Dorn's Transportation Co., Inc.

National Labor Relations Board - Board Decisions

Nov 27, 1967

168 N.L.R.B. 457 (N.L.R.B. 1967)

DORN'S TRANSPORTATION CO., INC. 457
Dorn's Transportation Company, Inc. and Inter-
national Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, Local
294. Case 3-CA-3098
November 27, 1967
DECISION AND ORDER
BY MEMBERS FANNING,JENKINS, AND ZAGORIA
On July 18, 1967, Trial Examiner John F. Funke
issued his Decision in the above-entitled proceed-
ing, finding that the Respondent had engaged in and
was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. He further
found that the Respondent had not engaged in cer-
tain other unfair labor practices alleged in the com-
plaint and recommended dismissal of those allega-
tions of the complaint. Thereafter, the Respondent
and the General Counsel filed exceptions to the
Decision and supporting briefs, and the 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, briefs,
and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner, except as modified below.
1. The Trial Examiner found, and we agree, that
the Respondent violated Section 8(a)(3) of the Act
by discharging Richard Rogers. However, he made
no finding with respect to the firing of Alvin Weiss.
Weiss, who like Rogers had not agreed to work
overtime, was discharged so that the treatment af-
forded both men would be consistent. Under these
circumstances, we find, unlike the Trial Examiner,
that the discharge of Weiss also violated Section
8(a)(3) of the Act.2
2. The Trial Examiner found that the Respond-
ent had not committed any independent violations
of Section 8(a)(1) of the Act. Contrary to the Trial
Examiner, however, we conclude that the Respond-
ent interfered with the Section 7 rights of its em-
ployees by engaging in coercive interrogation and
by withholding salary increases because of the
union organizing campaign.
The record establishes that Margaret Del Ross,
supervisor of the interline department, asked Kira
Aldre whether she had joined the Union; John Cur-
ran, manager of the claims department, interrogated
George Hewitt about signing a union card; Clifford
Carter, secretary of the corporation and general
traffic manager, asked Alvin Weiss during a meet-
ing of the traffic department whether he was a
member of the Union; and Raymond Lindquist,
general office manager, questioned various female
employees as to whether they had signed union
cards, interrogated John Allen about the picketing,
and charged him with having signed a union card. In
view of the number of employees involved, the
identity of the questioners who occupied positions
at various levels of the Respondent's hierarchy, the
absence of any assurances against reprisal or legiti-
mate purpose for the questioning, and the other un-
fair labor practices engaged in by the Respondent,
we find that this interrogation of employees con-
cerning their union activities and sympathies tended
to interfere with, restrain, and coerce the employees
in the free exercise of their right to select a bargain-
ing representative, and therefore violated Section
8(a)(1) of the Act.
We also find that the Respondent violated the
Act when Carter advised Candace Ashdown that,
although the Company ordinarily reviewed salary
increases during the latter part of the year, she
could not be given a raise until the "situation" was
settled and when John Allen was told by Lindquist
that nobody would receive a raise because of union
problems. By withholding salary increases, which
it would have granted had there been no organizing
campaign and so advising its employees, the
Respondent restrained and coerced its employees
and thereby violated Section 8(a)(1) of the Act.
This is so despite the fact that the Respondent may
have believed that it could not grant any raises
because of a pending election petition.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent,
Dorn's Transportation Company, Inc., Albany,
New York, its officers, agents, successors, and as-
signs, shall take the action set forth in the Trial Ex-
aminer's Recommended Order, as herein modified:
1. Reletter paragraph 1(b) to 1(d) of the Trial
Examiner's Recommended Order and insert the fol-
lowing as paragraphs 1(b) and 1(c):
' The General Counsel's motion to correct the official transcript, which
the Trial Examiner inadvertently failed to rule upon, and which is the sub-
ject of an exception by the General Counsel, is hereby granted in the
absence of objections thereto
2 Von DerAhe Van Lines, Inc, 164 NLRB No 91. No remedial order
is necessary with respect to Weiss since he has been reinstated with full
backpay
' McCormick Longmeadow Stone Co, 158 N LRB 1237
168 NLRB No. 68
458 DECISIONS OF NATIONAL
"(b) Interrogating employees concerning their
union membership , sympathies , or activities in a
manner violative of Section 8(a)(1) of the Act."
"(c) Withholding increases in wages from em-
ployees and informing such employees that such in-
creases cannot be granted because of the Union."
2. Delete from paragraph 2(d) of the Trial Ex-
aminer ' s Recommended Order that part thereof
which reads "to be furnished" and substitute
therefor "on forms provided ...."
3. Insert the following after the third indented
paragraph of the notice:
WE WILL NOT question you about your mem-
bership in , or your activities on behalf of, the
International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of
America, Local 294, or any other union.
WE WILL NOT withhold wage increases, or
tell you that we are withholding increases,
because of the Union.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN F. FUNKE, Trial Examiner: Upon a charge filed
November 1, 1966, and an amended charge filed
November 21, 1966, by the above-named labor organiza-
tion, herein the Union, against Dorn's Transportation
Company, Inc., herein Dorn or the Respondent, the
General Counsel issued a complaint and an amendment
to the complaint alleging that Respondent violated Sec-
tion 8(a)(1) and (3) of the Act
The answer of the Respondent denied the commission
of any unfair labor practices.
This proceeding, with all parties represented, was
heard before me at Albany, New York, on May 17 and
18, 1967. At the conclusion of the hearing the parties
were given leave to file briefs and briefs were received
from the General Counsel and the Respondent on June
22.
Upon the entire record in this case and from my obser-
vation of the witnesses while testifying, I make the fol-
lowing:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is a New York corporation having its prin-
cipal place of business at Albany, New York, where it is
engaged in providing trucking services between various
points in New York, New Jersey, and other States. Gross
revenues for the past 12-month period were in excess of
$500,000, of which more than $50,000 was received from
trucking services from the State of New York to places
outside the State of New York.
