Denver-Chicago Trucking Co., Inc.

National Labor Relations Board - Board Decisions

Aug 29, 1961

132 N.L.R.B. 1416 (N.L.R.B. 1961)

1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Denver-Chicago Trucking Company, Inc. and Emmet M. Kirk
Denver-Chicago Trucking Company, Inc. and Joe L. Foss. Cases
Nos. 13-CA-3346-1 and 13-CA-3347-2. August 29, 1961
DECISION AND ORDER
On January 5, 1961, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above-entitled proceedings, 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 Intermediate
Report attached hereto. The Trial Examiner also found that the
Respondent had not engaged in certain other unfair labor practicess
and recommended that the complaint be dismissed with respect to.
such allegations. Thereafter, the General Counsel and the Respondent
each filed exceptions to the Intermediate Report and submitted sup-
porting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Members Leedom, Fanning, and
Brown].'
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and finds merit in the Respondent's exceptions. Accordingly,
the Board adopts the findings of the Trial Examiner only insofar as
they are consistent with the following :
The Trial Examiner found that Respondent discharged Emmet
Kirk and David Timmerman in violation of Section 8(a) (3) and (1)
of the Act. We disagree. At the time these drivers were discharged
Local Union No. 710, International Brotherhood of Teamsters, repre-
sented Respondent's employees under a collective-bargaining contract
running from February 1, 1958, to January 31, 1961. Kirk was shop,
steward for Local 710 and Timmerman was a driver for Respondent
and a member of 710. The testimony relating to the cause for dis-
charge is sharply disputed by the parties and the issue of credibility
was resolved by the Trial Examiner in favor of the dischargees.
However, we do not consider it necessary to reach that issue.
The aforementioned collective-bargaining contract contained, in
articles VII and VIII, lengthy grievance provisions which need not
be set forth in full. That part of article VII, which is pertinent herein,
reads:
'The Respondent 's request for oral argument ' is' denied inasmuch as the positions of
the parties are adequately set forth in the record and the briefs.
132 NLRB No. 123.
DENVER-CHICAGO TRUCKING COMPANY, INC. 1417
SECTION 1. The operators and the Union in each of the follow-
ing states shall together create a permanent Joint State Committee
for such state: [the States are then named, Illinois being among
them]. The joint State Committee shall consist of an equal num-
ber appointed by Employers and Unions but no less than three
from each group. Each member may appoint an alternate in his
place. The Joint State Committee shall at its first meeting formu-
late rules of procedure to govern the conduct of its proceedings.
Each Joint State Committee shall have jurisdiction over disputes
and grievances involving Local Unions or complaints by Local
Unions located in its state.
* * * * *
SEc. 4. It shall be the function of the various committees above-
referred-to to settle disputes which cannot be settled between the
Employers and the Local Unions in accordance with the pro-
cedure established in Section 1 of Article VIII. [Emphasis
supplied.]
That part of article VIII, which is pertinent herein, reads :
SECTION 1. The Employer and the Union agree that there shall
be no strike, lockout, tie-up, or legal proceedings without first
using all possible means of a settlement, as provided for in this
Agreement, of any controversy which might arise. Disputes shall
first be taken up between Employer and the Local Union involved.
Failing adjustment by these parties, the following procedure
shall then apply:
(a) Where a Joint State Committee, by a majority vote, settles
a dispute, no appeal may be taken to the Joint Area Committee.
Such a decision shall be final and binding on both parties. [Em-
phasis supplied.]
Kirk and Timmerman were both discharged from Respondent's
employ as a result of telephone calls made by them from Angola,
Indiana., on May 23, 1959. Kirk was there because his truck had
broken down and he was waiting relief and Timmerman was en
route to Buffalo on a "single" run.' They met at the Round-Up Cafe.
According to Timmerman, he had stopped at his home in Gary after
leaving Chicago and found his wife unconscious on the floor. He
telephoned his dispatcher asking to be relieved of his run, a request
which was refused. After calling a doctor and a neighbor he con-
tinued until he met Kirk at Angola. Kirk telephoned Operations
Manager Nolte at Chicago and, according to Kirk, explained Tim-
merman's situation to Nolte and suggested sending relief for Tim-
2 Timmerman was sent out on this run without a helper, according to the dispatcher,
because none was available The dispatcher testified that the run required a helper and
that lie sent him out with some hesitation.
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merman. Nolte's version is that Kirk called and protested letting
Timmerman make the single run to Buffalo and, as shop steward,
refused to let Timmerman proceed. Nolte then discharged Kirk under
article III of the contract and, when Timmerman refused to continue,
told him he had quit. Article III of the contract provides, in part,
as follows :
Job stewards and alternates have no authority to take strike
action or any other action interrupting the Employer's business
in violation of this agreement, except as authorized by official
action of the Union. The Employer recognizes this limitation
upon the authority of job stewards and their alternates. The
Employer, in so recognizing such limitation, shall have the au-
thority to render proper discipline, including discharge without
recourse, to such job steward or his alternate, if he be an em-
ployee, in the event the job steward or his alternate has taken
unauthorized strike action, slow down or work stoppage in viola-
tion of this agreement.
Following their discharges the Union took their grievance to the
Joint State Committee, which heard the cases at a hearing on June 30
to July 1, 1959. The cases were presented by Mike Healy, the Union's
business representative, who customarily presented Local 710 cases.
Subsequently, the Joint State Board issued decisions in some 30
grievances heard on those days. In Case No. 23-G its decision read as
follows : '
The company is upheld in its discharge of Emmet Kirk for viola-
tion of Article III in that he took action beyond the authority
and duties permitted in such Article which action resulted in a
work stoppage and interruption of the company's business and
operation.
In Case No. 23-H its decision read :
The company is upheld in its termination of D. Timmerman for
willful and deliberate refusal to carry out a normal work assign-
ment to the point of rejecting his employment with the company.
Thus, we are confronted squarely with the question whether the
Board will honor the findings of the Joint Committee in accordance
with the principles of the Spielberg case.3 It is clear, however, that
the Board's jurisdiction over unfair labor practices is exclusive under
the Act and that the Board is not, therefore, bound by an arbitration
decision or by grievance procedures established by a collective-
bargaining contract between the parties. In the Spielberg case the
issue of the reinstatement of four strikers was submitted to arbitra-
tion by agreement between the Union and Respondent. A hearing
8 Spielberg Manufacturing Company, 112 NLRB 1080.
DENVER-CHICAGO TRUCKING COMPANY, INC. 1419
was thereafter. held at which three of the strikers appeared and testi-
fied and were represented by an attorney who submitted a brief on
their behalf. The Board held that it was clear that the strikers, as well
as-the Union, actively participated and acquiesced in the arbitration.
