Duqal, Ltd.

National Labor Relations Board - Board Decisions

Apr 21, 1972

196 N.L.R.B. 511 (N.L.R.B. 1972)

DUQAL, LTD. 511
Duqal, Ltd. and Byron Scott Keen . Case 21-CA-10005
April 21, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On December 8, 1971, Trial Examiner Richard D.
Taplitz issued the attached Decision in this proceed-
ing. Thereafter, General Counsel filed exceptions and
a supporting brief, and Respondent filed cross-excep-
tions and a supporting 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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions, cross-
exceptions, and briefs and has decided to affirm the
Trial Examiner's rulings, findings, and conclusions
and to adopt his recommended Order, with the mod-
ifications and additions hereinafter set forth.
1. The Trial Examiner found that Respondent vio-
lated Section 8(a)(1) of the Act by threatening em-
ployee Keen with loss of employment because Keen
testified in favor of employee Taylor at an arbitration
proceeding and by threatening employee Gerhard
that he would have better working conditions if he
renounced a charge that had been filed with the
Board; and Section 8(a)(3) and (1) by refusing to dis-
patch Keen on April 6 and 7 because Keen had testi-
fied at the arbitration proceeding by refusing to
dispatch drivers Coffin, Gerhard, Claude Wingfield,
and Jerry Wingfield for approximately 2 weeks after
April 25 because they participated in a protected
strike precipitated by Respondent's failure to honor
the arbitration award in favor of Taylor. We agree. In
so finding we note that these findings are based on
credible testimony which in many instances was un-
disputed.
2. The Trial Examiner found that Respondent's
failure to dispatch Keen between April 14, 1971, and
May 13, 1971, was brought about because Keen had
processed a workmen's compensation claim against
his previous employer and that there was no evidence
in the record to warrant the inference that Respon-
dent was merely using the workmen's compensation
proceeding as a pretext for its actions with respect to
Keen. The General Counsel has excepted to these
findings and contends that Respondent's refusal to
dispatch Keen was motivated at least in part by
Keen's protected activities. We find merit in these
exceptions for the reasons set forth below.
Respondent is engaged in the business of transport-
ing cattle and chemical fertilizers. Respondent owns
18 trucks and employs 18 "regular" drivers to operate
them. In addition to the regular drivers, Respondent
employs five "extra board" drivers who fill in for the
regulars. Respondent and its predecessor, Vernon
Livestock Company, have been parties to collective-
bargaining agreements with Line Drivers Union Lo-
cal 224, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America
(hereinafter called the Union) since 1959. In accord-
ance with the grievance procedure established under
the current contract, an arbitration hearing was con-
ducted before the Southern California Joint State
Committee on April 5, 1971,1 on a grievance concern-
ing the discharge of employee Taylor. Taylor was dis-
charged on February 9 and his termination notice
stated that he had been discharged for dishonesty.
Taylor had purchased a cattle prod (hot shot) and
charged it to Respondent. Respondent took the posi-
tion that the cattle prod was not an authorized pur-
chase and consequently Taylor had been dishonest in
charging it to the Company. Keen, who was the only
other employee who testified at Taylor's hearing, tes-
tified that he had also purchased a cattle prod and
charged it to Respondent and was neither warned nor
disciplined. As a result of the evidence presented be-
fore it, the committee decided at the conclusion of the
hearing that Taylor should be put back to work on his
next regular shift with full seniority and compensated
for all time lost. Later that morning Keen called Re-
spondent to check on his driving assignment for the
day and L'Ecluse, Respondent's president and a part
owner, told Keen that he had cost the Company a lot
of money that day because of Taylor's hearing. There-
after, when Keen asked whether there would be work
for him, L'Ecluse answered, "No. There won't be, and
there probably won't be." The following day when
Keen was not called, he went to the yard to see if any
drivers were being dispatched before him. Keen asked
dispatcher Kennedy, a supervisor, why he had not
been dispatched, and Kennedy said that he didn't
know. Keen then noticed Jerry Wingfield getting
ready to leave and told Kennedy he was going to file
a "runaround" grievance.' Kennedy then changed his
story and said that Keen had been called but no one
was home. Keen replied that he had been home all
morning and had not received any phone calls. The
next day, April 7, Kennedy called Keen with a dis-
patch. Keen reported to the yard within a hour but
L'Ecluse asked Keen what he was doing there and
1 All dates ale in 1971 unless otherwise noted
2 In assigning drivers to work, Respondent rotates assignments in order to
equalize earnings. When a driver feels that another driver is being dispatched
out of turn he may file a runaround grievance and if successful will receive
the amount of money he would have received if he had been dispatched on
that date.