Respondent is engaged in commerce within the mean-
ing of the Act.
11. LABOR,ORGANIZATION INVOLVED
Local 294 is a labor organization within the meaning of
the Act.
LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Violations of Section 8(a)(3)
1. The evidence
For a period of years Dorn had been party to a master
agreement which covered its drivers who were
represented by the Union., In late September of 1966
Richard Rogers, an overcharge claim agent employed by
Dorn, had a conversation with Russell Lamberson, shop
steward for the drivers, in which Lamberson told him the
Union was anxious to represent the clericals and gave
him application for membership cards to distribute. Lam-
berson testified that Rogers returned about 26 signed
cards.
Rogers testified that he had been employed in the traf-
fic department at Dorn's since 1957 and that he was
discharged on October 7, 1966. He received the cards
from Lamberson on either October 3 or 4. He passed out
cards to the six employees in the traffic department, the
four girls in the IBM department, the six girls in the file
department, two girls in claims department, and four or
five in accounting. There were other miscellaneous dis-
tributions by Rogers. This activity took place over a cou-
ple of days. Among the employees solicited were Ellen
Thompson, secretary to Clifford Carter, secretary of the
corporation, and Betty Cramer, private secretary to Pre-
sident Walter Dorn. It was Rogers' testimony that he
talked to about 40 of approximately 50 employees in the
clerical unit. His testimony also indicated that his solicita-
tion of an employee named Geraldine Flanagan might
have been observed by Mike Colabelli, Dorn's assistant
traffic manager, and that Pat. Tymchin might have been
observed by Clifford Carter when she returned her card
to him.
Sometime in the spring of 1966 the customary vacation
schedule was prepared for employees in the general traf-
fic and interline department.2 The schedule contained the
following footnote after the name L. Rexford:
It is assumed that Glen Handy, Harold Zeh, Dick
Rogers and Larry Schneider will cover for Rexford
while he is on vacation. We may have problems with
Larry Schneiders schedule since Jane, his wife, is ex-
pecting sometime in May. We will cross this bridge
when we get there.
The schedule showed that Rexford would be on vacation
from May 31 through June 7 and from October 24
through October 28. All the witnesses agreed that when
Rexford took his vacation his work would customarily be
performed by employees in the traffic department exclu-
sive of Weiss. (It was known to management that Weiss
worked nights and was not available for overtime work.)
The assignments (and witnesses for both the General
Counsel and Respondent agree on this) had always been
worked out between the men on a voluntary basis and no
previous difficulty had been encountered in getting
Rexford's work done. His work had been taken care of
while he was on vacation in May and June.
On September 19 Rogers delivered a note3 to Colabelli
reading:
G C Exh 2.
1 Resp Exh I The employees in traffic, besides Rogers, were Glen
Handy , Harold Zeh , Larry Schneider , and Alvin Weiss
3 Resp Exh. 7
DORN'S TRANSPORTATION CO., INC.
I am working every night for State Photo Corp. in
Albany - therefore I will not be able to fill-in for Rex.
The last night I will be available for "emergency" fill-
ins is Tuesday, 9-20-66.
Colabelli testified that he did not take this note too seri-
ously because despite his "griping" in the past Rogers
had covered many shifts. On October 4, however,
Colabelli wrote a note to Butts,4 manager of Respond-
ent's Colonie Terminal, which stated:
Re: Rex's vacation 10/24 - 10/28
The only available persons to cover this period are
Glen Handy and Harold Zeh. They can work only
Monday, Wednesday and Friday.
The others:
Dick Rogers has an evening job. See Photo-stat.
Al Weiss likewise.
Larry Schneider - not available.*
Will cover Rex only if he can come in at 3 p.m. Will
not work day & night.
Butts testified that his receipt of this note from Colabel-
li was the first notice he received that there might be trou-
ble in getting replacements for Rexford although he
testified that he and Colabelli spoke to each other many
times a day. Butts said he took his problem to Walter
Dorn but he did not testify to Dorn's reaction.5
Rogers testified that he gave his notice of unavailability
for overtime work to Colabelli in September when he first
was seeking replacements for Rexford. Late in the after-
noon of October 7 Carter called Rogers, Weiss, and
Colabelli into his office and told them that only two peo-
ple in the department had volunteered for overtime and
the remainder had not. Carter said that Rogers and Weiss
should have offered to work. Rogers told him he had
other work to do at night and Weiss told him he had
another job. Despite their protests both were fired.
Neither was given the choice to work overtime to escape
discharge.
Carter testified that he first became aware of the
replacement problem on October 4 and that he suggested
that Colabelli write the note to Butts. Carter was in New
York on October 5 where he received a telephone call
from Walter Dorn in which Dorn told him he had a matter
to discuss at the earliest opportunity. Carter, after going
to Baltimore on the 6th, returned early on the 7th and met
Dorn. They reviewed the replacement problem and in
particular Rogers' refusal to work overtime. They also
reviewed Rogers' career with the Company at some
length. The only testimony relating to the Respondent's
motive for discharging Rogers and Weiss is that of Carter,
who did not make the decision. The pertinent part of his
testimony with respect to his conversation with Dorn and
later with Rogers and Weiss reads:
A. . . . I had several conversations with Dick that
I related to Mr. Dorn that his attitude has
Resp Exh. 5
Butts also stated that Rogers had told him about I week before his
discharge that he was planning to quit Dorn to work full time on photog-
raphy and wanted to know if he could give him extra billing work at night
459
depreciated and Mr. Dorn took this all in in the con-
versation. He said that this is something that he can
not tolerate, any of these men not willing to step in
and put a shoulder to the wheel when we needed
them. If that was Dick Rogers' attitude and he had
the memorandum there that Dick had written, we
have no place for him and he must be discharged. I
then said to Mr. Dorn that let's be consistent about
this, we have another man in the department who has
never done any emergency overtime at night.