Distinguishing the facts in Spielberg from those in Monsanto Chemi-
cal Company, 97 NLRB 517, in which the decision of the arbitrators
was contrary to the statute, and from those in Wertheimer Stores
Corp., 107 NLRB 1434, where the arbitration proceedings were car-
ried out over the opposition of the individual involved, the Board con-
cluded in Spielberg :
In summary, the proceedings appear to have been fair and regu-
lar, all parties had agreed to be bound, and the decision of the
arbitration panel is not clearly repugnant to the purposes and
policies of the Act. In these circumstances we believe the desir-
able objective of encouraging the voluntary settlement of labor
disputes will best be served by our recognition of the arbitrator's
award.
The question presented here is whether the proceedings before the
Joint, Committee meet the Spielberg standards of fairness and regu-
larity. We note that both Kirk and Timmerman testified, at the
Board hearing, that they had not been given a fair hearing before
the Joint Committee. Kirk testified that he had.not been given an
opportunity to state his case in full but had been interrupted while
the Joint Committee interrogated one of his witnesses. He also testi-
fied that the Joint Committee gave him and his witness a "tongue
lashing." (No reason nor explanation was given for this by Kirk.)
He also stated that he tried to present a doctor's certificate certifying
Timmerman's wife was sick on the date Timmerman was fired but
that the Joint Committee refused to accept it on the ground they ac-
cepted the fact that his wife was sick. Kirk was asked to leave the
room while his case was being decided and recalled when the Joint
Committee announced its decisions in all the Denver-Chicago cases.
When his decision was announced, Kirk inquired as to the reasons
and was told, "That's none of your business," after which he was led
from the room.4
Timmerman's testimony was that he attended the hearing and that
Union Representative Healy and Kirk were present, that he was asked
no questions and made no request to speak, and that he made no pro-
• Kirk testified that he had appeared at a Joint Committee hearing as a grievant follow-
ing discharge by the Respondent only a few months before the instant hearing At that
time be stated he listened to the Company 's witnesses , told his own story, was told to leave
the room while the Joint Committee deliberated , was called back when the decision was
announced , and was awarded reinstatement and backpay. He directed no complaint to
the fairness of this hearing before the same Joint Committee . Kirk also testified that
during the period he was union steward he had occasion to file grievances before the
Joint Committee and that he had been upheld in 98 percent of the cases.
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
test during the hearing. After the hearing he asked if "we were sup-
posed to speak up" but it is not clear to whom he addressed this
remark except that it was not addressed to either Healy or any mem-
ber of the Joint Committee. Healy, who presented the cases for Kirk
and Timmerman, was not called by the General Counsel as a witness.
The General Counsel admitted Healy was available.
The Respondent called Barney Cushman, president of Cushman
Motors Company, to testify to the procedure of hearings before the
Joint Committee. Cushman, who had been a member of the Joint
Committee for 18 years, described the Joint Committee's procedure as
follows :
We first listened to the driver's story, as presented by him or his
business agent, or both, hear all of the evidence. The driver is
then requested by any member of the committee-he is then ques-
tioned by any member of the committee on the evidence as pre-
sented and then the employer presents his side in exactly the same
manner. When the employer gets through with the presentation,
every member of the committee is afforded an opportunity to
question him on any subject during the,testimony as presented.
When the testimony is all in, all the principals are requested to
leave the room, and the committee goes into executive session.
At that time we go over all of the evidence as presented by both
sides, and it takes a majority to get a decision, a majority of 4
votes out of 6.
Cushman testified that he had no recollection as to whether he sat
on the panel which decided the Kirk and Timmerman cases which is
not strange in view of the fact that the grievance hearings took place
more than 9 months prior to his testifying in the present Board hear-
ing and the Kirk and Timmerman cases were only 2 of some 30 heard
at the June meeting of the Joint Committee. (The Joint Committee
met once a month.) In fact, the Trial Examiner discounted the griev-
ance procedure on the ground that 30 cases had been heard in 2 days
whereas the Board hearing in the instant case took 5 days.5 Since the
two other criteria of Spielberg were clearly met, i.e., the parties had
participated and agreed to be bound (no claim of reservation was made
by either Kirk or Timmerman) and the decision of the panel was not
repugnant to the statute, we are confined to passing on the sufficiency
of the hearing. In so doing we note that the grievance procedure had
been followed by the parties for 18 years and that it presumably satis-
fied both the employers and the unions as serving its purpose. We
also note that no claim was made by either Kirk or Timmerman that
a The Board hearing, however, embraced many issues besides that of the discharge of
Kirk and Timmerman and included an exhaustive history of the relations between
Respondent and Kirk as shop steward during the 9 months he held that position.
DENVER-CHICAGO TRUCKING COMPANY, INC. 1421
.the hearings in their cases differed procedurally from established prac-
tice nor • was any claim of collusion asserted. Under these circum-
stances, failure to adopt the decision of the Joint Committee would
imply an obligation to fix standards of formality in procedure on the
part of grievance and arbitration panels which must be met before
their awards could receive endorsement. We consider it enough
under Spielberg if the procedures adopted meet normal standards as
to sufficiency, fairness, and regularity. As to these, each case must
rest on its own bottoms. Where, as here, the parties have found that
the machinery which they have created for the amicable resolution of
their disputes has adequately served its purpose, we shall accept such a
resolution absent evidence of irregularity, collusion, or inadequate
provisions for the taking of testimony.6
ORDER
Upon the entire record in this 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, Denver-Chicago
Trucking Company, Inc., its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Promising benefits to its employees or threatening them with
reprisals, including threats of physical violence, for engaging in
activity upon behalf of Local Union No. 710, International Brother-
hood of Teamsters, or any other labor organization.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-organization,
to form labor organizations, to join or assist the aforesaid Union or
any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, and to refrain from any or all such activities, except to
the extent that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employment as
authorized by Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the purposes of the Act :
9 We do not agree with the Trial Examiner that it is essential that a public member
sit on grievance panels and we note that in the instant case the General Counsel stipu-
lated that there was balanced representation on the Joint Committee which heard the
Kirk and Timmerman cases. See also Max B. 0scherwitz, et al, doing business as
1. Oscherwitz and Sons, 130 NLRB 1078 ( Member Kimball dissenting ) ; International
Association of Machinists , AFL-CIO, et al. (The New Britain Machine Company), 116
NLRB 645; Consolidated Aircraft Corporation, 47 NLRB 694, enfd . as mod. 141 F. 2d
785 (CA. 9).
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Post at its office in Chicago, Illinois, copies of the notice
attached hereto marked "Appendix." 8 Copies of said notice, to be
furnished by the Regional Director of the Thirteenth Region, shall,
after being duly signed by Respondent's representative, 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 its 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.
(b) Notify the Regional Director of the Thirteenth Region, in
writing, within 10 days from the date of this Order, what steps have,
been taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that the complaint herein be dis-
missed insofar as it alleges that the Respondent has engaged in any
unfair labor practices in violation of Section 8(a) (1) and (3) except,
as specifically found above.
