Dorwood Rental Co.

National Labor Relations Board - Board Decisions

Sep 25, 1969

178 N.L.R.B. 635 (N.L.R.B. 1969)

DORWOOD RENTAL COMPANY
Dorwood Rental Company and Max U. Drudge.
Case 8-CA-5369
September 25, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On June 30, 1969, Trial Examiner Gordon J.
Myatt issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers 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 brief, and
the entire record in the case, and hereby adopts the
Trial Examiner's findings, conclusions, and
recommendations.
The Respondent is engaged in the leasing of
trucks and drivers for commercial hauling The
drivers are hired, compensated, and dispatched by
Respondent. Employee Max Drudge was hired by
Respondent in October 1968. Drudge was laid off
on December 23, 1968, and recalled on January 29,
1969.
The ev idence shows that employee Drudge filed a
grievance against Respondent, under the existing
collective-bargaining agreement between Respondent
and Teamsters Local 142, in February 1969, after
being recalled from the layoff. The grievance was
based on Drudge's belief that he had been laid off
out of seniority. The Trial Examiner credited
Drudge's testimony that, on February 18,
Respondent's president, Floyd Van Gunten, called
Drudge into his Toledo office and sought to
persuade the employee to withdraw the grievance.
When Drudge demurred, Van Gunten said that
Drudge would not "he around very long," regardless
of the result of the grievance.' Drudge then left the
office and hauled a load to Chicago, as assigned.
The following day, Drudge called from Chicago
for another assignment . He was offered, and refused
to take, a load from Chicago to Detroit, for the
'The Respondent ' s request for oral argument is hereby denied, as the
record and brief adequately present the issues and positions of the parties
'The Trial Examiner properly lound that this remark constituted a
violation of Sec 8 ( a)(1) of the Act
635
reason that there was no guaranteed return load
from Detroit to the Chicago area. In so doing, he
explained to Respondent his fear that some delay
might occur which would cause him to miss the
hearing on the grievance which was scheduled for
the next day, February 20, in Gary, Indiana. He
therefore told both Floyd Van Gunten and his
brother Carl, the company dispatcher and vice
president, that he would have to "take the trip off."
He also told them, according to his uncontroverted
testimony, that he would he ready to work after the
hearing.
The grievance was denied at the hearing on the
following day. Drudge waited in vain the next day,
February 21, to hear from Respondent about
returning to work. On February 22, knowing that
the Van Guntens were angry at him for filing the
grievance, Drudge decided to ask his Union business
agent to inquire on his behalf why he had not been
recalled to work. The business agent made one
telephone call to Respondent while Drudge was
present, but said that the line was busy. He
promised to call until he contacted Respondent.'
Drudge did not thereafter hear from or contact
Respondent until he received a letter from
Respondent, dated February 26, enclosing his final
paycheck and stating that Drudge was considered a
"voluntary quit" and that his name had been
removed from the driver list.
Section 6(d) of the collective-bargaining
agreement between Respondent and Teamsters
Local 142 provides that when an employee is absent
for three successive working days "without
notification," he may be considered a "voluntary
quit" unless he subsequently furnishes a "justifiable
excuse" for his absence. From an affidavit which
was stipulated into evidence as the testimony of Carl
Van Gunten, it is apparent that Respondent
harbored resentment against Drudge for the
grievance he had filed, and that any opportunity for
discharging Drudge under the foregoing provision
might well be seised upon by Respondent. Carl Van
Gunten stated. in part:
If a driver skips a trip I don't automatically wait
for him to call. If a driver wouldn't call, I might
call to find out where he is at. I didn't call
Drudge because I didn't care where he was at.
And when he took himself out of service he was
obligated to call us. I didn't care where he was at
was [sic] because of the grievance thing and
because he was agitating the other drivers by
talking to them and complaining because he
didn't get called back when he claimed he should
have.
