations of Section 8(a) (1)
From the testimony in this case, and particularly that of Loren Decker himself,
the adamant opposition of the Respondent to any organizational activities on the
part of his employees is most apparent. On the basis of the foregoing findings, it
is my conclusion, and I find, that the Respondent violated Section 8(a) (1) of the Act
by: (1) Loren Decker's threats to discharge his employees for their union activities;
(2) his interrogation of the employees as to their union affiliation in the context of
threats to discharge them for taking part in concerted action; (3) his threats to
cease operations before he would bargain with the Union and his frequent state-
ments that he would never sign a contract with it; (4) his threats to convert his
operations to an owner-operator plan rather than recognize the Union as well as
his newspaper advertisements to that effect which were so obviously designed to
substantiate these threats; and (5) his statements to Sherratt and Hall that he knew
the identity of those responsible for the organizational movement among his em-
ployees.22 It was a further violation of the same section of the Act for Loren
Decker to participate in the meeting of employees at his office on February 21 and
to promise them a wage increase during the course of a discussion in which he re-
iterated his earlier threats to quit his present operations before he would bargain
with the Union and that if forced to sign a union contract he would go to contract
hauling or lease out his equipment.23 Moreover, when he closed his discussion with
the men at this meeting with the statement "make up your mind what you want to
do because there is quite a dispute between some of the drivers of going with the
union and out of the union," he likewise violated Section 8(a)(1) by encouraging
the employees to negotiate directly with him rather than through their bargaining
agent. Medo Photo Supply Corporation v. N.L.R.B., 321 U.S. 678, 684-685. By
21 They were effective July 12.
22 During the course of some of the interviews which Decker held with the men in
January he accused certain of the drivers of drinking during their layover periods in
Chicago. Counsel for the Respondent seeks to excuse all of the subsequent interrogation
about the employees' union activities on the ground that alcoholism was the most im-
portant issue raised Certainly no common carrier can afford to ignore or minimize such
an issue as to its drivers. On the other hand, from Decker's own testimony as to
Sherratt's record over a period of many years it is obvious that this was no new prob-
lem. Moreover, from the transcript and from Loren Decker's demeanor as he frankly
testified to his anger and consternation upon learning that his drivers had called upon
the Union for help, I am convinced that the question of drinking had little, if any, part
in most of the interviews. In any event, that subject could not excuse the threats of
reprisal for their organizational efforts, set out above, which Decker voiced to his,
employees during these conferences
23 Some months prior to January 1959, Decker had been advised by Maurice Stark, his,
tax attorney, as to the advantages of instituting an employee profit-sharing plan.
Although Decker contacted Stark several times about effectuating such a plan, it was
not until February 3, 1959, that Stark finally sent a draft of articles of incorporation
to Decker. The Employer, however, made no announcement of any such plan to his
employees, nor gave any intimation of a wage increase until after he learned of the
organizing of his employees Under these circumstances, the Respondent cannot argue
that the announcement was privileged. "[An] employer is [not] foreclosed from announc-
ing or granting economic benefits during a union's organizational campaign What is
unlawful under the Act is employer's granting or announcing such benefits (though previ-
ously determined upon bona fide) for the purpose of causing the employees to accept or,
reject a representative for collective bargaining." Joy Silk Mills, Inc, 85 NLRB 1263,
at 1287, enfd as to this point 185 F. 2d 732 (C.A.D.C.), cert. denied 341 U S. 914.
Decker's statements as to the prospects of a wage increase in this context violated Sec-
tion 8(a) (1) of the Act because it "minimizes the influence of organized bargaining It
interferes with the right of self-organization by emphasizing to the employees that there
is no necessity for a collective bargaining agent " May Department Stores d/b/a'
Famous-Barr Company v. NL.R.B, 326 U.S. 376, 385.
DECKER TRUCK LINES 869
his conduct at this meeting and by his subsequent participation in securing the anti-
union petition which Birkett circulated on the Employer's time and with Decker's
obvious sponsorship, the Respondent similarly violated Section 8(a)(1) of the Act
by soliciting the employees to withdraw their support from, and to repudiate, the
Union. Vac Art, Inc., 124 NLRB 989. Finally, it was a violation of the same
section of the Act, as well as Section 8(a) (5), for the Respondent to put into effect
the wage increase of July 12, at a time when negotiations were pending with the
Union. May Department Stores d/b/a Famous Barr Company v. N L R.B., 326
U.S. 376, 384-385; Benne Katz, et at., d/b/a Williamsburg Steel, etc., 126 NLRB
288; Intracoastal Terminal, Inc., et al. 125 NLRB 359.