196 NLRB No. 80
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told him that they had called his house several times,
received no answer , and consequently replaced him
with another driver . At this point Keen went to the
union hall to file runaround grievances which were
thereafter settled in Keen 's favor . As noted above, the
Trial Examiner found that Respondent failed to dis-
patch Keen on April 6 and April 7 because of Keen's
testimony at Taylor's arbitration hearing , noting that
Respondent offered no explanation for its failure to
dispatch Keen on those dates , and noting also
L'Ecluse 's statement to Keen on April 5 that this testi-
mony had hurt the Company and there probably
would not be any work for Keen and the "cat and
mouse" game Respondent played with Keen on April
6 and 7.
Respondent dispatched Keen as a result of his filing
of grievances on April? and continued to do so until
April 14. On that date a hearing was held concerning
a workmen's compensation claim filed by Keen with
respect to a back injury Keen suffered in 1969 while
working for C & H Freightways. L'Ecluse was present
at this hearing , at which Keen testified that after driv-
ing for 2 or 3 hours he experienced pains in his back
which became quite severe and required that he stop
and rest for 15 to 20 minutes . Keen further testified
that while he had been able to drive for Respondent
since February 23, 1970, he felt that the injury would
prevent him from being employed by another freight
company which unlike Respondent required its driv-
ers to load and unload freight all day. That evening
Kennedy called Keen and told him that he didn't
have enough work for the regular men so he could not
dispatch Keen . Later that night regular driver Hud-
nall returned from a run and found that he was imme-
diately again being dispatched to take another truck
out. Hudnall called Kennedy and told him that he did
not have enough hours left to lawfully complete the
run under ICC regulations and asked whether Keen
could take the truck . Kennedy replied, "No. I can't do
that . It would get me in trouble , I have orders not to
dispatch Keen ." Keen was not dispatched between
April 14 and April 25? Thereafter, on April 17, Re-
spondent sent a warning letter to Keen and the Union
for Keen 's "failure to report for work" on April 14
despite the fact that Respondent had told Keen not to
report.
On April 25, the Union struck Respondent because
of Respondent's failure to abide by the arbitration
decision and return Taylor to work . Both regular and
extra board drivers participated in the strike which
was settled the following day. Thereafter all regular
drivers returned to work, but, with one possible excep-
3 Keen filed runaround grievances on April 15, 19, 21, 23, and 25. Respon-
dent despatched other extra board drivers ahead of Keen on four of those
dates . These grievances were later settled m Keen 's favor
tion, no extra board driver was dispatched until May
10. On April 27, when extra driver Coffin asked L'Ec-
luse if there was any work, he was told the extra board
would be off for approximately 30 days and that
"This is the way you want [it]. You want to get this
guy's job back. This is the way it is going to be." The
following day Keen asked L'Ecluse if the matter could
be straightened out so the extra drivers could return
to work. L'Ecluse told Keen that the only way to
straighten the matter out was for Keen to quit, that
Keen was a union man, a union agitator, and he of-
fered Keen $1,000 for his resignation. On May 10, the
first of the extra drivers returned to work. The next
day L'Ecluse remarked in the presence of several of
his drivers, "God damn union. If I keep Keen it will
cost me $50,000 and I can't afford it. It looks like I will
have to lay off the extra board again to keep Keen
from working."