The Trial Examiner found that Respondent
terminated Drudge's employment in reprisal for the
grievance filed by Drudge, in violation of Section
'Certain testimony relating to the purported subsequent efforts of the
Union agent in pursuing this promise was admitted into evidence and will
be discussed infra
178 NL RB No. 104
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(a)(1) of the Act. In the course of so finding, the
Trial Examiner credited and relied upon the
following testimony which, Respondent contends,
was improperly admitted into evidence over its
objection. In answering a question by Respondent's
attorney as to whether, "of your own knowledge,"
employee Drudge was aware that the Union business
agent had contacted the Respondent prior to the
letter of termination, Drudge replied, "That's right,
he told me to come back the next day and he said
he had contacted [the Respondent]." The Trial
Examiner overruled Respondent's motion to strike
the latter part of this answer, holding that the whole
answer was responsive to the question. As noted, the
Trial Examiner relied on this answer in his Decision,
for the purpose of finding that Respondent thus
knew, prior to the time that Drudge was discharged,
that he was available for return to duty. From this
finding, the Trial Examiner drew some support for
his conclusion that Drudge's discharge was not, in
fact, based on the asserted failure to hear from
Drudge for several days after the grievance hearing,
but was rather motivated by Respondent's
displeasure over the grievance earlier filed by
Drudge.
We agree with Respondent's contentions that the
final part of Drudge's answer was not responsive to
the question and that the hearsay reference to the
union representative's alleged contact with
Respondent about Drudge's availability for work
does not probatively establish that there was such
contact. Nonetheless, after considering the other
evidence of record, we believe that the Trial
Examiner properly concluded that Drudge was
discharged because he had filed a grievance under
the collective-bargaining agreement.
When Drudge notified Respondent that he wanted
"to take the trip off" on February 19 so that he
could be sure to attend the grievance hearing on
February 20, he also told the Van Gunten brothers
that he would be available to work the day after the
hearing. His uncontradicted testimony to this effect
is apparently reflected in the Trial Examiner's
finding that " ... Respondent fully understood that
Drudge had only removed himself from service for
the purpose of the single trip to Detroit on February
19." It is clear, then, that, according to both the
terms of the collective-bargaining agreement and
Respondent's practice thereunder, this was ample
"notification" that Drudge was taking himself out
of service for only a limited purpose and period and
would be ready to work thereafter. It is also clear
from other testimony of record that, under normal
practice, Respondent's dispatcher should then have
undertaken to contact Drudge on February 21 and
thereafter." Instead, Respondent allowed several
days to elapse and then invoked the contractual
provision which permitted employers to terminate,
as "voluntary quits," employees who missed 3
successive days of work without notice.
Taking together the credited testimony that, 2
days before the grievance hearing, Drudge was told
by Floyd Van Gunten that he would not be around
for very long whether he won or lost the grievance;
Drudge's testimony that he expressly stated to the
Van Guntens that he would be available for work
after the hearing, which constitutes adequate
notification; and the admission by Carl Van Gunten
in his affidavit that he did not initiate contact with
Drudge "because of the grievance thing," although
in other circumstances he might have sought out an
absent driver, we conclude that Respondent did not
invoke the sanctions of the contract because it
believed that Drudge had voluntarily absented
himself without justification. In our view, the
evidence demonstrates that Respondent could have
had no doubts about Drudge's availability for work
subsequent to the grievance hearing, and further
demonstrates that, under Respondent's normal
business practice, Drudge, having given notice of his
availability, would in any other circumstance have
been contacted by Respondent about an assignment.
We conclude, therefore, that Drudge was terminated
because he filed a grievance, and not because he
missed 3 days of work without notification.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that Respondent, Dorwood Rental
Company, Toledo, Ohio, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as so modified:
Add the following as paragraph 2(b), and reletter
the following paragraphs accordingly:
"(b) Notify the above-named employee 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 Training and
Service Act, as amended, after discharge from the
Armed Forces."
'The combined testimony of Floyd Van Gunten and of Respondent's
senior driver establishes that when a driver plans to be off for an
indeterminate period of time , he takes himself out of service and, when he
is again available for duty, he notifies Respondent Once Respondent
knows that a driver is available, however, the initiative for daily
assignments comes from the dispatcher, who contacts the drivers.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Trial Examiner: Upon a charge
filed February 28, 1969,' by Max U. Drudge, an
individual, a complaint and notice of hearing was issued
by the Regional Director of Region 8 of the National
Labor Relations Board on April 9, 1969, against Dorwood
'Unless otherwise specified all dates herein refer to 1969
DORWOOD RENTAL COMPANY 637
Rental Company (hereinafter referred to as the
Respondent). The complaint alleges that the Respondent
violated Section 8(a)(I) of the Act by threatening Drudge
(also referred to herein as the Charging Party) with
discharge or other reprisals because he filed and caused a
griev ante to be processed against the Respondent through
his collective-bargaining representative. Further that the
Respondent violated Section 8(a)(3) of the Act by
discharging Drudge on or about February 20, 1969, for
the same reason and refused and continues to refuse to
reinstate him to his former or substantially equivalent
position of employment. The Respondent's answer
admitted certain allegations contained in the complaint,
denied others, and specifically denied the commission of
any unfair labor practices.