C. The evidence as to the alleged violations of Section 8(a) (5); findings and
conclusions with respect thereto
1. The appropriate unit
On January 21, 1959, when Jensen first met with Decker, he requested recognition
of the Union as the collective-bargaining agent for Decker's employees. At the
same time he left with the Employer a copy of a proposed contract which covered
only drivers. It is apparent from this record, and there appears to be no dispute,
that the parties used the word "employees" as being synonymous with "drivers." It
is well settled that the driver-employees of a common carrier such as the Respondent
constitute an appropriate unit. I find that to be the appropriate bargaining unit
here. The McMahon Transportation Company, Inc., 89 NLRB 1652, 1655.
On January 21, the Respondent had seven regular drivers in its employ. These
were Andreasen, Georg, Hall, Prewitt, Sherratt, Maurice, Smith, and Wayne Smith 24
It also had several extra drivers. These were Carl Reisner, Adolph Guarill,
Raymond Hair, Robert Macken, Paul Trusty, and one Lynn 25 During the same
period, Thomas Birkett was a driver-mechanic, and two other employees, Gary
Peterson and Duane Decker, were engaged in general maintenance work. Peterson
and Duane Decker were high school students who worked on a part-time basis.
They did no driving other than occasionally to move trucks around the terminal yard.
I will recommend that they be excluded from the unit.
The Respondent would include Birkett in the unit of drivers on the ground that
he does a substantial amount of driving. Birkett was the only individual regularly
engaged at repair work in the shop. None of the regular drivers did any of this
work. Birkett was paid an hourly wage when he drove, the same as that earned
while working in the shop. Moreover, he did not receive any mileage allowance
as did the regular drivers. On those occasions when Birkett did drive he averaged
only three over-the-road trips per month and these were relatively short trips made
within a 120-mile radius of Fort Dodge. This was in contrast with the work of the
regular drivers who drove from Fort Dodge to Chicago, and points in Wisconsin
and Indiana which required that they be absent overnight and longer. On this
record it appears that Birkett's work is primarily of a local nature and that his
principal duty is to maintain and service the employer's trucks. I, therefore, will
recommend that he be excluded from the unit. Jocie Motor Lines, Inc., 112 NLRB
1201, 1203.
Of the extra drivers listed earlier, Guarill, Hair, Lynn, Macken, and Trusty may
be considered together. Guarill had his own truck and was himself an entrepreneur
in the trucking business. The four others lust named had regular employment with
other carriers or with the Hormel Packing Company. Their pay records were
received in evidence and from these it is clear that these drivers did not work for
Decker more frequently than once a week and sometimes only once a month. For
this reason, it is my conclusion that the irregular character of their employment
for the Respondent made them casuals insofar as the Decker payroll was concerned.
Accordingly, I shall recommend that they be excluded from the unit of drivers.
Decatur Transfer & Storage, Inc., 105 NLRB 633, 637.
Carl Reisner was originally hired as an extra driver in May 1958 and for several
months drove for Decker's only I or 2 days a week. At the same time he was
also employed on a similar basis as a driver for the Hormel Packing Company.
During that period it appears that he had the same status at the Respondent's terminal
as the other extra drivers listed above. In August or September 1958, however,
u As Found earlier herein, Dale Decker had supervisory status. He, therefore, must be
excluded from the unit.
This last employee was also referred to in the transcript as Denlind.
5 7 76 84-61-vol 128-56
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he began working approximately 5 days a week for Decker. At the same time his
driving for Hormel was reduced to one run each week, normally on Thursday.
Dale Decker testified that Reisner worked substantially more than the other extra
drivers and that he tried to keep him as busy as he could. This was borne out by
the record of his wage payments which established that in the months that he
worked in 1959 he averaged approximately $150 per pay period. He also received
the same wage rate as the full-time drivers and was paid on the regular payday for
the latter. On the basis of the foregoing it appears that Reisner was not a casual, but
more properly must be described as a "regular part-time" driver as that classification
has been used by the Board. Reimers-Kaufman Concrete Products Company, 110
NLRB 593, 594; Decatur Transfer & Storage, Inc., 105 NLRB 633, 636-637. In
accordance with the foregoing decisions, I shall recommend that he be included in
the unit of drivers.