We agree with the Trial Examiner's finding that
work was available for the extra drivers during the 2
weeks following the strike. We note that on several
occasions regular drivers came in and informed Su-
pervisor Kennedy that they could not be dispatched
under Federal regulations, but Respondent neverthe-
less sent them out illegally and the extra drivers were
not called. On one such occasion, when driver Lande-
ros complained to Kennedy that regular drivers were
being overworked, Kennedy explained that he had
instructions from L'Ecluse not to use the extra board.
In the circumstances outlined above it is clear that,
as found by the Trial Examiner, Respondent refused
to dispatch extra drivers Coffin, Gerhard, Claude
Wingfield, and Jerry Wingfield because of their par-
ticipation in the strike. But we are not persuaded, as
was the Trial Examiner, that Respondent's refusal to
dispatch Keen beginning April 14 and its offers to pay
Keen $1,000 for his resignation were motivated solely
by Keen's filing of his workmen's compensation
claim. L'Ecluse's antagonism to Keen's union mem-
bership and activities is clearly demonstrated by his
statements to Keen and other drivers, quoted above,
in which L'Ecluse referred to Keen as a union agitator
and linked Keen's grievances and other activities to
the Union. In addition, employee Fisher testified that
several months before the hearing in this proceeding,
conducted in September 1971, he overheard L'Ecluse
state, "If we could get rid of the union agitators down
there, it would be a good company to work for." L'Ec-
luse freely admitted that he has called his employees
union agitators on numerous occasions.
In its brief Respondent concedes that Keen was
"discriminated against" but contends that this dis-
crimination was based solely on lawful reasons; i.e.,
Keen's back injury and Respondent's concern about
safety. Thus, the issue is whether Respondent would
have refused to dispatch Keen between April 14 and
DUQAL, LTD. 513
May 13 and would have offered Keen $1,000 on two
occasions to quit his employment 4 had Keen not tes-
tified in Taylor's favor at the arbitration hearing on
April 5, had he not filed grievances when he felt other
drivers were being dispatched before him, and were he
not considered by L'Ecluse to be a union man and
union agitator.
When Keen applied for work with Respondent he
told Supervisor Steele that he had been on workmen's
compensation because of his back injury and that the
back injury involved a chipped vertebra. He was nev-
ertheless hired although Steele told Keen to omit any
mention of his back injury on the application .5 Be-
tween February 23, 1970, the date of Keen's hire, and
April 14, 1971, Keen appears to have satisfactorily
performed his duties for Respondent and there is no
evidence that his back injury impaired his ability to
drive safely. On January 22, 1971, Keen was given
what appears from the reCbrd to have been a thorough
physical examination at the Driver Testing Center in
Los Angeles, California. It is noted on the record of
that examination, which is in evidence, that Keen
suffered a back injury in 1969 that required hospitali-
zation and for which Keen received workmen's com-
pensation. At the conclusion of this examination the
examining physician certified that Keen was physical-
ly qualified to drive under Federal Motor Carrier
Safety Regulations.' As indicated above, Keen was
reinstated on May 13 and was subsequently promoted
to regular driving status. The Respondent asserts that
its actions involving Keen's layoff and the attempt to
buy Keen's job were solely motivated by its discovery
of Keen's disability and Respondent's concern over a
possible civil suit against Keen and Respondent in the
event Keen were involved in an accident caused by his
back injury. However, the only evidence in the record
showing that Keen's injury had any effect on his driv-
ing was Keen's own testimony that after driving for
2 or 3 hours he must stop and rest for 15 to 20 minutes
until the pain subsides. Another of Respondent's driv-
ers, Bussey, testified that he maintains the same prac-
tice and Keen testified, without contradiction, that a
fatigue break is required by Federal regulations. Nor
are we persuaded, as was the Trial Examiner, by
L'Ecluse's testimony that he is particularly sensitive to
individuals with back injuries because his wife has
trouble with her back and he feels that a backache
impairs a driver's ability to observe and react. We
note particularly that Respondent exhibited no sim-
ilar concern over the safety factors involved in its
requirement that its drivers drive long hours, taking
successive runs, contrary to Federal safety regula-
tions, at the time following the strike when Respon-
dent was overworking its regular drivers in order to
keep its extra board drivers, including Keen, out of
work. While we are cognizant of the necessity for
safety on the highways, we are satisfied, especially in
the ^ fight of the conclusions of the examining physi-
cian who certified Keen on January 22, 1971, as fully
qualified to drive in accordance with the Motor Car-
rier Safety Regulations, that Keen's physical condi-
tion did not constitute a driving hazard.