8 In 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."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, as modified by the Labor-Management
Reporting and Disclosure Act of 1959, we hereby notify our employees
that :
WE WILL NOT promise benefits to our employees or threaten them
with reprisals,. including threats of physical violence, for engag-
ing in activity upon behalf of Local Union No. 710, International
Brotherhood of Teamsters, or any other labor organization.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their rights to
self-organization, to form labor organizations, join or assist the
aforesaid Teamsters or any other labor organization, to bargain
collectively through representatives of their own choosing, or 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, except to the extent that such rights
may be affected by an agreement requiring membership in a labor
organization as authorized by Section 8(a) (3) of the National
Labor Relations Act, as amended, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
DENVER-CHICAGO TRUCKING COMPANY, INC. 1423
All our employees are free to become or remain , or refrain from
becoming or remaining, members of the aforesaid Teamsters, or any
other labor organization , except as provided under Section 8(a) (3)
of the National Labor Relations Act, as amended , modified by the
Labor-Management Reporting and Disclosure Act of 1959.
DENVER-CHICAGO TRUCKING COMPANY, INC.,
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
Upon separate charges duly filed on July 6, 1959 , by Emmet M . Kirk and Joe L.
Foss, individuals , the General Counsel of the National Labor Relations Board, here-
inafter called the General Counsel 1 and the Board , respectively , by the Regional
Director for the Thirteenth Region ( Chicago , Illinois ), issued its consolidated com-
plaint dated February 18, 1960, against Denver-Chicago Trucking Company, Inc.,
herein called the Respondent . The consolidated complaint alleged that the Re-
spondent had engaged in and was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and ( 3) and Section 2(6) and (7) of
the Labor Management Relations Act, 1947, as amended , herein called the Act.
Copies of the charges , consolidated complaint , and notice of hearing thereon were
duly served upon the Charging Parties and the Respondent.
Respondent duly filed its answer admitting certain allegations of the complaint but
denying the commission of any unfair labor practices.
Pursuant to notice of hearing , a hearing thereon was held at Chicago , Illinois, from
April 11 to and including April 15, 1960, before the duly designated Trial Examiner
and was reopened on June 16 , 1960 , in accordance with certain conditions laid down
by the Trial Examiner on April 15, 1960, while permitting the Respondent to intro-
duce certain evidence through inadmissible means. All parties appeared at the hear-
ings, were represented by counsel, and were afforded full opportunity to be heard,
to produce , examine, and cross-examine witnesses , to introduce evidence and ma-
terial pertinent to the issues , and were advised of their right to argue orally upon
the record and to file briefs and to propose findings and conclusions or both. Oral
argument was waived. Briefs were received from the General Counsel and the Re-
spondent on July 18, 1960.
Upon the entire record in the case, and from his observation of witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1 I. BUSINESS OF RESPONDENT
The complaint alleges, Respondent admits, and the Trial Examiner finds that
Denver-Chicago Trucking Company, Inc ., is, and at all times material herein has been,
a Nebraska corporation with its principal office in Denver, Colorado, and with an
office and terminal located in Chicago, Illinois, the facility involved herein; Re-
spondent is a common carrier and , in the course and conduct of its business and
operations during the calendar year 1958, a representative period, transported and
delivered large quantities of products from points located outside the State of Illinois
to points located within the State of Illinois , and/or from points located within
the State of Illinois to points located outside the State of Illinois for which it
received in excess of $2,000,000 ; Respondent , in the course and conduct of its
business operations during the calendar year 1958, a representative period, trans-
1 This term specifically includes the attorney appearing for the General Counsel at
the hearing
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ported and delivered large quantities of products within the State of Illinois for firms
engaged in interstate commerce, for which it received in excess of $2,000,000.
The Trial Examiner finds that Respondent is engaged in commerce.
II. THE UNION INVOLVED
Local Union No. 710, International Brotherhood of Teamsters, hereinafter referred
to as the Union or Local 710 , is, and at all times material herein has been , a labor
organization admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The facts
In the year 1958 Respondent's drivers were represented by Local 710 and, at least
from February 1958 throughout the period of this dispute, were covered by the "Over-
The-Road Motor Freight Agreement," a comprehensive collective-bargaining agree-
ment between Local 710 and a number of motor freight companies, of which Respond-
ent was one. This agreement covered the wages, hours, and working conditions of the
Respondent's employees who drove for the Respondent from Chicago eastward.
Among other fringe benefits contained in this contract was one on "call time"
providing that drivers called for work and reporting as ordered should receive full pay
from that time 2 or,,if not put to work, would be guaranteed 4 hours' pay.
Respondent was not observing this call-time provision of the contract in March
1958. In that month drivers Joe Foss and Robert Butler circulated among their
fellow drivers a petition reading: "Petition to get call time back according to the con-
tract." When Respondent was told of this Foss petition by the driving partner of the
then union steward, Claybourne, William Bowen, Respondent's Chicago personnel and
safety manager, suggested to him the possibility of the circulation of a counter-
petition to the Foss petition. The next day such a counterpetition was in fact circu-
lated by Claybourne among Respondent's drivers. Among the 91 drivers of the Re-
spondent who executed the Foss petition was driver Emmet M. Kirk who was first
hired in 1957 by Respondent's then operations manager, Frank Tomasek, who told
Kirk at that time that "We will get along just fine unless you get into any union
activities," but that, if Kirk did become so engaged, "you will last just about as long as
a snowball in hell." 3
Shortly after having signed the Foss petition, Kirk was asked by Claybourne to
sign his counterpetition. Kirk refused. The next morning Bowen and Tomasek
called Kirk into their office and threatened that, unless Kirk signed the Claybourne
petition, he would be laid off, drivers would have to be transferred out of Chicago,
and drivers' pay would be cut to $100 per week. Kirk maintained his refusal.
Upon leaving Bowen's office Kirk complained to Business Agent Mike Healey of
Local 710, about Respondent's coercive attempts to force drivers to sign the Clay-
bourne petition. Healey called Respondent on the telephone. When Kirk returned
to the terminal, he learned that Bowen and Tomasek were threatening driver Mackeley
with possible discharge because they apparently believed Mackeley had reported
their actions regarding the Claybourne petition to Healey. Kirk thereupon promptly
reported that he-not Mackeley-was the one who had reported the matter to Healey
causing the telephone call from Healey to the Respondent.
In the late summer of 1958 Kirk made a claim for breakdown pay to Tomasek who
refused Kirk the pay provided in the contract but offered to give him one of the Re-
spondent's choice runs to Bergen, New Jersey. When Kirk complained, Tomasek
inquired if Kirk and his partner wanted to get into the "same boat" as Foss and
Butler whom Tomasek said he had orders to fire because of their strict adherence to the
contract. When Kirk took the grievance to steward Claybourne, Claybourne stated
that the men were not entitled to such payments as the drivers had not been collecting
them heretofore, and refused to process the claim. On another claim made by Kirk
and refused by Tomasek, Tomasek explained, "We just don't pay [such claims],"
explaining that Respondent had a different agreement with its union steward than that
provided for in the contract.