On the basis of the above findings, I conclude and find that on January 21, 1959,
when Jensen first demanded recognition of the Union, there were eight drivers in
the above-described unit. On January 10, six of this number 26 had signed cards
authorizing the Teamsters to represent them. The Union, therefore, had a majority
in an appropriate unit and pursuant to the Act Decker was obligated to bargain with
the Teamsters in good faith as the employees' designated representative. Moreover,
since the Union held a majority in January 1959, when the request for recognition
was first made and when the initial unfair labor practices occurred, the Teamsters'
status as bargaining agent cannot now be terminated even if, currently, it does not
have a majority in this unit. Ray Brooks v. N.L.R.B., 348 U.S. 96, 103-104; Franks
Bros. Company v. N.L.R.B., 321 U.S. 702, 704-706.
2. The refusal to bargain
The General Counsel contends that at the conferences held in March the parties
reached agreement on all provisions of a contract, but that when the Union had the
terms reduced to writing, Decker refused to sign.
The three individuals, Jensen, Decker, and Mitchell, who participated in all the
bargaining conferences testified at the hearing in the instant case. Jensen testified
that the Employer agreed to all the provisions of the Teamsters' Central States
Over-the-Road Motor Freight Agreement, as amended by the addendum mentioned
earlier herein. According to Mitchell, agreement was reached on most, but not
all, of the terms. Jensen and Mitchell both testified that agreement was reached to
either adopt as written or with slight modification, or to pass over, the following
articles in the Central States contract: II, III, IV, VI, XI, XII, XIII, XIV, XV, XVI,
XVII, XVIII, XIX, XX, XXI, XXII, XXIII, XXIV, XXV, XXVI, XXVII, XXVIII,
XXIX, XXX, XXXI, XXXII, XXXIII, XXXIV, XXXVII, XXXVIII, XXXIX,
and XL to XLVI. Mitchell testified, however, that no agreement was reached on
the following articles of the Central States contract: I, sections 3 and 4 (on union
shop); V, section 3 (on seniority); VII, section 1 (on grievance machinery com-
mittees); VII, section 1 (on grievance machinery and union liability); IX (on
"protection of rights"); X (on discharges); XXXV (on health and welfare bene-
fits); and XXXVI (on pension fund).
The addendum, which appears in the record as General Counsel's Exhibit No. 10,
set out the agreement of the parties on a wage increase-as a modification of articles
XXII, XXIII, and XXV of the Central States contract. It also provided that all
other provisions of the Central States Over-the-Road Motor Freight Agreement
would be in full force and effect. Both Mitchell and Decker conceded that the
addendum, as drafted by Jensen, correctly set forth their agreement on a wage
increase 27 Decker testified that he refused to sign the document because (1) of
the provision which incorporated all other terms of the Central States Over-the-Road
Motor Freight Agreement, and (2) as he testified, "the men kept coming and asking
when are we going to have an election."
Both Jensen and Mitchell were sincere and credible witnesses. Insofar as there
are conflicts in their testimony about the negotiations, I have credited Mitchell.
This is due, in large measure, to the fact that Jensen indicated difficulty in answering
several questions as to specific articles because, as he testified, he did not have with
him his complete notes on the meetings. Mitchell, on the other hand, testified in
considerable detail as to certain provisions about which there was dispute. His testi-
26 Namely, Georg, Hall, Prewitt, Reisner, Sherratt, and Maurice Smith.
n Mr Mitchell testified • "The discussions about wages were carried on . . . and finally
arrived at, and we left it that he was to submit that matter to us in writing, which he
did, and he put it down as Exhibit 10; sent it over here and Mr. Decker refused to
sign it."
DECKER TRUCK LINES 871
mony was at all times frank and straightforward. For these reasons I have accepted
his testimony that at the time of the last meeting of the parties on March 13 the
Employer had not agreed to so much of the Central States Over-the-Road Motor
Freight Agreement as dealt with "hot cargo," health and welfare benefits, pensions,
and certain other terms, as detailed above.
The General Counsel alleges that Decker failed to bargain with the Union in good
faith. This allegation is amply sustained by the record.