The foregoing circumstances provide in our view
firm support for the conclusion which we draw, that
Respondent's course of action in refusing to dispatch
Keen between April 14 and May 13, and in offering
on two occasions to pay Keen $1,000 for his resigna-
tion, was not motivated solely by concern for consid-
erations of driving safety but was prompted at least in
substantial part by antagonism to Keen's union and
concerted activities and was therefore violative of
Section 8(a)(3) and (1) of the Act.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, the Board will order Respon-
dent to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies
of the Act.
Having found that Respondent violated Section
8(a)(1) and (3) of the Act by refusing to dispatch
Byron Scott Keen between April 14 and May 13,
1971, and by refusing to dispatch Harold Coffin, Her-
man Gerhard, Claude Wingfield, and Jerry Wing
field for approximately 2 weeks after April 25, the
Board will order Respondent to make them whole for
any loss of earnings they may have suffered as the
result of such discrimination. The backpay for the
foregoing employees shall be computed in accordance
with the formula approved in F. W. Woolworth Com-
pany, 90 NLRB 289, with interest computed in the
manner and amount prescribed in Isis Plumbing &
Heating Co., 138 NLRB 716, 717-721. We shall also
order Respondent to preserve and make available to
the Board, or its agents, on request, payroll and other
records to facilitate the computation of backpay due.
4 As noted above , L'Ecluse offered Keen $ 1,000 to quit on April 28. On
May 6 Fenstermacher , Respondent 's labor relations representative , made the
same offer to Keen.
s According to the uncontradicted testimony of Keen whom the Trial
Examiner found to be a credible witness. Steele did not testify at the hearing.
6 49 C.F.R. 391. 41 -391.49. We note in this regard that Keen testified at
the workmen 's compensation hearing held April 14, 1971, that the condition
of his back had remained the same during the 3-month period between his
physical examination and that hearing.
AMENDED CONCLUSIONS OF LAW
Delete Conclusion 5 of the Trial Examiner's "Con-
clusions of Law" and substitute therefor the follow-
ing:
5. By calling Keen a union agitator and offering
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Keen $1,000 to quit his job, Respondent violated Sec-
tion 8(a)(1) of the Act.
6. By refusing to dispatch Keen on April 6 and
during the day of April 7 and between April 14 and
May 13 because Keen testified at an arbitration pro-
ceeding under a collective-bargaining agreement and
was considered by Respondent to be a union agitator,
Respondent violated Section 8(a)(1) and (3) of the
Act.
Delete Conclusion 8 of the Trial Examiner's "Con-
clusions of Law" and renumber the remaining conclu-
sions accordingly.
ORDER
pendix."7 Copies of said notice, on forms provided by
the Regional Director for Region 21, after being duly
signed by Respondent's representative, shall be post-
ed by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent,
Duqal, Ltd., Los Angeles, California, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening any employee with loss of employ-
ment because that employee testifies at an arbitration
proceeding under a collective-bargaining agreement.
(b) Threatening any employee that he will suffer
poor working conditions unless he renounces a charge
filed with the Board.
(c) Refusing to dispatch any employee because that
employee has testified at an arbitration proceeding
under a collective-bargaining agreement.
(d) Refusing to dispatch any employee because that
employee has participated in strike activity that is
protected under the Act.
(e) Offering to purchase an employee's job because
that employee is involved in protected activities or is
considered a union agitator.
(f) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Make whole employees Byron Scott Keen, Ha-
rold Coffin, Herman Gerhard, Claude Wingfield, and
Jerry Wingfield for any loss of earnings they may
have suffered by reason of the discrimination against
them, in the manner set forth in the section of this
Decision and Order entitled "The Remedy."