Q. Who was that man?
A. Mr. Weiss. He said under that circumstance -
well, I explained to him at the time Al joined us he
was the most recent addition to the department, he
came in six years ago. The other men in the depart-
ment, between them, had always covered and were
ever [sic] an emergency arose Al indicated that he
was not available and since the situation were
covered, we never made an issue of it. And, I said
that on the other hand Dick has worked nights in
emergencies and on vacations and it seems to me that
in all fairness that this would require some recogni-
tion and some recognition be given to the fact that
Dick in the past was willing. He said that if Al Weiss
is in the same category you must release him too. So,
I worked with Mr. Dorn for some ten years and
sometimes you don't argue and don't refuse and so I
accepted his instructions and we had a check drawn
for each of the men with which was their pay and two
weeks separation pay. I called them in on October
the 7th in the afternoon and explained the situation
and that they were released.
Q. Did you tell them the reason for being
dismissed at that time?
A. Yes, I did.
Q. What was the reason you gave to them?
A. That Mr. Dorn would not tolerate their refusal
to fill in when needed in an emergency and in connec-
tion with the terminal operation. I might add that I
did say to Al Weiss that I must admit he was
somewhat of a victim of circumstances and it was
known that he had this other job and we never made
an issue of it. Nevertheless, it was Mr. Dorn's deci-
sion that under the circumstances the same action be
taken with respect to both men.
The testimony of Rogers as to what he and Weiss were
told is substantially in agreement. Rogers stated that he
protested the discharges as unfair but was told that Dorn
was a stubborn Dutchman who had already made up his
mind. Rogers' testimony as to the close of conversation
follows:
Q. Tell us what he said.
A. There was nothing we could say that would
change his mind. I asked Mr. Carter if he would give
me a letter of recommendation and he said he
couldn't. I asked if he would give me a letter stating
the reasons why I was let go and he said he couldn't.
He said we should have no difficulty getting jobs as
Traffic Consultants. That's about what I remember.
Weiss had obtained regular evening work with another
motor carrier shortly after he went to work for Dorn, had
Butts also related this to Walter Dorn and received an equivocal answer.
Rogers testified that he had heard that there might be night work available
in Butts' department and inquired about it without suggesting that he
would quit his day work
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made this fact known, and had never been requested to
work overtime. Weiss' testimony reads:
Q. Does there come a time when he indicates
whether you will or will not continue working there?
A. Now, I was adding up to that. He said that
Walter Dorn was mad about it and I said, "Well, in
other words he's telling us we now have to work
overtime in the Terminal?" And he said, "Well," and
he pulled my check out and I said , " Is this it?" And
he said, "This is it , it's out of my hands. Walter Dorn
made up his mind and once a stubborn Dutchman
makes up his mind and-" I said this is very amazing,
very strange, I was never asked or told directly I
would have to cover this work down there and now
to be fired for this after six and a half years, it's
strange. And he said, "I have no complaint about
your work with Dorn's, it's out of my hands. I have
no objection if you go and talk to Walter Dorn" and
he said the same to Rogers. I said, "Is he here now"
and I look out the window and said he's left for the
day. I asked if he was here tomorrow and he said that
maybe he would be. So we got out checks and that
,was about it.
On November 3 Rogers and Weiss set up a picket line
at Dorn.6 The picket legend on one side read:
Guilty of Unfair Labor Practice, Fires Office Em-
ployees for Union Activity, Local 294, Teamsters.
On the other:
Dorn's Transportation is Guilty.
Rogers testified that the men on the docks (represented
by the Union) honored the picket line and the following
day most of the clericals honored the picket line and
many of them joined it. The employees returned to work
on November 16.
On November 12 Weiss received a letter (G C. Exh. 4)
from Down which read:
The matter of your discharge has been taken under
further study. You were separated because I was ad-
vised that you failed to make yourself available for
emergency fill-in duty. In further discussion of the
matter with your department heads I am informed
that you never directly refused a request to
cooperate with the company's requirements.
In the circumstances you may report for work on
Monday, November 14th. You will be compensated
for all unpaid time between the date of your
discharge and November 14th.
Weiss testified that he returned to work with the other
strikers on November 16. He received full reimburse-
ment for the time lost.
2. Conclusions
I find that Rogers was discharged in violation of Sec-
tion 8 (a)(3) of the Act.
Rogers initiated organization of the clerical employees,
solicited their membership, and distributed cards in the
office during working hours. Among the employees sol-
icited by Rogers were Roy Brownell (Rogers gave him six
cards and asked him to have them signed by the IBM em-
ployees), who worked directly under Lindquist, the office
manager, Carter's private secretary, and Dorn's private
secretary. In addition there was ample evidence that
acknowledged supervisors, including Carter, had the op-
portunity to observe his activity.' Under these circum-
stances and considering the size of the unit (50 em-
ployees) I think it only reasonable to infer that Respond-
ent had early knowledge of Rogers' activity."
While the evidence introduced by the General Counsel
to support the alleged violations of Section 8(a)(1), infra,
is insufficient in my opinion to establish the violations al-
leged, it clearly indicates a curiosity on the part of
management concerning such activity and a reluctance to
accept the Union as representative of the clericals. While
this attitude did not find expression until after Rogers'
discharge, it must be noted that the discharge took place
on the Friday of the week during which the activity com-
menced. There was little time for crystallization of op-
position.