The lack of complete agreement as to all the terms of the Central States Over-the-
Road Motor Freight Agreement did not excuse Decker from his obligation to con-
tinue negotiations and it did not free him to put into effect the wage increase of
July 12 without consulting the employees' bargaining agent. In his brief, counsel
for the Respondent asserts that since Decker never refused to attend a bargaining
session, he cannot now be charged with having failed to bargain. It is clear that
Decker's attorney advised him to bargain with the Teamsters and that thereafter
Decker did meet with the Union. A mere "willingness to talk" (N.L.R B. v. Marden
Mfg. Co., 217 F. 2d 567, 570 (C.A. 5), cert. denied 348 U.S. 981), however, does
not of itself constitute bargaining in good faith. This is borne out by Decker's own
testimony as to the bargaining conferences. Thus, as to a recognition clause which
referred to the Teamsters as the exclusive bargaining agent, Decker testified, "Well,
the first beginning of it, we didn't agree on the first beginning of it, because it was
exclusive." (Emphasis supplied.) Later, he was asked the following question and
gave the answer which appears below:
Q. I want to ask you to read Art. 2, Section (a), that says, in substance, that
you recognize this local union as the bargaining agent for your employees. Do
you understand that is what is meant?
A. I never recognized them at all.
At another point in his testimony Decker explained his opposition to article X which
would require that the employer give the employee a warning notice prior to a dis-
charge or suspension and send a copy of such notice to the Union. Decker testified,
"I didn't agree upon that because I thought we could work out the differences among
ourselves." Here, as in L. L. Mature Transport Company v. N.L.R.B., 198 F. 2d
735, 739 (C.A. 5), "the employer, while freely conferring, did not approach the
bargaining table with an open mind and purpose to reach an agreement consistent
with the respective rights of the parties" It is apparent from Decker's own testimony,
as set forth above, that he never accepted the principle of negotiating with the Union
as the exclusive bargaining agent for his employees.
In the event an employer has an honest doubt as to the Union's purported ma-
jority, or the unit which the Board would find appropriate, it is well settled that he
may insist on a formal representation proceeding and a Board-conducted election
to resolve such doubt before being obligated to bargain. N.L.R.B. v. Jackson Press,
Inc., 201 F. 2d 541, 544-545 (C.A. 7); Joy Silk Mills v. N.L.R.B., 185 F. 732, 741
(C.A.D.C.), cert. denied 341 U.S. 914. On the other hand, such a position on the
part of an employer is not tenable should the evidence develop that he did not
entertain any real doubts of the union's majority and that his insistence on certifi-
cation was motivated largely by a desire to gain time to destroy the union's support.
N.L.R.B. v. Wheeling Pipe Lines, Inc., 229 F. 2d 391, 393 (C.A. 8); N.L.R.B. v.
W. T. Grant Company, 199 F. 2d 711, 712 (C.A. 9), cert. denied 344 U.S. 928;
N.L.R.B. v. Star Beef Company, 193 F. 2d 8, 14 (C.A. 1); N.L.R B. v. Ken Rose
Motors, Inc., 193 F. 2d 769, 771 (C.A. 1). On the record here, I find that at no
time material to this case did Decker have a bona fide doubt as to the Union's ma-
jority status. On January 21, when Jensen first requested recognition, Decker did
not ask that the Union prove its majority even though he conceded that Jensen told
him that he had the employees' authorization cards in his brief case. It was not
until mid-February that Decker, through his counsel, requested an election. In
the meantime, as found earlier herein, Decker engaged in a series of flagrant
violations of Section 8(a) (1) of the Act which were designed to destroy the union
majority. This course of conduct continued throughout the months of January
through March and culminated in Decker's sponsorship of the request for a Board
election. Consequently, on the record in this case, it is my conclusion, and I find,
that Decker, at no time subsequent to January 21, 1959, negotiated in good faith
with the Union.28 By this conduct, and by the unilateral wage increase accorded
28,See Joy Silk Mills v. NLRB , 185 F. 2d 732, 741 (CAD C.), cert. denied 341 U.S
914; Heat Toner Corporation, 124 NLRB 1256 ; F. H. Reeves and Sons, Inc., 121 NLRB
1280, 1281; Traders Oil Company of Houston, 119 NLRB 746, 750; Poultry Enterprises,
102 NLRB 211, 212.
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees in July, Decker violated Section 8 ( a)(5) and ( 1) of the Act.
N.L.R.B. v. Herman Sausage Company, Inc., 275 F. 2d 229 (C.A. 5).29
D. The evidence as to the alleged violations of Section 8(a) (3); findings and
conclusions with respect thereto
1. Earl Hall
This employee was hired by the Respondent as a regular driver in May 1958
and left its employ in April 1959. The General Counsel did not allege that Hall
was discriminatorily discharged. He did allege that Hall was discriminatorily laid
off from January 11 to 17, 1959, and that thereafter Hall was discriminatorily
denied certain runs. The Respondent denied these allegations.