As a result of an election Kirk became the Local 710 steward for Respondent's
drivers on December 8, 1958, thereby replacing Claybourne in that position
A few days after his election Bowen told Kirk that he understood that Kirk had
been elected steward and said, "I would like to know about how you are going
2 In the parlance of the industry such drivers would be "on the clock."
3 Tomasek's employment with Respondent ceased on April 1, 1959 He did not testify
He was not shown to be unavailable. However the 0 months' limitation of Section 10(b)
of the Act prevents the finding of any unfair labor practice based upon this testimony
DENVER-CHICAGO TRUCKING COMPANY, INC. 1425
to handle this barn. . . There is a couple of ways to handle it, without trouble."
When Kirk answered that he would like Respondent to start paying the fringe ben-
efits under the contract and give fair dispatch of both drivers and runs, Bowen
answered that he "had in his files an agreement that was signed by Mr. Claybourne
against collecting the fringe benefits of the contract. . Mr. Claybourne had no
trouble. He runs Bergen 4 most of the time, makes a lot of money" and offered to
show Kirk the signed agreement, an offer which Kirk refused.
About December 18-19, 1958, Kirk was on the road teamed with a man whom
Kirk considered to be an incompetent driver after a few near accidents. He com-
plained over the telephone about the man to Bowen and, on Bowen's orders, paid the
man off and drove "single," i.e., without a relief driver, into the Chicago terminal.
Upon arrival Bowen discharged Kirk for having discharged the other driver. How-
ever, after Healey called the Respondent over the telephone, Kirk was reinstated .5
Soon after becoming union steward, Kirk began receiving claims from the Re-
spondent's drivers for remuneration under the many fringe benefits contained in the
contract. He soon had what he described as "a basket full" of such claims. But Kirk
could find no one at the Chicago terminal who would even discuss such claims with
him. Bowen in effect confirmed Kirk's testimony on this point when he testified
that it seemed to him that Kirk was "always" in his office on various grievances and
disputes. Finally through a telephone call to the Denver headquarters a meeting
between the Respondent and Local 710 for the purpose of discussing these claims
was arranged for February 1959.
This February meeting was attended by Nick Catsmas, Respondent's vice president
in charge of labor relations, Martin, Chicago terminal manager, Bowen, and two
other Denver officials, and for the Union by Healey, Business Agent Janopoulos, and
Kirk. After Healey had threatened a strike over these claims, Catsinas replied for
the Respondent saying that Respondent recognized that it had made a mistake
and was ready to clear up the claims. The result of this meeting was that the
Respondent paid out $10,000 to $12,000 on the claims presented.
Soon after this meeting Tomasek and two dispatchers left the Chicago terminal of
the Respondent. About April 1, William Nolte became the operations manager at
the Chicago terminal replacing Tomasek.
Towards the end of February 1959, Bowen called Steward Kirk to his office and
presented him with some 14 rules changes which he stated Respondent wanted to put
into effect for the drivers going eastward from Chicago. Kirk expressed his disap-
proval of these new rules.
Early in March 1959, Bowen again discussed his proposed new rules with Healey
and Kirk telling Healey that Kirk had agreed to these new rules but would not sign
them. Healey gave Kirk permission to sign the, rules but Kirk objected that the
drivers should be the ones to approve or disapprove them. It was agreed that Kirk
would talk to the drivers about the new rules, especially as Bowen suggested that
Respondent would not send the new equipment which it had promised during the
February meeting until these new rules were agreed to. Thereafter, Kirk did present
these proposed rules to the drivers but expressed his own personal opinion that
accepting them would prevent the collection of any fringe benefits under the contract.
Later when Kirk admitted to Bowen that he had not gotten one driver to agree to
accept these proposed rules, Bowen accused Kirk of defeating the rules and ordered
him to cease working on them.
April 14 6 drivers Black and Bland suffered a tractor breakdown about 9 miles
from Angola, Indiana.' When the drivers reported the breakdown to the Chicago
dispatcher, along with the fact that the garage reported to them that it would take
until 11 p.m. or midnight to repair, the dispatcher told them that they were "off the
clock," i.e., were at liberty without pay. Bland went to a hotel where he registered
in both names so that the garage would be sure to reach him no matter which name
they used in the event of any communication for them from the Chicago dispatcher.
Black departed saying that he would be back about 11 p.m. Prior to 11 pm. the
4 The run to Bergen, New Jersey, was reputed to be the easiest and best paying of the
Respondent 's runs out of Chicago.
5 The charges in the instant case were filed on July 6, 1959. Therefore the findings
made above, none of which were denied, being of events occurring more than 6 months
prior to the filing of the charges , cannot under Section 10 ( b) of the Act be made the
basis of an unfair labor practice finding. But the facts above found are admissible for
such other purposes as proof of Respondent 's knowledge of union activities , antiunion
animus, and explanation of subsequent events. The findings above made have been made
for such limited purposes here.
6 All dates hereinafter will be in the year 1959 unless otherwise specified.
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's dispatcher gave Bland orders to bring another recently repaired tractor
into Chicago with or without Black depending upon whether he could be located.
After a considerable mixup and confusion in orders caused by Black's absence, Bland
and Black got together again at a truck stop and called Kirk, their steward, to find
out whether or not the contract did not provide for an 8-hour rest after a driver had
been "knocked off the clock." Kirk agreed that the contract did so provide and
advised against moving either tractor until that full 8-hour period had elapsed. As
events turned out Bland and Black did not start to bring the recently repaired tractor
to Chicago until late on the afternoon of April 15, arriving in Chicago just at quitting
time when they received orders to report to Bowen in the morning of April 16, at
9 a.m.
Also sometime on April 14 the driving team of Guerink and O'Neal reported to
Kirk that one of Respondent's officials had refused them permission to bring their
own bedding for a scheduled trip into the terminal in their automobile, as they had
done many times previously, so as to store it aboard the tractor they were to use.
Because of this action by Respondent, Guerink and O'Neal insisted that the Respond-
ent live up to the terms of the contract which provided specifically that the employer
should provide bedding. Although agreeing that the contract so provided, Kirk in
turn consulted Healey on the bedding question, who concurred that the men had
the right to have the employer provide the bedding and telephoned Respondent
(Nolte) about the matter threatening to close the barn unless Respondent supplied
the bedding as per contract. Healey then orally authorized Kirk to close the barn
unless the bedding was so supplied. About 1:30 a.m.,on April 15 Guerink and
O'Neal refused to move their tractor on their scheduled trip until Respondent sup-
plied the bedding. Kirk was notified and immediately went to the terminal. Bowen
told Kirk that he was going about the matter in the wrong manner suggesting that
a grievance should be filed but the men should proceed on their trip. Kirk agreed
that perhaps Bowen was right and stated during the conversation that he "could
spring the men in 5 minutes." In fact, Kirk did prevent other drivers from refusing
to proceed on their assignments because Respondent had not supplied bedding.
However, Guerink and O'Neal refused to move until the bedding was supplied.
On the morning of April 15 Bowen interviewed Guerink and O'Neal inquiring
specifically as to what part Kirk had played in the episode and suggesting that the
men had refused to move on Kirk's orders. However, Guerink insisted that he,
Guerink, alone had instigated the refusal to move and refused to sign any statement
implicating Kirk in any way other than that Kirk had advised as to the terms of the
contract. Bowen took no written statement from either of the drivers.