This case was heard before me in Toledo, Ohio, on
May 13, 1969. All parties were afforded full opportunity
to be heard and to introduce relevant evidence. Briefs
were submitted by all parties and they have been fully
considered by me in arriving at my decision in this matter.
Upon the entire record in these proceedings, including
my evaluation of the testimony of the witnesses based
upon my observation of their demeanor and upon all of
the relevant evidence, 1 make the following:
Findings of Fact
1. JURISDICTIONAL FINDINGS
The Respondent is an Ohio corporation with its
principle office and place of business located in Toledo,
Ohio. The Respondent is engaged in the business of
leasing trucks, trailers, and automobiles to commercial
enterprises. In the course of its business operations, the
Respondent annually receives revenue in excess of $50,000
from R-W Service Co., for leased equipment: the latter
enterprise being located in Taylor, Michigan, and engaged
in commerce within the meaning of the Act.
On the basis of the foregoing, I find that the
Respondent is, and has been at all times material herein,
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
11. THE LABOR ORG&NIZATION INVOLVED
Teamsters Local Union No. 142, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (hereinafter referred to as the
Union), is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of
the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
On December 23, 1968, Drudge was laid off by the
Respondent because of lack of work He was recalled on
January 29. When he returned to work Drudge began to
make inquiries and determined that a Toledo based driver
with less seniority had been working while he was in
layoff status. As a result of this information. Drudge filed
a grievance with Local No. 142 making a claim for back
pay for the 37 days that he was off. This grievance was set
for a hearing before a joint board composed of union and
trucking officials on February 20.
A week prior to February 18, Drudge spoke with
Claude Van Gunten' in an attempt to find out why a less
senior employee worked while he was on layoff.
According to Drudge, Claude Van Gunten told him that
the other employee was Toledo based, and that Drudge
could draw unemployment compensation while off.
During the morning of February 18, Drudge had
delivered a load to a customer in Mason, Michigan and
called the Toledo office from there for a return load. He
was advised by the office girl to return to Toledo empty.
When he arrived he was informed that Flovd Van Gunten
wanted to speak with him in his office. Drudge asked Van
Gunten why he was required to return to the Toledo office
without a load as it was costing the Respondent money '
Drudge stated that Van Gunten replied that he was paying
the employee and that it was none of his damn business
what it cost the Respondent. Van Gunten asked Drudge
why he had filed the grievance for backpay, and told the
employee that it was his company and no one would tell
him how to run his business. Drudge testified that Van
Gunten further informed him that he would not pay him
for remaining at home and not working and sought to
persuade the employee to withdraw the grievance Drudge
took the position that he would not withdraw the
grievance and that he was willing to let the Union settle
the matter, Van Gunten accused the employee of being a
"smart s.o.b." and stated that they were not going to get
along. He asked Drudge why he didn't find employment
elsewhere. According to Drudge, Van Gunten also stated
that no matter how the grievance was settled, the
employee wouldn't he around very long.
Van Gunten testified that Drudge was recalled to
Toledo because there was a load for him from that point
and the Respondent was uncertain about getting a load
out of Detroit In addition, he stated that the truck had to
he brought in for a regular maintenance. Van Gunten
admitted speaking to Drudge in his office about the
grievance. He stated that he simply informed the
employee that he was making a mistake and suggested
that he give the matter another thought. When Drudge
indicated that he intended to go through with the
grievance hearing, Van Gunten testified that he told the
employee that it was his privilege as a union member. He
Drudge was hired as a road driver by the Respondent
on October 10, 1968. He was interviewed and hired by
Floyd Van Gunten, Respondent's president. At the time
he was hired, Drudge was a member of a Chicago local of
the Teamsters Union. At the request of Van Gunten he
transferred to Local 142 in Gary, Indiana. The
Respondent hauled freight between Illinois, Indiana, Ohio,
and Michigan. The drivers were based in Chicago, Toledo,
Detroit, and Kalamazoo areas, and they were members of
different locals of the Teamsters Union.'