Dale Decker, for the Respondent, testified that he did not use Hall from January
10 to 17 because Hall had had two minor accidents the week before and "because
of the damage . . I was afraid something more serious might happen." Dale
Decker conceded, however, that Hall was not told that this was the reason. Hall
testified, credibly and without contradiction that during this period Dale Decker
told him that his tractor was being repaired and that no other tractor was available.30
Wayne O. Smith, another driver, testified that during this week he inquired of Dale
Decker as to why Hall was not at work. According to Smith, Dale Decker answered
that Hall's truck was not ready and "he [Hall] was about through here anyway."
At the hearing, Decker conceded that Smith's version of their conversation was
correct and added, "He [Hall] was through as far as I was concerned."
On January 16, Loren Decker returned from California. As set forth earlier
herein, immediately after his brother informed him of the union campaign which
had begun in his absence, Loren Decker began interrogating the drivers as to their
union activities. On January 17, also as described above, Loren Decker kept Hall
in his office for several hours during the course of which conference he denounced
the Union, stated that he would sell his equipment before he would operate under
a union contract, described Hall as an "agitator," and accused him of having called
the organizational meeting held on January 10. During the course of this interro-
gation Loren Decker accused Hall of having "banged up a trailer" and having
damaged some pickles on a trip to Laurens, Iowa. Finally, Decker concluded the
meeting by telling Hall, "I am not going to fire you, I'm going to let this thing go
on a couple or three weeks , and see how things work out."
Dale Decker did not testify as to any trip on which Hall damaged a shipment of
pickles. He referred only to an incident in Milwaukee when Hall had scratched the
body of his trailer. Decker conceded at the hearing that he had never bothered to
have this damage repaired . Dale Decker likewise testified that a second accident
which allegedly caused him to be concerned about Hall was one in which Hall
had bumped the fender of another truck, also in Milwaukee. Decker was extremely
vague about this incident, however, and never gave the date on which it occurred.
He conceded that he did not know the cost of repairs to the other truck and that
he had never inquired about it subsequent to the time he turned the entire matter
over to the Employer's insurance carrier.
On the basis of the foregoing findings, it is my conclusion that the reason which
Dale Decker advanced at the hearing for not having used Hall from January 11 to
17 was a pretext and an afterthought. As noted earlier, he conceded that Hall was
never informed of any such reason. As soon as Loren Decker returned from Cali-
fornia his brother informed him of the organizational campaign which had begun
in his absence . Soon thereafter Loren Decker summoned Hall to his office , roundly
denounced the Union, interrogated the employee as to his connection with the move-
ment, and characterized him as an "agitator ." On these facts it is my conclusion,
and I find, that the real reason for Hall's layoff from January 11 to 17 was not the
reason assigned by Dale Decker , but rather the employee 's union activities. In
so doing, the Respondent violated Section 8(a)(3) and (1) of the Act.
The General Counsel also alleged that in the period subsequent to January 17,
Hall was discriminatorily denied runs so that his earnings were reduced. In sup-
29 On the other hand , since I have found, on the basis of Mitchell 's testimony , that the
parties were not in complete accord as to the terms of a collective -bargaining agreement
at the time of their last conference , I will recommend that the complaint be dismissed
insofar as it alleges that the Respondent refused to execute a contract which had been
agreed to in negotiations with the Union
30 At the hearing , Dale Decker conceded that the availability of a tractor had nothing
to do with Hall's being off work.
DECKER TRUCK LINES 873
port of this allegation the biweekly pay records of Hall and Prewitt, another
driver, were introduced. The comparative earnings of these two employees were
as follows:
Hall Prewitt
November 8,1958------------------------------ $289
November 22,1958--- ------------------------ 266. 75
December 6,1958------------------------------- 230. 56
December 20,1958------------------------------ 300. 47
January 3,1959-------------------------------- 224 12 $198 57
January 17,1959------------------------------- 218. 28 236. 39
January 31,1959------------------------------- 105. 28 296. 38
February 14,1959------------------------------ 230. 86 242. 31
February 28,1959------------------------------ 279 78 264. 80
March 14,1959--------------------------------- 247 74 302. 70
March 28, 1959--------------------------------- 197. 50 326. 72
April11,1959---------------------------------- 198 30 340. 56
April13, 1959---------------------------------- 31 93. 84
April 25, 1959---------------------------------- 302. 58
From the above it is apparent that throughout the month of March and until Hall
quit in April his earnings were substantially less than those of Prewitt. The
Respondent did not contend that Prewitt's earning record was unrepresentative of
the other regular drivers during the period in question.
