Dieckbrader Express, Inc.

National Labor Relations Board - Board Decisions

Dec 13, 1967

168 N.L.R.B. 867 (N.L.R.B. 1967)

DIECKBRADER EXPRESS , INC., 867
Dieckbrader Express, Inc. and Sidney F. Tucker.
Case 8-CA-4529
December 13, 1967
DECISION AND ORDER
By MEMBERS BROWN, JENKINS, AND ZAGORIA
On September 5, 1967, Trial Examiner Joseph I.
Nachman issued his Decision in the above-entitled
proceeding, finding that the Respondent had not en-
gaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief, and Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner. I
ORDER
the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (herein called
the Union or Local 407), and additionally violated Sec-
tion 8(a)(1) of the Act by interrogating its employees con-
cerning their union activities, and threatening employees
with discharge or other reprisals because they gave
testimony to the Board or engaged in activities on behalf
of the Union. Respondent, by answer, admitted certain
allegations of the complaint, but denied the commission
of any unfair labor practices.
At the hearing the parties were afforded an opportunity
to introduce testimony, to examine and cross-examine
witnesses, and to argue orally on the record. Oral agru-
ment was waived. Briefs submitted by the General Coun-
sel and Respondent have been duly considered.
Upon the entire record, including my observation of
the demeanor of the witnesses, I make the following:
FINDINGS OF FACT2
A. Background
Respondent operates an over-the-road truck line with
about five terminals in various cities. Its principal office
and terminal is at Cincinnati, Ohio. The only terminal in-
volved in this proceeding is at Cleveland, Ohio. All
drivers are organized, those operating out of the Cleve-
land terminal being represented by Local 407, and a con-
tract is in effect which covers their wages, hours, and
working conditions. All terminals have a garage where
preventative maintenance and other mechanical work is
performed. All mechanics are organized, except those at
the Cleveland terminal. At the Cleveland terminal, three
mechanics are employed on overlapping shifts around the
clock. Tucker, the alleged discriminatee in this case,
works the 10 p.m. to 7 a.m. shift.3 This case is concerned
only with efforts to organize the mechanics.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
' In adopting the Trial Examiner's dismissal of the 8(a)(1) allegation
based on interrogation, we rely solely upon the fact that the single instance
of interrogation, in the context of this case, was too isolated to warrant is-
suance of a remedial order hereon
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPH I. NACHMAN, Trial Examiner: This complaint,)
pursuant to Section 10(b) of the National Labor Relations
Act, as amended (herein called the Act), heard by me at
Cleveland, Ohio, on June 6, alleges that Dieckbrader Ex-
press, Inc. (herein called Respondent or Company), vio-
lated Section 8(a)(1) and (3) of the Act by discharging
Sidney F. Tucker because of his assistance to and sup-
port of Truck Drivers' Union, Local 407, affiliated with
1 Issued April 8 on a charge filed March 13. All dates are 1967, unless
otherwise stated.
168 NLRB No. 113
B. Current Facts
1. The discharge of Tucker
Tucker's employment began in mid-January 1966, at a
weekly salary of $115. After 30 days his salary was in-
creased by $5, and on May 1, 1966, by an additional $10,
bringing his weekly salary to $130, where it remained
until his discharge on March 10. Tucker described his du-
ties as follows: seeing that all trucks leaving the terminal
were roadworthy; making sure brakes and lights were
functioning properly; performing preventative main-
tenance, such as greasing and changing oil and filters;
making road calls when necessary; and dispatching
drivers leaving the terminals during his duty hours.
In December 1966, Tucker and fellow mechanics,
Cawthon and Casteel, discussed the desirability of union
representation. The conversation ended with the un-
derstanding that Cawthon would communicate with the
Union and have them send a representative to talk to the
mechanics. Cawthon reported this to Terminal Manager
Eck, an admitted supervisor. In January, Tucker,
Casteel, and Cawthon again discussed the matter, and
2 No issue of commerce or labor organization is presented. The com-
plaint alleges and the answer admits facts which fully established these
elements. I find these facts to be as pleaded.