Bland and Black arrived for their scheduled interview with Bowen at 9 a.m.
that morning and were promptly ushered into an office with Bowen and Nolte. The
drivers originally refused to be interviewed until Kirk appeared but finally, when
Nolte reported that he had received a telephone call from Kirk in which Kirk had
stated that he had another meeting for that morning and for the men to proceed
without him, agreed to proceed. Actually Kirk had arrived at the office a few
minutes after 9 and had asked the office girl and Dispatcher Vince Flynn to notify
Bowen that he wanted to be admitted to the meeting but in each instance Kirk was
refused?
As in the prior interviews with Guerink and O'Neal, Bowen's questions to Black
and Bland were directed to the part which Kirk had played in the episode. Both
men admitted that Kirk had been called for his advice as to whether or not the
contract provided that a driver who was "knocked off the clock" was entitled to 8
hours' rest before the employer could order him to resume driving. Both agreed
that Kirk had advised them that the contract so provided. The Bland affidavit
contains the following statement:
We then called Kirk back and Kirk instructed us to take eight (8) hours as
we were breaking the contract if we drove the rig without having eight (8)
hours off. He then told us to wait until we had eight (8) hours and then to
call the dispatcher and tell him we were ready to go back to works
7 Although there was a dispute on this point between the parties, Respondent did not
see fit to call either Flynn or the office girl as witnesses. Flynn would have been the
important witness on this as well as other phases of the case. '
8 This call to Kirk was made only 2 hours before the expiration of the contractual
8-hour rest period. ' Hence this advice at most could have caused only a 2-hour delay.
As a matter of fact it was a number of hours after the expiration of the 8-hour period
before Black and Bland finally received orders from the dispatcher to proceed to Chicago.
DENVER-CHICAGO TRUCKING COMPANY, INC. 1427
Unlike the interview with Guerink and O'Neal, Bowen had the statements of Black
and Bland reduced to writing and executed before a notary public.
At 5:02 p.m., April 16, Bowen telegraphed Kirk as follows:
THE COMPANY RESERVES THE RIGHT TO SUSPEND YOU FROM
DUTY FOR A PERIOD OF 60 DAYS EFFECTIVE THIS DATE BECAUSE
OF YOUR ACTIONS AT APPROXIMATELY 11:30 P.M. 4-14-59 WHEN
YOU WITHOUT AUTHORIZATION CALLED A WORK STOPPAGE BY
A DRIVER TEAM AT ANGOLA, INDIANA.
At 5:12 p.m. Bowen again telegraphed Kirk as follows:
THE COMPANY AS A RESULT OF YOUR ACTIONS AT APPROXI-
MATELY 1:30 A.M. 4-15-59 WHEN YOU WITHOUT AUTHORIZATION
CALLED A WORK STOPPAGE OF TWO DRIVER'S TEAMS AT CHI-
CAGO, THE SECOND SUCH UNAUTHORIZED WORK STOPPAGE
WITHIN 30 HOURS HAS NOW RESULTED IN YOUR DISMISSAL FROM
OUR EMPLOY EFFECTIVE IMMEDIATELY.9
The Kirk discharge was made the subject of a grievance against Respondent
before the Joint State Committee, an arbitration board consisting of equal employer
and union representation set up under the over-the-road contract to handle disputes
arising under that contract. The case was heard by the Joint State Committee at
its April 28 meeting . The award ordered the immediate reinstatement of Kirk
with full backpay. Respondent complied therewith.
Although Respondent reinstated Kirk promptly in accordance with the decision of
the Joint State Committee, Respondent and Kirk did have trouble over the determina-
tion of the amount of backpay due him under that award. During these negotiations
Catsinas who apparently came in from Denver for the negotiations informed Kirk
that Respondent would prefer it if he spent more of his time driving. Nolte, who
had replaced Tomasek on April 1, was more explicit telling Kirk that the Company
wanted him to stay on the road more so that he would be unavailable to process
driver grievances. Prior to the time that the amount of backpay was agreed upon,
Bowen again requested Kirk to approve of his proposed new working rules. Also
during this period Nolte suggested to Kirk that he, Nolte, was going to need an as-
sistant night manager at the terminal and offered him the job which Kirk refused.
Nolte then suggested that Kirk could get the desirable Bergen run if he would abandon
his vigorous prosecution of driver claims at the terminal. Finally outside the ter-
minal restaurant Nolte walked up to Kirk and said, "Kirk, if I can't beat you mentally,
I can do it physically." Kirk answered, "Well, I don't fight." To which Nolte
replied, "Neither do I, but I know men down in town." 10
By this time Kirk and Healey were having weekly meetings with Respondent's
officials in order to take care of various claims and grievances filed by the drivers.
The last episode in this drama occurred on May 23, 1959. On the morning of that
day driver Timmerman left the Chicago terminal on a run to Buffalo as -a "single,"
i.e., without a relief driver and on a "roll and sleep" basis. On his way out of
Chicago he stopped as usual at the motor camp where he and his family lived.
He discovered his wife unconscious on the floor. It seems that Mrs. Timmerman
had been under a doctor's care for a blood ailment for a long period of time
Timmerman telephoned Dispatcher Steve Orishak asking that he be relieved of his
assignment , because of his wife's condition. This request was refused 11 Timmerman
9 Although Nolte admitted that on April 14 Healey notified him that Respondent would
be struck unless it supplied bedding, he testified that he first so notified Bowen late on
April 16, presumably after the above telegram had been sent. Nolte gave no explanation
for this delay.
10 This threat of physical violence was corroborated by another of Respondent's drivers
who overheard Nolte's remarks. Nolte and Bowen denied making or hearing any of the
above-found offers, inducements , or threats made to Kirk In view of the previous and
somewhat similar requests, suggestions, and offers made to Kirk which Respondent's
officials failed to deny, these denials were not convincing These particular statements
appear too much in the same familiar pattern for there to be too much doubt that they
were made as found above
11 Orishak, the only dispatcher to testify, denied receiving any telephone call from
Timmerman that morning He was very definite He was just as definite in his testi-
mony that he had never spoken to any of Respondent's officials or attorneys about his
testimony at the hearing. This stubbornness embarrassed Respondent's attorneys who
acknowledged that, in fact, Nolte had conferred with Orishak about his proposed testi-
614 913-6 2-v of 132--91
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that he then called the doctor and was told that he could not get Mrs. Tim-
merman into the hospital until 8 a.m.12 Timmerman thereafter made arrangements
with the wife of a fellow driver, Shockey, to get Mrs. Timmerman to the hospital or
to the doctor that morning. Thereupon Timmerman continued on his run.i3
Between 11 a.m. and noon that day Timmerman arrived at the Round-Up Cafe
in Angola, Indiana, a regular truckers' stop, where a number of Respondent's
drivers happened to have congregated on this occasion. Kirk, whose tractor had
broken down not far away earlier that morning and who had been ordered by the
dispatcher to "stay on the clock" despite the fact that he had not had sleep since
the morning of May 22, was also at the cafe. Timmerman informed Kirk of having
found his wife unconscious and of wanting to return home on that account. Kirk
promised to help. He telephoned to Nolte.