(b) 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 oth-
er records necessary to analyze the amount of back-
pay due under the terms of this Order.
(c) Post at its place of business in Los Angeles,
California, copies of the attached notice marked "Ap-
7 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had a chance to give
evidence, the National Labor Relations Board has
found that we violated the National Labor Relations
Act and has ordered us to post this notice.
The Act gives all employees these rights:
To engage in self-organization
To form, loin, or help unions
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all these things
except to the extent that membership in a
union may be required pursuant to a lawful
union-security clause.
WE WILL NOT do anything that restrains or
coerces employees with respect to these rights.
More specifically,
WE WILL NOT threaten any employee with loss
of employment because that employee testifies at
an arbitration proceeding under a collective-bar-
gaining agreement.
WE WILL NOT threaten any employee that he
will suffer poor working conditions unless he re-
nounces a charge filed with the Board.
WE WILL NOT refuse to dispatch any employee
DUQAL, LTD. 515
because that employee testifies at an arbitration
proceeding under a collective-bargaining agree-
ment.
WE WILL NOT refuse to dispatch any employee
because that employee participates in a strike
that is protected under the Act.
WE WILL NOT offer to purchase an employee's
job because that employee testifies at an arbitra-
tion proceeding under a collective-bargaining
agreement or is considered a union agitator.
WE WILL make whole Byron Scott Keen, Ha-
rold Coffin, Herman Gerhard, Claude Wingfield,
and Jerry Wingfield by paying them any money
they lost as a result of our refusal to dispatch
them because of their protected activities, with
interest at 6 percent.
DUQAL, LTD.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Eastern Columbia Building, 849
South Broadway, Los Angeles, California 90014,
Telephone 213-688-5200.
CHAIRMAN MILLER, dissenting in part:
I do not find in the record sufficient evidence to
warrant reversing the Trial Examiner's findings, and
I would therefore adopt his findings, conclusions, and
recommendations in their entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ , Trial Examiner : This case was tried at
Los Angeles , California , on September 21 and 22 , 1971.1
The charge and amended charge were filed by Byron Scott
Keen , an individual , on May T2 and June 28 , respectively,
and the complaint and amendment to complaint were is-
sued on June 30 and September 10, respectively . The prima-
ry issues are whether Duqal , Ltd., herein called
Respondent : (a) violated Section 8(a)(3) and ( 1) of the Act
by refusing to dispatch Keen as a truckdriver because Keen
had testified at a discharge grievance hearing on behalf of
another employee ; (b) violated Section 8(a)(3) and ( 1) of the
Act by refusing to dispatch Keen and four other truck-
1 All dates are in 1971 unless otherwise specified.
drivers because they participated in a strike to require Re-
spondent to honor an arbitration award; and (c) violated
Section 8(a)(1) of the Act by threatening Keen and employ-
ee Herman Gerhard because of their protected activity and
by offering Keen $1,000 to quit.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross -examine
witnesses , to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel and Respondent.
Upon the entire record of the case and from my observa-
tion of the witnesses and their demeanor, I make the follow-
ing:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a California limited partnership, with its
principal place of business at 3308 Bandini Boulevard, Los
Angeles, California, is engaged in the business of transport-
ingby truck cattle and chemical fertilizers. Respondent an-
nually provides services valued in excess of $50,000 directly
to customers located outside the State of California and
annually purchases goods valued in excess of $50,000 which
are shipped from points located outside of California direct-
ly to its Los Angeles, California, place of business. Respon-
dent is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act .2
II. THE LABOR ORGANIZATION INVOLVED
Line Drivers Union Local 224, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, herein called the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. The setting
Chester W. L'Ecluse is a part owner and the president of
Respondent .3 As the manager of both Respondent and
Respondent's predecessor company, L'Ecluse has been a
party to collective-bargaining agreements with the Union
since 1959. The current contract, effective from April 1,
1970, to September 30, 1973, is entitled The LivestoclCWage
Agreement (California and Arizona). It is a supplement to
the Western States Area Master Agreement.