The reason given for the discharge of Rogers was his
unwillingness to work overtime when Rexford took his
vacation. This unwillingness was expressed in writing and
is not contradicted. His decision, however, was made
known to management on September 19 but no notice
was taken of it until October 4, the day after Rogers
started solicitation of employees.9 As Colabelli testified,
the situation with respect to vacations had always worked
out satisfactorily and he expected that this one would. As
a matter of fact, despite the firing of Rogers and Weiss, it
did. It was Butts, supervisor of Rexford, who took the
matter to Dorn on October 4. What Dorn's reaction was
is not disclosed by Butts' testimony.
Carter's testimony as to what Walter Dorn told him on
October 7 has been fully set forth, supra. Dorn, himself,
however was not a witness and Carter's testimony as to
Dorn's motive is, in a sense, hearsay. In a case where
motivation must be inferred the failure of Dorn to testify
is damaging beyond repair. We have two employees with
years of service, neither of whom had been a faulty
worker,10 discharged precipately without notice for
failure to agree to work overtime. Yet, on uncontradicted
testimony, we find that this situation, as to Weiss, had ex-
isted over a period of 6 years and, as to Rogers, it had ex-
isted periodically over a period of years. Until union ac-
tivity was initiated management had tolerated the un-
willingness of Weiss to work overtime at all and Rogers'
unwillingness to work when it did not suit his con-
venience. I also find some difficulty in reconciling the
postdischarge treatment of Weiss and Rogers. The
discharge of Weiss, of course, was in the nature of an af-
terthought for the penalty, at first, was to be directed only
to Rogers. It was only when Carter reminded Dorn that
Weiss had consistently refused to work overtime that
Weiss was included. Weiss, whose union activity con-
sisted simply in signing a card, was reinstated and reim-
6 Although this subsequent activity is not germane to the 8(a)(3) allega-
tion it casts some light on the allegations of violation of Section 8(a)(1)
7 Margaret Del Ross , supervisor of the interline department , testified
that prior to the discharges the place was "buzzing" and that the day after
the discharges Carter asked her if the girls in the office had joined the
Union
" N L R B v Abbot, 127 F 2d 438, 440 (C A 1), Quest-Shon Mark
Brassiere Co , Inc , 80 NLRB 1149, 1150, enfd 185 F 2d 285 (C A 2),
Malone Knitting Co, 152 NLRB 643, enfd 357 F 2d 880 (C A 1)
9 Although Colabelli saw Butts every day he made no mention of the
Rogers problem until he gave him the note , at Carter' s suggestion, on Oc-
tober 4 Again the time coincides with Rogers ' activity
10 Carter's testimony that he thought Rogers ' work and attitude had
been deteriorating finds little support in the reasons stated by Carter
DORN'S TRANSPORTATION CO., INC.
burled while Rogers was not. I do not think it unreasona-
ble, measuring all factors, to infer that the discharge of
Rogers was motivated by discrimination and violated
Section 8(a)(3) of the Act."
As to Weiss, he has been reinstated with backpay so no
remedial order is required and since a finding of violation
with respect to his discharge would add nothing to the
scope of the proposed 8(a)(3) order recommended, no
finding with respect to Weiss will be made. The agency
has a plenitude of work without engaging in exercises in
juridical futility.
B. Violations of Section 8(a)(1)
1. The evidence
Paragraph 6(a) of the complaint alleges that employees
of Dorn were interrogated as to their union membership
by John Curran, manager of the claims department, Mar-
garet Del Ross, supervisor in interline, and Raymond
Lindquist, general office manager.12
In support of these allegations George' Hewitt, em-
ployed in the claims department, testified that about I
week after Rogers and Weiss were discharged Curran
asked him if he had signed a card and he told him "No."
Curran could not recall that he had asked Hewitt if he had
signed a card. This embraces all the testimony respecting
Curran.
John Allen, employed in the IBM department, testified
that the first day of the strike (the day the clericals
worked) Lindquist asked him what the employees were
doing "outside." He advised Lindquist he did not know
and when Lindquist repeated the question several times
told him to leave or he would quit. Later Lindquist
charged him with having signed a card and after Allen ad-
mitted he had he told Allen he would be paying $7 a
month so the union agent could be driving a Cadillac.
Lindquist admitted asking several female employees if
they had signed a card but was not specific as to Allen.13
Testimony concerning interrogation by Del Ross is
confined to her own testimony that on the working day
after the discharges took place Carter asked her if the
girls in the office had joined the Union. She did not know
so she asked Kira Aldra if she had joined and Aldra said
she had not. 14
Paragraph 6(b) of the complaint alleges that Colabelli
and Carter threatened the employees with discharge'15
less favorable working atmosphere, loss of wage in-
creases, and other reprisals if they became or remained
members of the Union.
461
In support of the wage increase allegation the General
Counsel introduced the testimony of Candace Ashdown,
an employee, who testified that she went out on strike
with the clerical employees in November, returned with
them, and continued working. On or about December 7,
she asked for a raise and was called to Carter's office.
Mrs. Del Ross was present and Ashdown testified that
Carter told her "if I had not been out in the parade, out-
side I would have gotten the raise and if the Union
doesn't go through I'll still might get a raise." He also told
her he did not want a union and would do anything he
could to stop it. He added that the Company could not
give a raise "because of being out on strike and the labor
problems at the present time."
Carter testified that Ashdown, through Del Ross, had
asked for a pay raise in December 1966. Carter took the
problem to Walter Dorn who, in view of the union situa-
tion, decided to talk to his lawyer. Later Dorn told him
the girl deserved a raise but that in view of the pending
complaint against Respondent the granting of a raise
might be construed as an attempt to influence an em-
ployee. He then` had Ashdown called in, told her they
were pleased with her work, that they would like to give
her an increase but "because of the situation and the
Complaint pending against is I can't do anything until
this matter is settled." Carter denied, as did Del Ross,
that she was told she could not be given a raise because
she was in the parade and I credit their testimony on this
point. I find that the only ground on which the Respond-
ent based its refusal of Ashdown's request was the pend-
ing litigation. Not only were the charges pending in the in-
stant case but Respondent had filed a petition for an elec-
tion. (3-RM-368.) 16
As to the allegation respecting less favorable working
conditions the General Counsel has introduced a theory
unique in labor law. That theory relates to the personal
relationship which must be maintained by a supervisor
toward his employees although the personal relationship
in no way affects the actual working conditions. It is not
alleged that stricter working conditions would be im-
posed, only that a less cordial relationship would exist.