There are two separate and distinct versions of this conversation: Nolte's and
Kirk's. According to Nolte's version of the conversation, Kirk berated Nolte for
having sent Timmerman out on a trip to Buffalo as a "single," and said that he,
Kirk, had ordered Timmerman to cease driving until he had a relief driver with him.
According to this same version, Nolte then spoke to Timmerman who stated that
he was refusing to proceed on the orders of his shop steward, Kirk. Thereupon
Nolte discharged both Timmerman for abandoning his trip on the road and Kirk
for instigating an unauthorized work stoppage.
According to Kirk's and Timmerman's version of this telephone conversation,
Kirk explained Mrs. Timmerman's condition to Nolte and suggested several alterna-
tives by which Timmerman could return to Chicago while other drivers took Timmer-
man's truck to Buffalo. Both Kirk and Timmerman agree that neither of them
could succeed in getting their ideas across to Nolte as Nolte appeared obsessed
with the idea that Timmerman's trip was a "single." Both agree that they were
discharged before the call ended.
The Trial Examiner has credited the testimony of Kirk and Timmerman in' this
conflict for reasons more fully explained, infra. But it developed in the testimony
of Nolte that, at his suggestion, Dispatcher Vince Flynn had listened in on the con-
versation on a telephone extension line. However, Respondent did not call Flynn as
a witness. He was not shown to be unavailable. Therefore, it is a fair inference
that Flynn's testimony would have been unfavorable to the Respondent.
That afternoon Respondent, over the name of William Nolte, sent the following
telegram to Kirk:
On May 23, 1959, at 12:15 p.m. at the Round Up Cafe Rural Route 4 and
Route 20 Angola, Indiana, you caused an unauthorized work stoppage as cov-
ered by Article III of the contract by ordering Driver D. Timmerman not to
proceed further with his original dispatch from Chicago to Buffalo with Tractor
542 Trailer 1417 This was the second unauthorized work stoppage caused by
you within the past 60 days. Accordingly we discharged you from our service
as of May 23, 1959, as covered by Article III of the Over The Road Motor
Freight Agreement. This will confirm that action.
At this point a collateral matter was brought in by the Respondent when through
its office manager, Roy Bronkema, it sought to prove that he had seen the hospital
records which showed that Mrs. Timmerman was first admitted to the hospital at
5:40 p.m. on May 23, 1959. Admittedly this method of proof was improper. The
mony before the hearing. Generally "old chestnuts" like this have little effect upon a
witness' credibility. In this case, however, Orishak's stubborn refusal to be straightened
out cast doubts upon Orishak's reliability.
' Neither side called the doctor as a witness. However, the Respondent's brief states :
If the doctor had been permitted to testify, he would state that he was in surgery
at the time Mr. Timmerman claims to have spoken to him. He would testify further
that if contacted about an unconscious person at that time he can think of no reason
why he would have told her family to wait until 8 a.m, before bringing her to the
hospital
This "offer of proof" dehors the record, if it may be called such, is interesting in that
it contains no denial by the doctor that he received a call from Timmerman-only that he
was in surgery at the time Timmerman claims to have spoken to him, an hour which was
highly indefinite in the record The second sentence of this so-called offer is equally
interesting for its indefiniteness
The doctor could have been called as a witness on June 16, 1960.
^ Timmerman impressed the Trial Examiner as an inexperienced young man doing his
best to be an honest witness but with a limited and untrained memory.
DENVER-CHICAGO TRUCKING COMPANY, INC. 1429
Trial Examiner permitted Bronkema to testify to what he had seen on the hospital
records but provided that the record in this case should remain open so that the
General Counsel could check the accuracy of the testimony and produce any testi-
mony of explanation he cared to produce. It was for this reason that a further
hearing was held on June 16, 1960.
At the reopened hearing Mrs. Timmerman testified that she and Mrs. Shockey
had visited the doctor's office on the morning of May 23, after which the doctor
had sent her home She further testified that upon receipt of the telegram dismissing
her husband that afternoon, she became hysterical and and took an overdose of
sleeping pills after which she was rushed to the hospital to have her stomach pumped.
Mrs. Shockey, who took her to the doctor's in the morning and to the hospital around
5.40 p.m., confirmed these facts.
The discharges of Kirk and Timmerman were presented to the Joint State and
Local Arbitration Committee at Chicago at its meeting of June 30 to July 1, 1959.
The decision of that body was to uphold the Company in both actions.14
Neither Kirk nor Timmerman has since been reinstated.
On June 8, 1959, Joe Foss, with Robert Butler as his partner, was driving a
Denver-Chicago tractor and trailer in an easterly direction on Route 20 near the
city of Chesterton, Indiana, at a speed of approximately 35 miles an hour on a
four-lane highway. After passing a slow-moving passenger car Foss turned his
tractor and trailer back into the outside lane. At or about this time the tractor and
trailer went out of control with the result that, when the action was over, the trailer
had become detached from the tractor and was lying on its side with its, nose pro-
truding into the right hand lane of traffic while the tractor was still on its four
wheels but headed in approximately the opposite direction from that in which it
had been traveling and was standing approximately in the middle of the highway.
Denver-Chicago trailers are attached to the tractors by means of what is called
a fifth wheel attachment whereby a pin from the trailer is slid into and locked into
the fifth wheel which, in turn, is attached to the frame of the tractor. When this
accident was over the fifth wheel had become detached from the tractor and re-
mained attached to the trailer.
After the accident Foss sent his partner, Butler, who had been slightly injured in
the accident to the hospital while he and a motorcycle patrolman police officer went
before Justice of the Peace Pomeroy where Foss was charged with, and pleaded
guilty to, driving defective equipment.
Foss also promptly notified Bowen of the accident. Bowen appeared at the scene
about 9:45 p.m. and proceeded to the office of the justice of the peace where the
justice apparently marked the charge of driving defective equipment as "judgment
withheld."
Following this all parties, including the justice, sat down for a cup of coffee during
which Foss remarked to Bowen, "Well, I suppose I am fired." Bowen answered,
"As far as I am concerned, no," and then told Foss to go home and get some rest.
The next morning Bowen investigated the wreck further, returned to the Chicago
terminal, and sent Foss the following wire over his name:
Recklessness resulting in a serious accident while on duty the evening of June 8,
1959, near Chesterton and on Route 20 has now resulted in your dismissal from
our employ.
The Foss discharge was also made the subject of a grievance before the Joint
State Committee on June 30 to July 1, 1959. The judgment of that body upheld
the Company 's dismissal of Foss.
Conclusions
1. Kirk-Timmerman
Respondent hired Kirk in 1956, with the admonition that so long as he was honest
and stayed clear of union activity, everything would be fine-otherwise he would
not last longer "than a snowball in hell." Kirk had no trouble until over a year had
passed.