Respondent owns 18 trucks and employs 18 regular driv-
ers to operate them. In addition, Respondent employes five
"extra board" drivers who fill in for the regular drivers when
the regular drivers are for any reason unable to take a run.
The regular drivers are permanently assigned to a particular
truck while the extra board drivers are not. All drivers are
dispatched on the basis of a "money board." The money
board lists the earnings that each driver made or could have
made if he had taken all the runs to which he had been
dispatched. In assigning drivers to work, Respondent at-
2 Respondent , Duqal, Ltd., was formerly known as Vernon Livestock
Company The drivers who had been employed by Vernon continued their
employment with Duqal and drove the same trucks which Duqal took over
from Vernon . Duqal remained at the same address and generally engaged in
the same business.
3 Respondent's answer adnuts, and I find , that he is a supervisor within the
meaning of the Act.
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tempts to equalize the money board so that drivers with less
earnings are sent out first . Seniority is not used to determine
the order of dispatch but is only looked to in determining
which driver should be raised from extra board to regular
status when an opening exists among the regular drivers.
Respondent and the Union have a well -established griev-
ance procedure which has often been resorted to over the
years . On April 5 , pursuant to the provisions of the contract,
an arbitration hearing was conducted before the Southern
California Joint State Committee on a grievance that pro-
tested the discharge of truckdriver Everett E . Taylor. The
General Counsel contends that extra board truckdriver By-
ron Scott Keen , the Charging Party, was refused dispatch by
Respondent because he testified on behalf of Taylor in that
proceeding.
2. Keen 's participation in the arbitration proceeding and
Respondent 's reaction
a. The facts
Taylor was discharged on February 9. He was given a
termination notice which stated that the discharge was for
dishonesty . Taylor had purchased a cattle prod (referred to
as a hot shot) on the road and had charged it to Respondent.
A hot shot is an electrically charged stick that is used to
make it easier for the driver to load and unload cattle.
Respondent took the position that the hot shot was not an
authorized purchase and that therefore Taylor had been
dishonest in charging it to the Company . Taylor filed a
grievance against his discharge which ultimately led to the
hearing before the Southern California Joint State Commit-
tee on April 5. Kenneth Fenstermacher , a labor relations
consultant who has represented Respondent for the past 4
years, was present throughout the arbitration hearing as a
representative of Respondent . During part of the hearing,
L'Ecluse was also present . Only one employee , other than
Taylor himself , testified on Taylor's behalf . That was Keen,
who testified that he had also bought a hot shot on the road
and charged it to the Company and that nothing had come
of it . He also testified that other drivers had charged items
on the road to Respondent without receiving warning letters
or discharges . Though Keen was the only other employee to
testify , several other drivers did submit statements in letter
form which were favorable to Taylor.
The arbitration hearing took place in the morning of
April 5. The extra board drivers , such as Keen , usually
receive their assignments by telephone before noon each
day. Just before noon , Keen called Respondent and spoke
to L'Ecluse to check on his assignment . L'Ecluse told Keen
that Keen had cost the Company a lot of money that day
because of Taylor's hearing . Keen denied that he had cost
the Company money and told L'Ecluse that the only reason
he had testified was to keep himself clear because he had
done the same thing that Taylor had been terminated for.
L'Ecluse replied , "Well, it has been done now . What do you
want ." Keen asked whether there would be work for him
that day and L'Ecluse answered, "No. There isn't any work
for you , and there probably won 't be any."4
Keen did not work on April 5 . On April 6 , Keen, in the
company of his wife , waited until noon at his home for a
dispatch call from Respondent . The usual method of dis-
patch was for Respondent 's dispatcher to call the drivers
4 These findings are based on the credited testimony of Keen L'Ecluse did
not contest that testimony , but merely averred that he did not know whether
he had a telephone conversation with Keen on April 5 and that to the best
of his recollection he had "not made any threats per se to any employee "
with assignments before noon each day. Keen did not re-
ceive a calls At noon, Keen took his wife to his mother-in-
law's and then went to the company yard to see if any extra
board drivers were being improperly dispatched ahead of
him. At the time , Stan Kennedy was the dispatcher .6 Keen
asked Kennedy why he wasn t dispatched and Kennedy
replied that he didn't know. Keen then saw Jerry Wingfield,
another driver, getting ready to leave, and he told Kennedy
that he was going to file a grievance on the ground that he
should have been sent out before Wingfield. Such a griev-
ance is called a runaround. Kennedy then said that Keen
had been called but no one was home. Keen replied that he
had been home all morning and had not received any phone
calls. Kennedy repeated that Keen had been called and said
that they had to go down the list to get someone else?