Thus Aldra testified that after the employees returned to
work Carter called a meeting of the employees in his de-
partment, in the conference room and asked them why
they had gone on strike. Aldra told him to see the union
representative and told him there was nothing personal
about it. Carter said he had been "very hurt" that they
had not let him know before. He then told them that he
"would discontinue everything personal with us." Ash-
down testified that asking the reason for the strike he said
11 Some consideration must also be given to the fact that these em-
ployees with many years of experience were not given the opportunity to
reconsider their decision and to accept overtime employment as against
the penalty of discharge While not required of any employer, this would
be a normal grant of election
12 It was stipulated at the hearing that Curran, Del Ross, Lindquist, and
Colabelli were supervisors within the meaning of the Act
1' Diana Sheehan, employed in Lindquist's department, testified that
she voluntarily told Lmquist she had signed a card Lindquist told her
there was nothing she could do, "when you sign an installment plan you're
in and that's it." She added, "He was more lenient than my father would
be, I would say "
14 Del Ross had known Aldra for 17 years Aldra's testimony is that she
and another employee went to Del Ross to talk to her about the Union,
that Del Ross became very upset and told them she did not want to hear
about it , referring to the maxim , "Hear no evil , speak no evil , think no
evil "
11 1 find no evidence to support this allegation. Rogers, who might be
described as an anxious witness, testified that one afternoon when he was
in Colabelli's office during the period when he was soliciting memberships
Colabelli told him to watch his step. This remark was totally unrelated to
any conversation regarding the Union The situation is clearly distin-
guishable from that in Big Town Super Mart, Inc, 148 NLRB 595, cited
by the General Counsel In that case the remark made by a supervisor to
an employee that "she was crazy for going along with the Union"
contained a clearly implied threat of reprisal and was expressly related
to the employee's union activity
16 There is also testimony that Lindquist told John Allen that no one
would get a raise because of union problems, but the complaint contains
no allegation to that effect I find that this issue was fully litigated but
since the General Counsel does not refer to it in his brief I assume he is
not urging it as further evidence of violation
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"the relationship between him and us was over, it was
going to be strictly business." Weiss testified that on the
day after the employees returned to work he told the traf-
fic department that they had been picketing almost 100
percent and asked them to prepare a list of grievances.
Carter then called a meeting of the department and asked
for their grievances. Weiss' testimony as to this meeting
reads:
A. Well, he repeated what he said in his request
that it was something that triggered this off in his de-
partment. He asked if we prepared the list that he
mentioned and no one said anything. He said all
right, we can talk about it and no one said anything.
He said something to this effect, "Well, what are the
grievances? What do you have to say?" And he
looked at me and I said, "I would rather you
discussed it with the Business Agent of the Union."
And he said, "There is no Union." And I said,
"There is one out there." And I motioned to the dock
and he said, "Are you a member of theat Union?"
And I said, "No." Then, he looked at others in the
group and asked various ones if that was your same
reason and they said yes and spoke to Mr. Zeh and
he said, "Is that your reason, Harry?" And he said,
"I wanted to belong to the Union, I signed a card."
Mr. Carter said that we have no objection to having
a Union here as long as it comes through the front
door, but this business of coming through the back
door we don't like it. This is dirty, you'll have to
admit that. I said, "I don't admit that." He said,
"You have to admit it was dirty." I said, "No, I don't
admit that." And he said it was a matter of opinion
and I said, "Yes." So, it was dropped for a time and
he mentioned that he always tried to be friendly with
us and on a personal basis but from now on it would
be cordial no more. He asked why it could have hap-
pened in his department and I said, "Well, I think the
answer is obvious." He said, "Why?" I said, "Well,
you have the men in your Department who have the
most experience in the trucking business and they
know more about the conditions and they are apt to
be the ones to find out about it the most." He said,
"How about the Inter-Line girls?" And I said,
"They're closely associated with us." And he asked
the one girl present, Kay Downing, was that your
reason and she said partly and partly because she
wanted to be a member of the Union and I think he
said he had no objection to the Union. I believe that's
about the substance of it.
Handy corroborated Weiss in substance and testified that
Carter told them "the so-called friendly relationship was
to be no more, nothing more than hello in the morning and
good-bye at night and the remainder of the day strictly
business."
Paragraph 6(c) alleges that Carter, in a telephone call,
gave an employee the impression that union activities
were under surveillance. Zeh testified that on November
6 Carter telephoned him at his home. Because the
General Counsel cites this conversation to support this
allegation, Zeh's testimony will be cited verbatim. It
reads:
A. Mr. Carter called me and told me the first thing
he said, "Now, you don't have to listen, you can hang
up" and I said that I would be glad to listen to you
and then he began to speak, he said, "I noticed you
were out in the street, I heard you out on the picket
line" and I said, "Yes, I am." Then he said, "Have
you given a second look at this, have you asked your-
self the question of are you doing the right thing?"
And I said, "I have thought about it very very seri-
ously in my opinion I believe I'm doing what I think
is right." So, that part of the conversation stopped.