Then on December 8, 1958, Kirk was elected union steward. In congratulating
Kirk on his election as steward, Bowen asked him how he intended to handle his
job and remarked that there were a couple of ways he could handle the job as
steward "without trouble." Kirk emphatically indicated that he was not amenable
14 Respondent does not contend that these arbitration awards by the Joint State Com-
mittee are binding upon this Trial Examiner or the Board but only contends that they
ate elements to be considered along with other facts
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to one of the ways suggested by Bowen and practiced by the preceding steward:
waiving the collection of payments of fringe benefits under the existing collective-
bargaining agreement.
About 10 days later, December 18 or 19, 1958, Bowen discharged Kirk for the
first time. On this occasion a word from the business agent of Local 710 proved
sufficient to secure Kirk's prompt reinstatement. Apparently this was merely a
"word to the wise."
In February 1959, Kirk pressed for and by persistence ultimately succeeded in
collecting between $10,000 and $12,000 worth of claims made by various of Respond-
ent's drivers for fringe benefits under the contract. A goodly portion of these claims
were paid on or about March 9, 1959.
At this same time Bowen requested Kirk, as steward, to accept some 14 proposed
rules changes. Kirk objected to these changes although the business agent of Local
710 did not. Kirk, however, agreed to submit these changes to the drivers for their
approval but failed to secure that approval from even one driver due, perhaps, to
the fact that Kirk expressed to them his own personally held opinion that, by approv-
ing said proposed rules changes, collection of the fringe benefits of the contract
would become impossible. Bowen was displeased with Kirk's efforts as steward.
Shortly thereafter on April 16, Bowen suspended and a few minutes later dis-
charged Kirk for allegedly ordering two unauthorized work stoppages on April 14
and 15, respectively, i.e., the Black-Bland episode at Angola, Indiana, and the
Guerink-O'Neal bedding crisis at the Chicago terminal. Bowen's questions to the
four drivers involved during his interviews with them indicate concretely his inten-
tion to get them to implicate Kirk somehow and some way in these episodes. The
most he was able to accomplish was to determine that the men had consulted Kirk
in regard to their rights under the contract. This would seem the normal function of
a union steward. 'Bowen's discharge telegram to Kirk in which he held Kirk respon-
sible for the bedding incident despite the positive and unalterable assumption of
complete and sole responsibility for the incident'by Guerink indicates the lengths to
which Bowen was prepared to go to implicate Kirk
This time it required an award by the Joint State Board ordering Respondent to
reinstate Kirk with full backpay in order to secure Kirk's reinstatement by the
Respondent Suffice it to say that the facts presented in this record warrant no other
award than that rendered by the Joint State Board.is
During the several days consumed by the negotiations leading to a determination
of the backpay due Kirk under the award of the Joint State Committee, suggestions,
blandishments, and even threats of physical violence were made to Kirk by both
Bowen and Nolte to induce him to approve Bowen's proposed rules changes or to-
police the' collective-bargaining agreement as the union steward less vigorously.
Although Kirk resisted them all, these efforts by the Respondent constitute violations
of Section 8(a)(1) of the Act. And despite them Kirk continued thereafter his
militant performance of his duties as steward.
And so on May 23, the Respondent acting this time through Operations Manager
Nolte fired Kirk for the third time in his 7-month career as union steward, allegedly
for inducing another unauthorized work stoppage, which, on this occasion, involved
driver Timmerman.
This time Nolte discharged Kirk and Timmerman as a result of the telephone
call made by Kirk to Nolte from Angola, Indiana. Kirk and Timmerman say that
this telephone call was made in an attempt by Kirk to assist Timmerman to return
to a sick wife. Nolte says that in this telephone call Kirk refused to permit Timmer-
man to continue the trip as a "single," that Timmerman refused to proceed against
the orders of his steward and that the discharges resulted from these refusals.
There are elements which seem to support each version. There were numerous
minor discrepancies in the testimony of the General Counsel's witnesses corroborating
the fact that Mrs. Timmerman was sick early in the morning of May 23. However,
such discrepancies are not unusual. Although Mrs. Timmerman did not reach the
hospital until 5.40 p.m., the facts show that she was ill enough that day to have
consulted a doctor in the morning in company with Mrs. Shockey which, at least,
tends to corroborate that Timmerman evidence 16 The witnesses for the General
Counsel on this subject appeared to be telling the truth as they recalled events long
past
Respondent's argument made in its brief: "Thus it is understandable that when
Timmerman arrived home and realized that he had been wrong in refusing to proceed
15 It should be noted that none of the drivers who allegedly stopped work were discharged
16 It is to be noted that not even Respondent's so-called "offer of proof" attempts to
deny the fact of this visit.
DENVER-CHICAGO TRUCKING COMPANY, INC. 1431
with his trip he would try to use his wife's illness as an excuse " would not seem justi-
fied on the basis of the testimony of the witnesses for the General Counsel.
However, the sockdolager to Respondent 's position came from Respondent's
witnesses . Dispatcher Orishak denied that Timmerman had called him early in the
morning of May 23 , but, as noted heretofore , militant and adamant adherence to
obviously false testimony , albeit an "old chestnut ," places his denial in question. But
the real sockdolager is the fact that , at Nolte's request , Dispatcher Vince Flynn
listened in on the whole of the Nolte-Kirk -Timmerman telephone conversation on
which the discharges were based if Respondent 's theory is to be accepted. Yet,
although Flynn was thus the perfect witness and not shown to have been unavailable,
Respondent failed to call him as a witness . Why? The fair implication , of course,
is that Respondent failed to call this important witness because it knew that his
testimony as to that telephone call would not aid its position : i.e., Nolte's testimony
that Kirk 's call dealt solely with his, Kirk's, refusal to permit Timmerman to proceed
on the Buffalo trip as a "single ," that Timmerman declined to proceed on the orders
of Kirk, and , in addition , that Nolte had never heard anything of Mrs. Timmerman's
illness until he heard that testimony at the present hearing.
This last portion of Nolte's testimony was obviously false because the minutes
show that Nolte was present at the time the cases of Timmerman and Kirk were
heard at the Joint State Board and there is no showing of any change in the testimony
of either Timmerman or Kirk between the Joint State Board hearing and the instant
one.
In addition , in his wire discharging Kirk on May 23 Nolte said : "This [referring
to the Timmerman incident ] was the second unauthorized work stoppage caused by
you within the past 60 days." This reference to a previous work stoppage "within the
past 60 days" can only be a reference to the Black -Bland and the Guerink -O'Neal
incidents of April 14-15. In view of the award of the Joint State Committee, the
reference to either of these as an "unauthorized work stoppage" proves a willingness
to disregard fact in order to achieve a desired end. Thus, on all the facts the Trial
Examiner is unable to credit the testimony of Nolte in regard to this telephone call.