3 John Cawthon, the leadman in the garage, works from 7 am. to 4 p. in.,
and Willis Casteel works from 2 to 11 p in
336-845 0 - 70 - 56
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
while Tucker expressed himself as in favor of the Union,
Cawthon and Casteel decided that they did not wish to
proceed with it, at least not at that time. Cawthon also
promptly reported this to Terminal Manager Eck. The
record is not clear as to efforts thereafter made by Tucker
to secure union representation; the only thing shown is
that about March 1, Union Steward Fred Joseph4 told
Tucker that he (Joseph) was going to get some union
cards for the mechanics to sign, and Tucker told him "to
go ahead."
When Tucker reported for work on March 10 about 7
a.m., Cawthon, at Eck's direction, told Tucker that he
was discharged because he "wasn't putting out enough
work." Tucker then went to see Eck, who confirmed the
discharge and, when asked the reason therefor, stated
that Tucker was not doing sufficient preventative main-
tenance; that his quota was three a night and Tucker had
not been doing them.5 Tucker was then paid and left the
premises. A termination sheet, completed by Eck at the
time,6 gave as the reason for Tucker's discharge "Inabili-
ty to attain and assume the duties of a journeyman
mechanic and not being able to produce the necessary
production." Although Tucker denied that Eck had ever
told him that he had to perform three preventative main-
tenance jobs a night, he admitted that several weeks prior
to his discharge, not only Eck, but Leadman Cawthon,
had told the whole shop that the garage was not doing suf-
ficient preventative maintenance.
The only other testimony adduced by the General
Counsel relating specifically to the matter of Tucker's
discharge was that given by witnesses Joseph, Thorne,
and Marsh, all employed by Respondent as drivers out of
the Cleveland terminal. Joseph and Thorne testified, in
substance, that preparatory to going on a driving assign-
ment , they went to the terminal to get the vehicle they
were to drive and be checked out; they saw Tucker there;
that he always appeared to be busy and, so far as they
could tell, performed his work properly.7
More important to the General Counsel's case, how-
ever, was the testimony of Marsh, for if his testimony is
credited, an admission by Respondent that Tucker was
discharged for his union activity is established. Marsh
testified that he had three conversations with Dispatcher
Larkin,8 an admitted supervisor, and that in each conver-
sation Larkin stated that Tucker was "let go because of
union activity." Although Larkin was not called as a wit-
ness, and Marsh's testimony in that regard is uncontra-
dicted, I do not credit him for the following reasons:
1. Although Marsh at first attributed to Larkin the
statement that Tucker was "let go because of union ac-
tivity," in subsequent portions of his testimony the state-
ment he attributed to Larkin was that Tucker was "let go
for no good reason," and that he (Larkin) "felt it was un-
fair."
2. His testimony as to how these alleged conversa-
tions with Larkin came about, and how the specific sub-
ject of Tucker's discharge arose, I find unclear, if not con-
fusing, perhaps due to the rambling nature of his
testimony and proclivity for injecting irrelevant details.
3. His demeanor while testifying was not such as to in-
spire confidence.
In support of its defense that Tucker was discharged
because of the deficiency in the quantity and quality of his
work, Respondent relies on the testimony of Terminal
Manager Eck, and Tucker's fellow mechanics, Cawthon
and Casteel. Eck testified, in substance, that Tucker's
work was deficient virtually from the inception of his em-
ployment in January 1966, and that he spoke to Tucker
about it on numerous occasions; that for a short time after
such discussions Tucker's work would improve, but then
he would lapse into his former conduct. Eck was particu-
larly critical with respect to Tucker's habit of leaving
tools lying around outside, lack of proper safety habits,
and inattention to duty. He testified to occasions when
reaching the terminal about 7 am., he had found battery
chargers, jumper cables, and similar equipment lying
about the terminal lot. On a number of occasions he ob-
served Tucker working under a truck, the front of which
was raised off the ground and supported only by a piece
of 2 by 4.9 Eck also testified with respect to numerous oc-
casions when he returned to the terminal late at night and
found Tucker in the drivers' room or in the office drinking
coffee, and on one such occasion in particular when
Tucker was not in the garage, and after waiting for him for
about an hour, instituted a search of the premises and
found Tucker in the restroom, fully clothed, reading a
book.