He went on further to say that in relation to Al Weiss
particularly - I had asked him why in the world Al
Weiss was let go and that it could have been me. He
said, "In the case of Al Weiss the Company attorney
had been looking over the facts of the case and he be-
lieved that Al should be more or less reinstated and'
taken back into work." He said further, "it has come
to his attention not as a fact but as a rumor that per-
sonally Al Weiss had been involved in labor activity
for around two and a half years." I think when I
heard that, when he said that, I said I've know Al
Weiss and worked with him and not only at Dorn's
but previous to that and I said that to my knowledge
Al Weiss has never been involved in any manner
with Union activity or otherwise that his conversa-
tion had never been Union or pro-Union to my
knowledge and I don't know whether I went on with
more rebuttal to his statement but I did say that.
[Emphasis supplied.]
Paragraph 6(d) alleges that Carter, on December 7,
promised the employees wage increases if they refrained
from becoming or remaining union members. The only
testimony submitted to support this allegation is that of
Ashdown, supra, which I have discredited on this point.
Paragraph 6(e) alleges that on the same date Carter told
employees that he did not want a union and would do
everything to stop it. This paragraph also relies on Ash-
down's testimony, supra. While this statement is not
specifically contradicted in the record I am unwilling to
make a finding of violation. Ashdown, in testifying, did
not give the impression that she had a clear recollection
of her conversation with Carter on December 7, and this
statement was certainly incompatible with Carter's ex-
pressions of his attitude toward the Union as testified to
by other employees. 17 Granted that he opposed the
Union there is no indication anywhere that he was willing
to take unlawful means to defeat it. I think it is still the
law that management may oppose the organization of its
employees by lawful means.
2. Conclusions
I cannot find that the interrogation which took place at
Dorn coercive. In each instance the interrogation was
unaccompaied by any threat, direct or implied, of
reprisal; it was casual; it took place, so far as the record
indicates, at the employees' work stations; and the inter-
rogators were at the lowest echelon of the supervisory
hierarchy. It did not occur in the midst of a heated antiu-
nion campaign nor, as hereinafter found, in a context of
other violations of Section 8(a)(1)
In particular I would not find Lindquist's interrogation
of Allen as to what the employees were doing "outside"
when they were picketing constituted interrogation in the
" Carter was a frank, forthright, and credible witness
DORN'S TRANSPORTATION CO., INC. 463
sense that term is used by the Board. It was not directed
toward ascertaining Allen's union membership or sym-
pathy but was a simple expression of curiosity as what the
picketing employees were doing.
As to Del Ross' interrogation of Aldra, Aldra's own
testimony establishes that it was she and another em-
ployee who initiated the conversation and that Del Ross
refused to discuss the Union. It is on Del Ross' admission
that the General Counsel relies. But that concerns one
simple inquiry by a minor supervisor to a friend of 17
years' standing with no possible implication of reprisal
against Aldra.is The General Counsel is hard put when
forced to rely on testimony such as this.
The interrogation in this case falls far short of meeting
the criteria of coercive interrogation set forth by the
Second Circuit in Bourne v. N.L.R.B., 332 F.2d 47.
There the court, reversing the Board's finding that the in-
terrogation was unlawful, applied the following stan-
dards:
(1) The background: i.e., is there a history of employer
hostility and discrimination?
(2) The nature of the information sought; e.g., did the
interrogator appear to be seeking information on which to
take action against individual employees?
(3) The identity of the questioner; i.e., how high was
he on the company hierachy?
(4) Place and method of interrogation, e.g., was the
employee called from work to the boss' office? Was there
an atmosphere of "Unnatural formality?"
_(5) Truthfulness of reply.
Applying these tests there was no manifestation of
hostility in the interrogation itself. Evidence of dis-
crimination 'has been found in the discharge of Rogers,
but there was no way for the employees to know that his
discharge was not for the reason stated, although suspi-
cion would certainly be created when Rogers and Weiss
started picketing on November 3. It must also be noted,
however, that the Respondent had a collective-bargaining
contract with the Union covering its other employees and
there is nothing to indicate the relationship was not an
amicable one.
There was no evidence that the interrogator appeared
to be seeking information on which to take action against
any individual employee.
The questioners were at the lowest level of the super-
visory hierarchy and were on friendly terms with the em-
ployees.
There was no atmosphere of "unnatural formality."
As to the truthfulness of reply the evidence is unclear
Del Ross testified that when she asked Aldra if she had
signed a card Aldra said she had not. While Aldra joined
the picket line this was some time after the interrogation
and there is no evidence when, if ever, she signed a card.
Her testimony that she approached Del Ross to tell her
about the benefits of the Union would indicate she was
not subject to coercion.
When Allen was asked by Lindquist if he signed a card
he admitted that he had. Hewitt denied to Curran that he
had signed a card and his testimony is that he had refused
to sign a card. He did not go out on strike. As to the
unidentified female employees questioned by Lindquist
there is no evidence. This is far from sufficient to support
a finding that the employees interrogated gave false or
evasive answers To the extent that any finding may be
made, the answers were truthful.
Following Bourne, the Board stated, Cannon Electric
Company, 151 NLRB 1465, 1470, that it would consider
the criteria set forth in Bourne as "tentative only and not
of general applicability." This language, almost bereft of
meaning, leaves the Board uncommitted. It may follow
Bourne when it sees fit and ignore it when it does not and
its course since Bourne may best be described as
meanderous. 19
The courts are no more certain. The Fifth Circuit
adopted, with reservations, the Bourne tests in N.L.R.B
v. Camco, Inc, 340 F.2d 803. Bourne was cited with ap-
proval in N.L.R.B. v. Park Edge Sheridan Meats, Inc.,
341 F.2d 725 (C.A. 2), reversing 146 NLRB 1226; fol-
lowed again in N.L.R.B. v. I Posner, Inc., 342 F 2d 826
(C.A. 2), reversing 145 NLRB 1190; N L.R.B. v. M & B
Headwear Co., 349 F.2d 170 (C.A.D.C.), affg. on this
point 146 NLRB 1634; N.L.R.B. v. Ritchie Mfg. Co.,
354 F 2d 90 (C.A. 8), affg. on this point 147 NLRB 1257.
In N.L.R.B. v. Lexington Chair Co., 361 F.2d 283
(C A. 4), the court, while citing Bourne, rested its deci-
sion, although two of the Bourne criteria were not met, on
the ground that the Board had properly exercised its pri-
mary duty "to determine the significance of particular
acts of interrogation in the light of the entire record in the
case." This is in accord with the statement made by the
court in Ritchie, supra, that "interrogation of employees
may or may not amount to coercion, depending upon how
the interrogation was conducted and the surrounding cir-
cumstances." These would seem to be the only tests
which can be pragmatically applied although, where the
Bourne standards or a majority of them are met, it would
seem that a finding of violation would follow. Interroga-
tion is a kind of conduct not subject to definitive measure-
ment in terms of the statute.