'The Chicago based drivers belonged to the Gary local, the Toledo based
drivers belonged to a Toledo local and the other drivers belonged to locals
in Michigan
'Claude Van Gunten was a stockholder and vice president of the
Respondent 's company He was the dispatcher and assigned the drivers to
the loads which they were to haul He was also the individual called by the
drivers if they encountered any difficulty in carrying out their duties The
Respondent contends that Claude Van Gunten was not an agent or a
supervisor within the meaning of the Act, but I find this position to be
without merit . Not only was Claude Van Gunten a shareholder and officer
in the Respondent 's company, but it is clear in his capacity as dispatcher.
he also responsibly directed the drivers in the performance of their dutes
For this reason I find that Claude Van Gunten was a supervisor as alleged
in the complaint within the meaning of Sec 2(l 1) of'the Act
'According to the testimony of Floyd Van Gunten and the affidavit of
Claude, which is in evidence, Drudge was required to return to Toledo in
order to have his truck serviced in accordance with the regular
maintenance schedule
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denied telling Drudge that no one would tell him how to
spend his money or calling the employee a "smart s.o b
He also denied making the statement that Drudge would
not be around very long regardless of the outcome of the
giievance hearing. Van Gunten did acknowledge, however,
that he possibly could have asked Drudge it he didn't like
it there vvhy he didn't work elsewhere?
On the basis of my observation of these witnesses. I am
persuaded that Drudge's testimony gives the more
accurate account of what was stated during this
conversation. Van Gunten impressed me as making a
determined eflort to portray himself as a neutral
concerning the grievance and magnanimous in his
approach to Drudge My observation of this witness while
testifying persuades that he did not till either role during
the conversation with Drudge I. therefore, discredit his
testimony where it conflicts with the testimony of Drudge.
Later that same day Drudge was dispatched with a load
to Chicago. While in route he suffered mechanical
difficulty with his equipment on two occasions About 20
miles from Toledo he had trouble with his brakes. He
stated he called Toledo and requested a mechanic but was
told that one could not he dispatched for about an hour.
Drudge testified that he succeeded in fixing his brakes and
continued on when he had difficulty with his lights He
also repaired this defect and proceeded to Chesterton,
Indiana where he lived. He arrived there somewhere
between midnight and I a.m.`
Drudge delivered the load the following morning
(February 19) and went to a truck stop in Chicago The
truck stop was used by Respondent's drivers to receiv e
calls or assignments from the Toledo office When Drudge
called in he spoke with Claude Van Gunten and was
informed that the Respondent had a load for him to take
out of the Chicago area to Detroit. Ile was also told that
they couldn't guarantee him a return load to Chicago so
that he would be available for the grievance meeting at
the union hall at II a.m the next day. Van Gunten told
Drudge, however. that the Respondent would pay his bus
fare back to Gary if they could not get him a return load.
Drudge stated that he would have to consider the matter
and that he would call back After talking with the union
business agent, Drudge called Van Gunten and stated that
he was not familiar with the bus schedules and he did not
want to take a chance on missing the grievance hearing
lie told Van Gunten that he wanted to "take the trip off",
During the conversation, Floyd Van Gunten got on the
line and assured Drudge that the Respondent would pay
his transportation back it he didn't have a return load.
1-loyd also reminded Drudge that the Respondent would
have to fly a driver to Chicago to take the tractor out if
he did not accept the trip. Drudge nevertheless removed
himself from duty in order to be available for the hearing
the following morning.
'Floyd Van Gunten had testified that he had no knowledge of Drudge's
mechanical difficulty with the equipment until he heard Drudge testify at
the trial He also stated that drivers were instructed to report difficulty to
the office and also required to note the time spent repairing equipment
while on the road on their logsheets . The Respondent introduced into
evidence Drudge's logsheet for that day which indicated that he left
Toledo, Ohio at approximately 4 30 p m. and arrived at Chicago, Illinois
at 8 30 p in . that evening This evidence is relevant only as it affects the
credibility of Drudge Drudge testified that he had placed a call to
Respondent 's office when his brakes Failed , and that he did not mark his
logsheet to indicate the breakdown because every time he did so in the past
he was "chewed out" by the Respondent I do not consider the conflict
between the testimony and the logsheet to diminish Drudge's credibility in
any manner lie appeared to me to be lorthright and candid in his
testimony, and I accept his explanation for the discrepancy in the logsheet.