In view of the earlier finding as to the discriminatory treatment of Hall in
January, the following facts are relevant: In January, at the conference in which
his Employer denounced the Union and made it clear that he considered Hall
one of the "agitators" responsible for the organizational campaign, Loren Decker
told Hall, "I am not going to fire you, I'm going to let this thing go on a couple or
three weeks, and see how things work out." On February 20, when Loren Decker
was concerned about the union demand that he negotiate or face a work stoppage,
Decker asked Hall what he would do in the event of a strike and the latter replied
that he would not cross a picket line. Later that month Hall refused to sign the
employer-sponsored withdrawal petition which Birkett circulated at the terminal.
Prewitt had been among the first employees to sign a union card. On February
28, however, he signed the withdrawal petition. Later, he also signed the petition
for an election 32 In view of the disparity of the earning records of these two
drivers for the months of March and April, viewed in the light of the above facts
and the earlier discrimination found to have been practiced against Hall in January,
it is my conclusion that in the period subsequent to January 17 he was discrimina-
torily denied an opportunity to earn as much as he would have, had it not been for
his identification with the union campaign. In so doing, the Respondent further
violated Section 8(a) (3) of the Act.
2. Carl Reisner
As found earlier herein, Reisner was hired in May 1958 as a part-time driver.
From August or September of that year until the time of his termination, however,
he was regularly employed 5 days a week by the Respondent. Throughout this same
period he continued to drive 1 day out of every 7 (on Thursdays) for the Hormel
Company.
The General Counsel contends that Reisner was laid off on March 13, 1959, and
never recalled because of his union activities. The Respondent denies any such
81 Hall's last trip was on April 10.
83 Prewitt was involved in two serious accidents during the period in question. On
January 28, he drove through a low underpass and tore 5 feet off the roof of his trailer.
Less than a week later, on February 3, Prewitt was in a serious wreck when he crashed
through the guard rail on a highway bridge. Damage to the bridge was estimated at
$30,000, the tractor cab was demolished, and the trailer required over $500 worth of re-
pairs. In contrast with the suspension accorded Hall, allegedly for two minor accidents,
it is significant that Dale Decker conceded that Prewitt was subjected to no disciplinary
action. In fact, in the weeks subsequent to his second accident Prewitt's earnings rose
substantially.
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discrimination. At one point in the record the Respondent appeared to dispute the
contention that Reisner had been terminated. On the other hand, it was undisputed
that March 13 was Reisner's last day of employment. Moreover, Dale Decker
testified that after March 17 Reisner was never called to take another run. During
his cross-examination, Loren Decker referred to a conversation had with this
employee as having occurred "Just a few days before he [Reisner] was laid off."
One of the office records which Dale Decker maintained on the drivers had the
following notation on Reisner as an entry for March 18:
Refused to make run to Ida Grove because he had to go to work for Hor-
mel. . . . Loren had to go to Ida Grove and he said not to use him again.
On these facts, I find that Reisner was laid off on March 18 and not recalled
thereafter.
The Respondent voiced no complaints about Reisner's work until mid-March.
On March 11, while on a trip from Sheldon, Iowa, to Fort Dodge, Reisner had
loaded a shipment of eggs and because some of the crates were stacked improperly
part of the load was damaged.33 On March 13, Reisner made his last run for
the Respondent. The following day Dale Decker complained to him about the
damage incurred on the shipment from Sheldon to Fort Dodge. Reisner acknowl-
edged that he had made a mistake in loading the eggs on his truck.34
Reisner testified that on March 17 he went to the Respondent's terminal and asked
Dale Decker if there was any work available. According to Reisner, the latter
answered in the negative, stated that business was "pretty slow," and added that
Reisner would have to ask Loren Decker about any further runs. Dale Decker
testified that at this time Reisner was at the terminal and, knowing that the Respond-
ent would need a driver for a run to Ida Grove, Iowa, on Wednesday and Thursday,
he (Dale Decker) asked Reisner whether he would be available. According to
Dale Decker, Reisner replied in the negative on the ground that he would be
working for Hormel's. Dale Decker testified that when he reported this conversa-
tion to his brother Loren the -latter declared "to with him [Reisner]. If
he doesn't want to work, don't ask him anymore." According to the Deckers, Loren
himself took the shipment to Ida Grove the next day and since that time Reisner
has not been offered any further employment.