In finding the interrogation herein was not unlawful, I
rely on the language used by the dissenting minority in
Blue Flash Express, Inc, 109 NLRB 591, which held,
although disagreeing with the majority holding that the in-
terrogation was not coercive, that,
There are, of course, instances of interrogation
which can properly be regarded as isolated, casual,
and too inconsequential in their impact to constitute
a violation of the Act or to warrant a Board remedy.
The majority had determined that interrogation was not
coercive where the employer has a proper reason for
making the inquiry, the employees are told the reason, the
atmosphere is free from antecedent hostility and animus,
'" 1 think there is some doubt that Del Ross and Aldra were referring to
the same conversation This doubt, however, does not advance the
General Counsel's case
'" The Board has cited Bourne in support of its findings in the following
cases Harris Paint Company, 150 NLRB 72, Rosen Sanitary Wiping
Cloth Co Inc, 154 NLRB 1185, United Mineral & Chemical Corpora-
tion , 155 NLRB 1390, Gruber's Food Center, Inc, 159 NLRB 629 In
the vast majority of cases involving interrogation the Board has made its
findings without reference to Bourne Cf M & W Marine Ways, Inc , 165
NLRB 191, where the Board found that the interrogation of an em-
ployee who had worn a union badge to work and had been identified as a
union sympathizer was coercive The interrogator was his foreman, who
asked him how he felt about the union
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the employees are assured reprisals will not take
place.20 But Blue Flash does little more than establish a
rule which may be applied to a specific situation and it,
like Bourne, can have no universal application. In the in-
stant case there was no assurance against reprisal but a
reading of the testimony fails to support any implication
of reprisal. Again, the Respondent held no valid reason
for interrogating its employees since no claim of majority
had been asserted by the Union. The interrogation was
not systematic, however, and it was engaged in by minor
supervisors in daily and continuous contact with the em-
ployees. It does, therefore, fit the lanugage used by the
dissenting members.
That part of paragraph 6(b) of the complaint which al-
leges that Respondent threatened its employees with
"less favorable work atmosphere" refers to the talk given
by Carter to the employees in his department a day or two
after the strike ended. In his talk, according to the
General Coun is witnesses, he told them he "would
discontinue eve ything personal"; "everything would be
strictly business"; there would be "nothing more than a
hello in the morning and a good-bye at night"; that he
"had always tried to be friendly with us and on a personal
basis but from now on it would be cordial no more."
The immediate difficulty presented is in measuring the
quantum of affection which the statute requires a super-
visor to lavish upon his employees.21 Mindful of the ad-
monition of the U.S. Supreme Court in Allis-Chalmers22
that the words "restraint and coercion" are words of "in-
herent imprecision" and that in construing them
"recourse to the legislative history to determine the sense
in which Congress used the words is not foreclosed," I
find that the legislative history provides no certain
answer .23 At the time Section 8(a)(1) was enacted by the
Congress it was a part of the labor policy of some of the
major corporations to settle labor problems by shooting
unarmed strikers in the back. Such a policy could con-
ceivably be embraced as coercive. But it is hard to say
that a statute enacted against a background of flagrant
and violent abuse of the rights of workers contemplated
that a test of affability must be met by an employer lest
his employees suffer from a feeling of coercion and
restraint. The record here indicates that there was no
change in working conditions and certain employees
testified that their relations with Carter were not in fact
changed. The General Counsel asks that the Respondent
be found guilty of an unfair labor practice because the
relationship between the supervisors and the employees
would no longer be personal and would be strictly busi-
ness. I find no requirement in Section 8(a)(1) that the em-
ployer may not conduct his business on that basis. I find
no criteria which would measure the required warmth of
his morning "hello" or the benignity of his "goodnight."
In short, the only firm conclusion I reach from this allega-
tion is that this government can afford not only guns and
butter but chicken too.
Paragraph 6(b) and paragraph 6(d) refer to threats of
loss of wage increases and promises of wage increases
conditioned on union membership or surrender of union
membership. Each paragraph refers to Carter and the
date of December 7, 1966. The only incident on that date
is Carter's conversation with Ashdown in the presence of
Del Ross, supra. I have already made credibility findings
favoring Carter's testimony, supported by Del Ross, that
he did no more than tell Ashdown that she could not
receive a wage increase pending settlement of the "union
problem." At this time there was pending Respondent's
petition for an election and nothing could be clearer than
that, had Respondent granted the wage increase, the
General Counsel would have alleged such action a viola-
tion of Section 8(a)(1).24 A respondent is caught, in such
a situation, where the General Counsel will find him
hanged if he does and, as here, hanged if he doesn't. The
wage increase denied in this case was not contigent on the
employee's union membership or lack thereof nor was
any promise of a future wage increase contigent on mem-
bership or surrender of membership. It was denied, after
consultation with Respondent's attorney, on the ground
that it might constitute an unfair labor practice. No pru-
dent attorney, considering the policy of the General
Counsel, could advise otherwise. I do not think that a pol-
icy of issuing complaints regardless of Board and court
precedent a wise one. It costs a respondent time and
money to defend against unfair labor practice charges and
he should not be charged with such expense where the in-
vestigation reveals that the proof is insufficient or the
conduct does not, as a matter of law, constitute a viola-
tion of the Act.25 The distinction between energetic and
comprehensive enforcement and undue harassment is not
a fine one.