The grievance hearing was held in Gary. Indiana, the
next day as scheduled Both Drudge and Floyd Van
Gunten were present, and the grievance was denied After
the hearing Drudge did not contact the Respondent's
office in Toledo because he claimed he was aware that
Van Gunten was angry and he didn't want to aggravate
the feelings any further He waited to receive a call from
the Respondent, and when he did not get one the
following day he went to the union office and asked the
business representative to contact the Respondent to find
out why he had not been called hack to work The
business representative was unable to get through at that
time and Drudge left with the understanding that he
would try to do so later. Drudge testified on
cross-examination that the business representative told
him the following day that he had contacted the
Respondent concerning Drudge's availability. On
February 28, Drudge received a letter from the
Respondent dated February 26, containing his final
paycheck and stating that Drudge was considered a
`'voluntary quit" because he took himself out of service on
February 19 and had not reported back for duty since that
date.
Floyd Van Gunten testifed that the Respondent waited
6 days for Drudge to report himsell available for duty,
and when he failed to do so he was considered a voluntary
quit under the provisions of the collective-bargaining
agreement.' In addition, the Respondent called
MacAllister as a witness He was the oldest employee in
point of service, and testified that it was standard practice
for an employee to call the company to advise them of his
availability after taking himself out of service. According
to MacAllister this procedure was always followed by the
employees.
Concluding Findings
The initial question to be determined in this case is
whether Drudge was engaging in protected, concerted
activity when he filed a grievance with his bargaining
representative claiming pay for the time he was laid off.
On the basis of the evidence contained in this record. the
answer to this question must he an affirmative one.
Drudge's grievance brought into question the
Respondent's compliance with the provisions of the
collective-bargaining agreement Under the terms of the
Master Freight Agreement the last man hired was
required to be the first laid off when the work was
reduced.' Drudge's claim that the Respondent violated this
agreement as it pertained to him was a protected activity
because it was "action taken in implementation of the
collective-bargaining agreement and was an extension of
the concerted activity which gave rise to that agreement."
`There was much testimony concerning what this expression meant
According to Drudge it simply meant that the driver would not he
available for the particular trip John MacAllister, a driver for the
Respondent , testified that it meant that the driver was taking himself out
of service, and Hoyd Van Gunten testified that it meant that the driver
was removing himself from duty There doesn 't seem to he any great
distinction between the meanings attached to this phrase beyond the fact
that the driver is not available for work at that particular time
'This agreement consisted of the National Master 1•reight Agreement
supplemented by a document entitled Uniform Rules and Regulations
negotiated between Local 142 and the Indiana Trucking Association. The
supplemental document provided as follows concerning attendence
Section 6(d) Absent for 3 successive working days without notification.
Voluntary quit, unless justifiable excuse is given
'Art 41. sec. 2(b) of the National Master Freight Agreement (Resp
Exh 3)
DORWOOD RENTAL COMPANY 639
B & M Excavating, Inc, 155 NLRB 1152, 1154. In
addition, Drudge's claim that the contract had been
violated as to him put into question the Respondent's
obedience to the terms of the collective-bargaining
agreement and the concerted rights of all employees were
at stake Farmers Union Cooperative Marketing
Association. 145 NLRB 1, 3. See also Rotax Metals, Inc..
163 NLRB No. 21. For the reasons cited, I find that
Drudge was engaging in protected. concerted activity
under Section 7 of the Act when he filed the grievance
against the Respondent with his bargaining representative
This determination leads to the next issue of whether
Drudge was in fact discharged, and if so, was he
discharged because he filed and processed the grievance
through his union? The Respondent takes the position in
his brief that Drudge voluntarily removed himself from
service and never complied with the terms of the
supplemental agreement by taking the action necessary to
return to duty. Thus the Respondent claims it was
justified in considering Drudge to have voluntarily quit its
employment. At first blush it would appear that this
contention should prevail, but deeper consideration of all
of the credible evidence in the record dictates a contrary
conclusion.