Consequently it appears that Nolte discharged Kirk on this third occasion for the
same reason as had motivated Respondent on the other two similar occasions: a de-
sire to rid itself of an energetic , militant steward who intended to, and did, police
the collective -bargaining agreement in effect strictly in accordance with the terms
thereof and thus to discourage any such militant union activity among its employees
in violation of Section 8 (a) (1) and ( 3) of the Act.17
Respondent spent a number of pages of its brief to indicate that Kirk was not an
easy man with whom to deal and was, in fact, "the last angry man." Even if we
assume the truth of this charge , it would still constitute no defense for Respondent's
discrimination in discharging Kirk because of his energetic handling of union af-
fairs as its union steward . If it would, no union steward sincerely trying to enforce
an existing contract would last long in his position . To hold otherwise would last
long in his position . To hold otherwise would permit the nullification of the guar-
antee that employees could deal with their employer through "representatives of
their own choosing."
As to Timmerman , Respondent correctly argues that this record fails to disclose
any union activity on his part. However , in the circumstances of this case such lack
of union activity is not fatal . The facts here show that Timmerman was the inno-
cent bystander and unhappy victim of Respondent 's illegal and discriminatory action
against Kirk. Although Respondent 's discriminatory action was aimed at Kirk, in
order to discharge Kirk on the grounds of ordering an unauthorized work stoppage,
Respondent also had to discharge Timmerman as the individual who stopped
work 18 In other words , Timmerman was the innocent but necessary victim of the
same discriminatory action which caused Kirk 's discharge and, therefore , his dis-
charge also necessarily became a violation of Section 8(a)(1) and ( 3) of the Act
despite the lack of union activities on his part.
Respondent 's brief refers to the Joint State Committee awards upholding the Com-
pany's position in both the Kirk and the Timmerman discharges . Respondent' ad-
mits that these awards are not binding upon the Board or this Trial Examiner but
suggests that they should be considered . The Trial Examiner has. The minutes of
the Joint State Board for June 30-July 1, 19,59, the dates on which these discharges
were considered , show that on those days the Joint Committee during its 2-day ses-
sion considered 39 different cases of which one-third , or 13. were discharge cases
including the 3 heard here. In view of the 5 days it took in the instant case to hear
17 Dismissal of union stewards for such reasons has been recognized as a violation of
the Act at least since the Kelly Springfield Tire Co . case in 6 NLRB 325
I,Thus , Respondent did not repeat its mistake of April 14 and 15
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only three discharge cases, all of which were considered in the Joint State Board's
2 days of hearing , it seems quite obvious that the Joint Committee 's treatment of
the cases before it could not have been exhaustive . In addition , in those cases which,
on policy grounds, the Board refuses to set aside such an award , the Board has indi-
cated that in order to insure fairness in the making of such awards an unbiased public
member should be sitting . None sat on the Joint State Committee . Consequently,
on the basis of both the adequacy of the hearing and the absence of a public mem-
ber, the Trial Examiner does not believe the Board 's public policy doctrine should
be applied here.
2. Joe Foss
The undenied testimony here makes it clear that Respondent did not like the
fact that Joe Foss circulated the petition for call time in 1957 or that subsequently
Foss became a strict and militant observer of the terms of the over-the-road contract.
In fact, Tomasek once warned Kirk not to get in the "same boat" as Foss and Butler
had because of their strict adherence to the contract. Nolte also explained that he
was under orders to discharge Foss because of such militant and strict observance
of that contract. The Trial Examiner has no doubt but that Respondent was desirous
of discharging Foss because of this union militancy.
Finally, Respondent did discharge Foss on June 8, 1959 , "for recklessness result-
ing in a serious accident ," a legitimate contractual cause for discharge , on the basis
of an accident occurring the day before while Foss was driving on Route 20 near
Chesterton, Indiana.
This record contains much evidence on the accident with considerable speculation
as to the cause thereof . The accident was an unusual one, in that the fifth wheel
which is attached to the tractor and by which the trailer is connected to the tractor,
was completely detached from the tractor and remained attached to the trailer when
the vehicles came separately to rest. The Trial Examiner sees no reason to detail
all the testimony regarding the accident here.
The fact of the matter is that Bowen conducted a thorough investigation of the
accident on the evening of its occurrence and in the daylight the following morning
and, although he indicated to Foss on the evening of the accident that Foss would
not be discharged because of the accident, after further investigation the next morn-
ing, Bowen did, in fact , discharge Foss for recklessness causing a serious accident.
Although the Trial Examiner might well have come to a different conclusion as
to the question of recklessness than did Bowen , the Trial Examiner cannot say on
the evidence presented here that Bowen's contrary conclusion was either so unrea-
sonable or so biased as to indicate that the accident was being used as a mere pretext
for a discriminatory discharge.
Therefore , the Trial Examiner will recommend the dismissal of the complaint as
to Joe Foss.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES 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 com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in numerous unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and that it take cer-
tain affirmative action designed to effectuate the policies of the Act.
It having been found that the Respondent discriminated in regard to the hire and
tenure of employment of Emmet M . Kirk and David Timmerman by discharging
each of them on May 23, 1959, the Trial Examiner will recommend that the Re-
spondent offer to each of them immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority or other rights
and privileges, and make each of them whole for any loss of pay he may have suf-
fered by reason of said discrimination against him by payment to him of a sum of
money equal to that which he would have earned as wages from the date of the dis-
crimination against him to the date of the offer of reinstatement , less his net earn-
ings'during such period, in accirdance with the formulas set forth in F. W. Woolworth
Company, 90 NLRB 289.
Because of the nature and variety of the unfair labor practices engaged in by the
Respondent, the Trial Examiner senses an attitude of general opposition to purposes
PEAVY CONCRETE PRODUCTS, INC. 1433
of the Act in general , and, hence , the Trial Examiner deems it necessary to order
that the Respondent cease and desist from in any manner infringing upon rights
guaranteed to the employees in Section 7 of the Act.
CONCLUSIONS OF LAW
1. By discharging Emmet M . Kirk and David Timmerman on May 23, 1959,
thereby discriminating in regard to their hire and tenure of employment and dis-
couraging union activity among its employees , the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a) (3) and (1)
of the Act.
2. By interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed to them in Section 7 of the Act, the Respondent has engaged
in and is- engaging in unfair labor practices within the meaning of Section 8(a) (1)
of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
4. The Respondent did not violate Section 8(a)(3) or (1) of the Act by dis-
charging Joe Foss on June 8, 1959.
[Recommendations omitted from publication.]
Peavy Concrete Products , Inc. and Blanton Allen
Peavy Concrete Products , Inc., and Peavy Concrete Company
and Atlanta Building and Construction Trades Council and
Truck Drivers and Helpers Local Union No . 728, affiliated
with the International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Petitioner. Cases
Nos. 10-CA-4589 and 10-RC-4778. August 29, 1961
DECISION AND ORDER
On March 21, 1961, Trial Examiner Ralph Winkler issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and is engaging in certain Imfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Rodgers and Fanning].
The Board 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 Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations.
132 NLRB No. 109.