I have already found there was insufficient evidence to
support paragraphs 6(c) and 6(e) of the complaint.
I therefore find that, apart from the discharge of
Richard Rogers, the Respondent did not violate Section
8(a)(1) of the Act.
IV. THE REMEDY
Having found Respondent engaged in and is engaging
in certain unfair labor practices, I shall recommend that
it cease and desist therefrom and take certain affirmative
action necessary to effectuate the policies of the Act.
Having found that Respondent discharged Richard
Rogers in violation of Section 8(a)(3) and (1) of the Act,
I shall recommend that he be offered full and immediate
reinstatement to his former or substantially equivalent
position without prejudice to his seniority or other rights
and privileges. I shall also recommend that Respondent
20 Since in Blue Flash all the employees were interrogated, Blue Flash
represented a "polling" rather than an interrogation issue See Struksnes
'Construction Co Inc, 165 NLRB 1062. Struksnes added a fifth pre-
caution , the poll must be secret
21 There exists the possibility of conflict with other statutes and with
recognized proprieties where the supervisor in question is married and su-
pervises married female employees Another source of difficulty is sug-
gested Let us conceive that a supervisor, during a period of union or-
ganization, arrives at work suffering from irritability due to dyspepsia,
gout, or that most frequent cause of matutinal irritability, the common
hangover Is the General Counsel to issue complaint which will require
expert medical or psychiatric testimony in rebuttal9
22 N L R B v Albs-Chalmers Manufacturing Company, 388 U S 175
21 Recourse to the dictionary for guidance as to the meaning of the lan-
guage used was not suggested in the majority opinion
21 I his is true even though the evidence, under established Board
precedent, would not sustain the charge See The Great Atlantic & Pacific
Tea Company, 165 NLRB 989, Jewel Smokeless Coal Corp, 163
NLRB 651, Drug Fair-Community Drug Co, 162 NLRB 843, T L Lay
Packing Co , 152 NLRB 342, General Industries Electronics Company,
152 NLRB 1029
25 The argument may be made, of course, that there is no such thing as
Board law-there are only ad hoc decisions and that the General Counsel
is thereby compelled to give every case, however doubtful, its day in
court If the argument is true it reflects little credit on the Board as an ad-
ministrative agency
DORN'S TRANSPORTATION CO., INC 465
make him whole for any loss of pay he may have suffered
by reason of the discrimination practiced against him, in
accordance with the formula of F. W. Woolworth Com-
pany, 90 NLRB 289, and Isis Plumbing & Heating Co.,
138 NLRB 716.
Upon the basis of the foregoing findings and conclu-
sions and upon the entire record in this case, I make the
following:
ent to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 3, in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.27
IT IS FURTHER RECOMMENDED that all allegations of
the complaint not specifically found to be in violation of
the Act shall be dismissed.
CONCLUSIONS OF LAW
I By discharging Richard Rogers for engaging in
union activity and for the purpose of discouraging mem-
bership in a labor organization, Respondent violated Sec-
tion 8(a)(3) and (1) of the Act.
2. The Respondent did not engage in other unfair labor
practices in violation of Section 8(a)(I) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
26 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
21 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith "
RECOMMENDED ORDER
It is hereby recommended that Dorn's Transportation
Company, inc., Albany, New York, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discriminating against any employee in regard to
his hire or other term or condition of employment to
discourage membership in International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local 294, by discharging or otherwise ter-
minating his employment.
(b) In any other manner interfering with, restraining,
or coercing its employees in the exercise of the rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to Richard Rogers full and immediate rein-
statement to his former or substantially equivalent posi-
tion without prejudice to his seniority or other rights and
privileges and make him whole for any loss of pay or
other monetary loss he may have suffered by reason of
the discrimination practiced against him in the manner set
forth in that part of this Decision entitled "The Remedy."
(b) Notify Richard Rogers if presently serving in the
Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Train-
ing and Service Act, as amended, after discharge from the
Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(d) • Post at its terminal at Albany, New York, copies
of the attached notice marked "Appendix."26 Copies of
said notice, to be furnished by the Regional Director for
Region 3, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained 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 Respond-
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that-
WE WILL NOT discharge any employee because he
has joined a union or has engaged in any other lawful
union activity.
WE WILL NOT discharge any employee to
discourage membership in the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local 294.
WE WILL offer Richard Rogers his job back
without loss of his seniority or other rights and
privileges and pay him for any loss of pay or other
monetary loss he may have suffered since we fired
him.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization, to form, join, or assist
the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
Local 294, or any other labor organization.
All of our employees are free to become or remain, or
to refrain from becoming or remaining, members of the
above-named or any other labor organization, except as
such right may be affected by a lawful union-security
clause contained in a collective-bargaining contract we
may have made with a union.
DORN'S TRANSPORTATION
COMPANY, INC.
(Employer)
Dated By
(Representative ) (Title)
Note: We will notify the above-named employee if
presently serving in the Armed Forces of the United
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
States of his right to full reinstatement upon application defaced, or covered by any other material. -
in accordance with the Selective Service Act and the If employees have any question concerning this notice
Universal Military Training and Service Act, as or compliance with its provisions, they may communicate
amended , after discharge from the Armed Forces. directly with the Board's Regional Office, 4th Floor, The
This notice must remain posted for 60 consecutive 120 Building, 120 Delaware Avenue, Buffalo, New York
days from the date of posting and must not be altered, 14202, Telephone 842-3100.
.r.