Dale Decker testified that Reisner was not used subsequent to the above incident
because the employee had not been available when called on this occasion. On
the other hand, there was no evidence that Reisner was ever told that this was the
reason that he was not recalled. Reisner testified that on March 22 he returned
to the terminal where he asked Loren Decker about the prospects of returning to
work and proposed that if he could secure full-time employment at Deckers he
would resign the part-time job he still had at Hormel's. According to Reisner,
Loren Decker told him that he would have to discuss the matter with Dale. Reisner
further testified that Decker then turned the conversation to a discussion of the
Union and stated that his business was "running along pretty smoothly until this
came up" and further stated that he would sell his business rather than sign a con-
tract with the Teamsters. According to Reisner, Decker also stated to him, "I hear
you're doing a lot of talking at the union meetings, and the boys come back here
and tell me." Loren Decker did not deny having had a conversation with Reisner
at the time and place in question. He did deny having told Reisner that he would
sell his business before signing an agreement with the Union. On the other hand,
upon cross-examination, Loren Decker conceded that he discussed the Union with
Reisner only a short while before the latter was terminated.35 Reisner was a credible
witness. The conversation which he attributed to Loren Decker was similar to that
which the latter had had earlier with other drivers. Under these circumstances,
and in view of Decker's concession that he had discussed the Union with Reisner
at about this time, I find the employee's version of this conversation the more
credible.
13 Dale Decker estimated that about 105 cases of the 1.200 on the truck were damaged
He testified that the Employer incurred a net loss of about $400 on the shipment
34 Loren Decker was questioned about this incident, but did not appear to attach any
great significance to it Thus, he was asked the following question and gave the answer
which appears below :
Q You did have some talk with the employee Reisner about the load of eggs he
brought in?
A. Well, I didn't have too much about the eggs. I knew it happened and I asked
him about it, and he said, "well, it looks like I just goofed. I didn't take orders."
as Thus, Loren Decker testified, "I never talked to Reisner [concerning the Union] un-
til . . . just a few days before he was laid off."
DECKER TRUCK LINES 875
Reisner also testified that a few days after the above meeting with Decker he
returned to request, once more, that he be reemployed. According to Reisner,
Decker gave him a noncommital response and stated, "No, I don't think so. Not
right now." Decker did not deny having had the foregoing conversation. I find
that it occurred substantially as the employee testified.
Although at the hearing the Deckers appeared to attach great significance to the
fact that Reisner was unavailable for the trip to Ida Grove, the Respondent did not
explain why none of the part-time drivers were requested to take the run. More-
over, Dale Decker conceded that on various occasions in the past he had called
Reisner and learned that the employee was unavailable for a particular trip. In
none of those instances was the employee penalized for his unavailability. Since
Reisner regularly drove for another company on Thursdays, the Respondent could
not have been surprised to learn that he would be unable to work on the day in
question. Indeed, Dale Decker testified that after March 18 he did not reemploy
Reisner because he "could get other men to go to work." It is significant that al-
though at the hearing the Deckers testified that this employee had been terminated
for failure to take the assignment to Ida Grove, Reisner was never so informed.
Indeed, from the above findings it is apparent that after the Respondent had decided
to terminate Reisner, the Deckers continued to give the employee the impression
that he might be recalled.