Cawthon and Casteel, the other two mechanics,
testified, as did Eck, regarding Tucker's bad safety habits
and permitting the preventative maintenance work to pile
up. Casteel, whose shift overlapped Tucker's shift by 1
hour, reported his observations to Leadman Cawthon, in-
cluding the fact that Tucker was from one-half to three-
quarters of an hour late for work, 3 or 4 days a week. io
Cawthon reported this to Eck.
Early in March, Eck received from the main office a
memorandum dated March 2, critical of the fact that
proper preventative maintenance was not being per-
4 Joseph is employed by Respondent as a driver out of the Cleveland
terminal , and is the Union's steward there.
5 Tucker complained that it was not possible to do three jobs a night
because frequently that number of trucks were not available on the lot,
and also that he had to check out the drivers leaving after 11 p.m. This,
Eck stated, was not a valid excuse.
6 The termination sheet referred to, which is in evidence as Exhibit
R-3, bears the date "2/10/67." Eck testified that the figure 2 was an error,
and that the document was in fact executed March 10. 1 credit his
testimony in that regard.
T Thorne also testified that on some occasion in 1962, he was in Eck's
office and heard the latter state that "if the mechanics joined the Union he
would fire them." There is no evidence as to circumstances under which
this statement was allegedly made, nor is there any evidence of union ac-
tivity among the mechanics at that time. The General Counsel relies upon
this testimony as proof of animus I regard this alleged incident as too
remote and insufficient to support a finding of union animus.
8 Marsh fixed the time of the first conversation about March 18, the
second about a week later, and the third as May 30. The first two conver-
sations Marsh said were over the telephone when Larkin was at home,
and the one on May 30 was at Marsh's home, while Larkin was visiting
there.
9 Eck referred to "a couple of industrial claims" which he attributed to
Tucker's bad safety habits, but he did not elaborate as to what these were,
or whom they involved
10 It is significant that Tucker, who was in the hearing room and heard
Eck, Cawthon, and Casteel testify, was not recalled to deny the derelic-
tions of duty they attributed to him. Except for Tucker's denial, when tes-
tifying during the General Counsel's case-in-chief, that he left tools and
equipment about the yard, and the inference from his testimony that the
unavailability of trucks on the yard and his other work prevented him from
performing the preventative maintenance required of him, the testimony
of Eck, Cawthon, and Casteel, in that regard, stands undemed. The fair in-
ference, which I draw from Tucker's failure to deny this evidence, is that
he could not truthfully do so.
DIECKBRADER EXPRESS, INC., 869
formed on trucks at the Cleveland terminal. Enclosed
with this memorandum was a survey showing excessive
mileage or time lapse between preventative maintenance
jobs. According to Eck, his knowledge of the equipment
and how it was used, the records maintained at the Cleve-
land terminal showing the work done by each mechanic,
and the fact that preventative maintenance work was per-
formed mostly on Tucker's shift, led him to the conclu-
sion that Tucker was to blame for the fact that said work
was not being performed on time. After discussing the
matter with Leadman Cawthon, who concurred in Eck's
view that Tucker was not performing his duties, Tucker
was discharged on March 10, as above related.
2. The Section 8(a)(1) allegations
Following the discussion among the three mechanics in
January as above set forth, Leadman Cawthon voluntari-
ly went to Eck and told the latter that while Tucker was
in favor of proceeding with the Union, he and Casteel
were opposed to doing so, at least at that time. Eck then
asked Cawthon what he thought of the Union, and "Why
don't you want to get in?" Cawthon explained the reasons
for his decision, and the discussion concluded with Eck
stating, "if you join the Union, let me know."11 The
General Counsel contends that Eck's statement violated
Section 8(a)(1) of the Act.12
CONCLUDING FINDINGS
Upon consideration of the entire record, I find and con-
clude that the General Counsel has failed to prove by an
preponderance of the evidence that Tucker's discharge
was in any way motivated by his union activity. I am pur-
suaded to this conclusion by the following:
1. The absence of credited evidence of animus. On the
contrary, the evidence shows that Respondent recognizes
and deals with a union as the representative of all its
drivers and all mechanics, except those at Cleveland,
where no request for recognition has been made by any
union . There is no showing that the relations between
Respondent and the Union involved have been other than
harmonious.