When he attempted to persuade Drudge to withdraw
the grievance on February 18. Floyd Van Gunten told
Drudge that regardless of the outcome of the hearing he
would not be around very long. The evidence clearly
supports the conclusion that Van Gunten carried out this
threat by discharging Drudge on February 26. Although
the Respondent interpreted the collective-bargaining
agreement to require drivers to call in when they were
available after having removed themselves from duty, and
although MacAllister testified that all drivers followed this
requirement, the evidence shows that the Respondent did
not apply this rule to all drivers on all occasions. The
affidavit submitted in lieu of testimony by Claude Van
Gunten clearly bears out this fact In that document Van
Ciunten stated:
if a driver skips a trip I don' t automatically wait for
him to call If a driver wouldn't (sic) call, I might call
to find out where he is at. I didn't call Drudge because
I didn't care where he was at And when he look
himself out of service he was obligated to call us I
didn't care where he was at was [sic] because of the
grievance thing and because he was agitating the other
drivers by talking to them and complaining because he
didn't get called hack when he claimed he should have.
[Emphasis supplied ]
The statement of Claude Van Gunten gives clear insight
into the primary reason underlying the Respondent's
failure to contact Drudge as it had contacted other drivers
who had removed themselves from service. As stated by
Claude Van Gunten, the Respondent's officials did not
care where Drudge was "because of the grievance thing".
even though the Respondent fully understood that Drudge
had only removed himself from service for the purpose of
the single trip to Detroit on February 19 Moreover,
Drudge testified on cross examination Chat he had been
informed by the union representative that the Respondent
had been contacted concerning Drudge's availability alter
the griev ance hearing.'
For the reasons set forth above, I find therefore that
Drudge did not voluntarily leave the Respondent's
employ, but rather, that he was discharged by the
Respondent for processing the grievance through his
bargaining agent. Even if the Respondent's claim that its
treatment of Drudge comported with the terms of the
collective-bargaining agreement is accepted, the evidence
clearly shows that the sanctions of the agreement were
invoked against Drudge because he elected to question the
Respondent's conduct through the grievance procedure.
Thus the issue is not whether there was in fact a
legitimate reason for discharging Drudge, but rather was
his discharge in significant part motivated by an unlawful
reason . N.L.R.B. v. D' Armigene, Inc , 353 F.2d 406, 409
(C.A. 2). 1 find that he was terminated for reasons
proscribed by the Act. Accordingly, I land that Drudge
was discharged for engaging in protected concerted
activity which was guaranteed by Section 7 of the Act.
and that the Respondent's conduct not only interfered
with the exercise of this statutory right but also had the
inherent effect of coercing and restraining its exercise by
other employees. B & M Excavating. Inc , supra, Rotax
Metals, Inc , supra.
The General Counsel contends that the Respondent
violated both Section 8 (a)(1) and (3) of the Act by
discharging Drudge. Because the remedy appropriate for
discharge in violation of' Section 8(a)(1) of the Act
provides, for all practical purposes, the same relief as the
remedy based on a violation of Section 8(a)(3), I find it
unnecessary to reach nor do I pass upon the question of
whether the Respondent, by the same conduct, also
violated Section 8(a)(3) of the Act ,4 S Ilubbs, An
Individual, d/b/a A. S Hubbs Contracting, 163 NLRB
No. 42; Anaconda Aluminum , 160 NLRB No 35.
CONCLUSIONS OF LAW
1. I)orwood Rental Company, is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Teamster Local Union No. 142, International
Brotherhood of Teamsters, Chaffeurs. Warehousemen and
Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act
3. By threatening to discharge employee Max Drudge
on February 18, 1969, and by discharging this employee
on February 26, 1969 because he engaged in protected
concerted activities under the Act, the Respondent has
interfered with, restrained, and coerced employees in the
exercise of rights guaranteed in Section 7 of the Act, and
has thereby engaged in unfair labor practices within the
meaning of Section 8(a)(l) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Tick. REMEDY
Having found that the Respondent has engaged in and
is engaging in as certain unfair labor practices. I shall
recommend the issuance of an order that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act. Having
found that the Respondent illegally discharged Max
'Although Floyd Van Gunten denied having been contacted by anyone
concerning Drudge's availability, I do not credit this denial While it would
have , been infinitely easier to resolve this particular point had the General
Counsel produced the union representative , I nonetheless find that
Drudge's statement that he had authorved the business agent to contact
the Respondent and subsequently on cross examination that the contact in
fact had been made is credible and worthy of belief.