Loren Decker had learned about Reisner's union affiliations in January. In a
conversation with Sherratt at that time, the employer had singled out Hall, Georg,
and Reisner as the employees whom he believed were responsible for the arrival
of the Union. By February 7, and as a result of the organizational campaign, eight
of the employees had signed cards. By mid-March, however, the Union's majority
had been thoroughly dissipated. Prewitt and Andreasen had signed the withdrawal
petition which Decker sponsored; Maurice Smith and Wayne Smith had quit; Sherratt
had cooperated with Decker in a move to get a contract to which the Union would
not be a party; and Hall, as found earlier, was being discriminatorily denied runs
and was about to quit. Only Georg and Reisner remained. In assessing the record
and the testimony with respect to this employee's termination, the foregoing facts
must be considered, and, in addition, (1) the testimony as to Loren Decker's con-
versation with Reisner in March, when the latter referred to the employee's union
affiliation and the reports Decker had received on his participation in union meetings;
(2) Decker's bitter dislike for the organizational efforts of his employees, manifested
by the antiunion campaign described herein; and (3) his failure to inform Reisner
of the reason which was later assigned for the employee's termination. In the light
of these facts, it is my conclusion, and I find, that the real cause for Reisner's
termination was the Respondent's desire to rid itself of one of the last union adherents
still on the payroll. In so doing , the Respondent violated Section 8(a)(3) and (1)
of the Act. N.L.R.B. v. Solo Cup Company, 237 F. 2d 521, 524-525, (C.A. 8);
N.L R B. v. Fisher Governor Company, 163 F. 2d 913, 914-915 (C.A. 8); N L.R.B. v.
The Glenn L. Martin-Nebraska Co., 141 F. 2d 371, 374 (C.A. 8); N.L.R.B. v.
Christian A. Lund, d/b/a C. A. Lund Company et al., 103 F. 2d 815, 819 (C.A. 8).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in and is engaging in unfair labor
practices, I will recommend that he cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act. Having found that
the Respondent discriminatorily terminated Carl Reisner on March 18, 1959, I will
recommend that the Respondent offer him immediate and full reinstatement without
prejudice to his seniority or other rights and privileges, and make him whole for any
loss of earnings that he may have suffered by payment to him of a sum of money
equal to that which he normally would have earned from the time of his discharge
to the date of the Respondent 's offer of reinstatement , less net earnings during said
period. I will also recommend that the Respondent make whole Earl Hall for any
loss of earnings suffered as a result of the discriminatory denial of work to this
employee from January 11, 1959, until he quit the Respondent's employ in April
1959. The backpay provided for herein shall be computed in accordance with the
formula stated in F. W. Woolworth Company, 90 NLRB 289.
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I will further recommend that the Respondent , upon reasonable request, make
available to the Board and its agents , all payroll and other records pertinent to an
analysis of the amount due as backpay.
Since I have found that the Respondent , by various acts, interfered with, restrained,
and coerced his employees in the exercise of the rights guaranteed in the Act, and,
particularly because the discriminatory discharge found herein goes "to the very
heart of the Act" ( N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532, 536 (C.A. 4),
and indicates a purpose to defeat the self-organization of his employees , I am con-
vinced that the unfair labor practices committed are related to other unfair labor
practices proscribed and that the danger of their commission in the future is to be
anticipated from Respondent 's conduct in the past . Accordingly , in order to make
effective the interdependent guarantees of Section 7 and thus effectuate the policies
of the Act , I will recommend that the Respondent cease and desist from in any
manner infringing upon the rights of employees guaranteed by the Act. May
Department Stores d/b/a Famous-Barr Stores v. N.L.R.B., 326 U.S. 376 , 386-392.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the Union is a labor organization,
all within the meaning of the Act.
2. All truckdrivers at the Respondent's terminal in Fort Dodge, Iowa, excluding
office clerical employees and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section
9(b) of the Act.
3. At all times since January 10, 1959, the aforesaid union has been the exclusive
representative of all employees in the aforesaid appropriate unit for the purposes of
collective bargaining within the meaning of Section 9(a) of the Act.
4. By refusing, on and since January 21, 1959, to bargain collectively in good
faith with the Union as the exclusive representative of his employees in the aforesaid
appropriate unit, and by unilaterally granting to his employees wage increases and
other benefits, the Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a) (5) of the Act
5. By discriminating in regard to the hire and tenure of employment of Carl
Reisner and by discriminatorily withholding work from Earl Hall, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
6. By interfering with, restraining, and coercing his employees in the exercise of
the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
8. The General Counsel has not proved by a preponderance of the evidence that
the Respondent: (1) refused to execute a contract which had been agreed to in
negotiations with the Union; or (2) interfered with, restrained, or coerced its em-
ployees, in the exercise of the rights guaranteed by the Act, except by the acts and
conduct found herein to have been violative.
[Recommendations omitted from publication.]
Tak Trak , Inc., and District Council of Painters #36, Brother-
hood of Painters, AFL-CIO. Case No. 21-CA-3648. August
24,1960
DECISION AND ORDER
On April 6, 1960, Trial Examiner Wallace E. Royster issued his
Intermediate Report 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 copy of the
128 NLRB No. 103.