2. No substantial violation of Section 8(a)(1) of the
Act is established; if any such violation occurred, it was
of a minimal nature.
3. Substantial derelictions of duty on the part of
Tucker, which he tacitly admitted by failing to deny them,
were established.
4. Eck had known of Tucker' s union sentiments for
approximately 3 months prior to discharge. The
discharge, therefore, did not come hard upon discovery
of that fact.
5. Eck had known since January that two of the three
mechanics were opposed to the Union, and he had no
reason to expect that union recognition would be asked,
" Based on the credited testimony of Cawthon, Eck admitted the con-
versation referred to by Cawthon, but did not deny the statements at-
tributed to him by the latter
12 By amendment to the complaint , the General Counsel alleged that
Respondent threatened employees with discharge and/or other reprisals
for giving testimony to the Board , or engaging in union activity. In support
of this allegation employee Marsh , heretofore referred to, testified that in
a telephone conversation with Cecil R Faber , Respondent 's director of
labor and safety , an admitted supervisor , the latter stated,"ln substance,
that Marsh had gone to the Board and "shot his mouth off" about the
Tucker case , was going to the Union and causing trouble, and that Marsh
was "on top of the list to be gotten rid of." Faber admits a telephone con-
versation with Marsh but gave a different version of what was said. Ac-
assuming that he wished to avoid that situation.
6. While it is suspicious that Eck waited until March
to discharge Tucker, when according to his own
testimony Tucker's derelictions of duty extended over
virtually the entire 14 months of his employment, suspi-
cion is not a substitute for proof by a preponderance of
the evidence, a burden which rests upon the General
Counsel.
Nor do I find any violation of Section 8(a)(1) in the
conversation between Eck and Cawthon concerning the
Union. As the Board held in Frito-Lay, Inc., 151 NLRB
28, 34, not every interrogation of employees concerning
their union views is violative of Section 8(a)(1) of the Act,
the test being "whether under all the circumstances, the
interrogation reasonably tends to restrain or interfere
with the employees in the exercise of their rights." The
circumstances of the instant case plainly do not fall within
that test. It must be remembered that Cawthon, not Eck,
initiated the conversation, and that Cawthon volunteered
the information that a majority of the three mechanics had
decided not to seek union representation at that time.
Being a leadman, Cawthon's relationship with Eck must
have been closer than that which would ordinarily prevail
between Eck and rank-and-file employees. Under these
circumstances, I find and conclude that Eck's limited and
rather casual remarks to Cawthon, which were not shown
to have been communicated to the other employees in-
volved, could not reasonably be construed as tending to
restrain or interfere with Respondent's employees in the
exercise of their rights. Moreover, even if Eck's remarks
be regarded as violative of Section 8(a)(1) of the Act, they
are too isolated and inconsequential to warrant issuance
of a remedial order.
Upon the foregoing findings of fact and the entire
record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The General Counsel has failed to establish by a
preponderance of the evidence that Respondent engaged
in unfair labor practices proscribed by Section 8(a)(1) or
(3) of the Act.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and con-
clusions of law and the entire record in the case, and pur-
suant to Section 10(c) of the National Labor Relations
Act, as amended, it is recommended that the complaint
against Dieckbrader Express, Inc., as amended, be
dismissed in its entirety.
cording to Faber, he called Marsh at the request of the Union to try to set-
tle a claim that Marsh was making against Respondent for not allowing
sufficent milage on certain trips, on the basis of which Marsh's pay was
computed; that this was one of a number of similar claims by Marsh in the
approximately 18 months he had been employed by the Company; that he
told Marsh he was tired of these recurring disputes, and if Marsh felt he
had been improperly paid , to file a grievance as provided in the contract,
and the matter would be processed in accordance therewith. Faber denied
threatening Marsh with discharge , and also denied that the Board or
Tucker was mentioned in the conversation . I credit Faber. This, of
course, leaves the General Counsel without any evidence to support this
allegation of the amended complaint.