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Drudge for engaging in protected activities, I shall
recommend that the Respondent offer him full and
immediate reinstatement to his former or to a
substantially equivalent position without prejudice to his
seniority and other rights and privileges and make him
whole for any loss of' earnings suffered by reason of the
unlawful discharge In making Drudge whole, the
Respondent shall pay him a sum of money equal to that
which he would have earned as wages from the date of
said unlawful discharge to the date of the offer of
reinstatement, less any net earnings during said period.
Backpay shall be computed on a quarterly basis in a
manner consistent with the Board policy described in F.
W. Woolworth Company, 90 NLRB 289, with interest
thereon at 6 percent per annum computed in the manner
set forth in ISIS Plumbing & Heating Co., 138 NLRB 716.
I shall also recommend that the Respondent preserve and
make available to the Board or its agents, upon
reasonable request all pertinent records and data necessary
to analyze and calculate the amount of backpay due, if
any
Accordingly, upon the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
and pursuant to Section 10(c) of the Act, I hereby make
the following
RECOMMENDED ORDER
The Respondent Dorwood Rental Company, its
officers, agents, successors, and assigns, shall
1. Cease and desist from:
(a) Threatening employees with discharge if they refuse
to withdraw grievances filed with their
collective-bargaining representative.
(b) Discharging or otherwise discriminating against any
employee in regard to hire or tenure of employment or
any term or condition of employment for engaging in any
activity protected by Section 7 of the National Labor
Relations Act.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act, except to the
extent that those rights may be affected by an agreement
requiring membership in a labor organization as a
condition of employment as authorized in Section 8(a)(3)
of the Act
2. Take the following affirmative action which is
designed to effectuate the policies of the Act:
(a) Offer Max Drudge immediate and full reinstatement
to his former or substantially equivalent position without
prejudice to his seniority or other rights and privileges
previously enjoyed by him, and make him whole for any
loss of pay suffered by reason of his discriminatory
discharge in the manner set forth in this section of this
decision entitled "The Remedy."
(b) Post at its Toledo, Ohio place of' business copies of
the attached notice marked "Appendix.""' Copies of said
notice, on forms provided by the Regional Director for
Region 8, after having been duly signed by the official
representative of the Respondent. shall be posted
immediately upon receipt thereof, and shall 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
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
"In the event that this Recommended Order is adopted by the Board,
(c) Notify the Regional Director for Region 8, in
writing, within 20 days from the receipt of this Decision,
what steps the Respondent has taken to comply herewith."
the words "a Decision and Order " shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice . If the Board s
Order is enforced by a decree by a United States Court of Appeals, the
notice shall be further amended by the substitution of the words "a Decree
of the United States Court of Appeals Enforcing an Order" for the words
"A Decision and Order '
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 7, in writing, within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner 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
employees that:
This notice is posted pursuant to the Recommended
Order of the Trial Examiner issued after a trial in which
both sides had the opportunity to present evidence. The
Trial Examiner found that we violated the National Labor
Relations Act and has ordered us to inform our employees
of their rights.
The Act gives all employees these rights.
To organize themselves to form, join, or help unions, to
bargain as a group through representatives of their own
choosing, to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, to refuse to do any or all of these things.
We assure all of our employees that:
WE WILL NOT discharge or otherwise discriminate
against any employee in regard to hire or tenure of
employment or any term or condition of employment
because he has engaged in any concerted activity
protected by Section 7 of the National Labor Relations
Act.
WF WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees because they
filed grievances with their union representative or
because they exercise the rights guaranteed in Section 7
of the National Labor Relations Act, as amended,
except to the extent that those rights may be affected
by an agreement requiring membership in a labor
organization as a condition of employment as
authorized in Section 8(a)(3) of the Act
Wu wilt. offer Max Drudge immediate and full
reinstatement and will make him whole, for any loss of
pay he may have suffered by reason of the
discrimination against him.
DORWOOD RENTAL
COMPANY
(Employer)
Dated By
(Representative) (Title)
Note- Notify the above-named employee 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
DORWOOD RENTAL COMPANY 641
Training Service Act, as amended, after discharge from If employees have any question concerning this notice
the Armed Forces or compliance with its provisions, they may communicate
This notice must remain posted for 60 consecutive days directly with the Board's Regional Office, Federal Office
from the date of posting and must not be altered, defaced. Building, Room 1695, 1240 East Ninth Street, Cleveland,
or covered by any other material. Ohio 44199, Telephone 216-522-3715.