On the morning of April 7, Kennedy called Keen with a
dispatch. Keen reported at the terminal less than an hour
after he was called even though the drivers are allowed 2
hours to report for work. When he arrived at the terminal,
L'Ecluse asked Keen what he was doing there and Keen
replied that he was reporting for work. L'Ecluse then said
that he (L'Ecluse) had called Keen's house several times and
not gotten an answer so that he had to get another driver.
Keen said that Kennedy had just finished talking to him on
the phone and L'Ecluse replied that no one was home when
he called. Keen then went to the union hall and filed a
runaround grievance for both April 6 and 7. From the union
hall, Keen, together with Earl Wimmer, the Union's busi-
ness representative, went back to Respondent' s terminal.
Wimmer spoke to L'Ecluse and Respondent's labor rela-
tions representative, Fenstermacher, and it was agreed that
Keen would be put back to work that night. Keen was
dispatched that evening. He withdrew the runaround griev-
ance for April 7, as he was sent out that evening, and subse-
quently he won the April 6 runaround grievance and was
paid the amount of money he would have received if he had
been dispatched on that date.
Between April 7 and 14, Keen did not have any further
difficulty with dispatch.
b. Conclusions
I find that Keen was refused dispatch on April 6 and
during the day of April 7 because of the testimony he gave
at the Taylor arbitration hearing. Shortly after the hearing,
L'Ecluse, in the context of saying how Keen's testimony had
hurt the Company, told Keen that there wasn't any work for
him and there probably wouldn't be any. The following day,
April 6, Respondent began playing a cat and mouse game
with Keen. Keen did not receive a phone call giving him a
dispatch on that date and, when he went to the terminal,
Dispatcher Kennedy told him that he didn't know why he
(Keen) was not being dispatched. When Keen said that he
was going to file a grievance, Kennedy switched his position
and said that Keen had been called. Kennedy also acknowl-
edged to Keen that there was work available for him on that
date by telling him that they had to go down the list to get
someone else. The cat and mouse game continued on the
following day. Kennedy on that day called Keen for a dis-
patch but L'Ecluse refused to allow Keen to work with the
5 This finding is based on the uncontested and credited testimony of both
Keen and his wife
6 Dispatcher Kennedy, and before him Dispatcher Steele, were supervisors
within the meaning of the Act. Steele was in complete charge of Respondent
when L'Ecluse was away for extended periods and had hired a number of
the employees When Kennedy was hired , he was given complete charge the
same as Steele
r These findings are based on the uncontradicted and credited testimony
of Keen Kennedy did not testify
DUQAL, LTD. 517
excuse that Keen was not home when he (L'Ecluse) called.
That excuse was palpably frivolous in the face of the fact
that the dispatcher had just an hour before called Keen and
told him to report for work. Respondent offered no explana-
tion for its conduct with regard to its refusal to dispatch
Keen on April 6 and during the day of April 7 and, in the
absence of any adequate explanation, the inference is war-
ranted that the refusal to dispatch was casually related to
Keen's testimony at the arbitration hearing. L'Ecluse's
statement to Keen shortly after the arbitration hearing, in
the context of a discussion of that hearing, to the effect that
there probably wouldn't be any future work for Keen not
only explained Respondent's conduct on April 6 and 7 but
was in itself a threat that Keen would not be dispatched
because he gave testimony at the Taylor arbitration hearing.
Respondent began dispatching Keen only upon the inter-
vention of the Union on the evening of April 7.
Keen was engaging in activity protected by Section 7 of
the Act when he appeared as a union witness at the Taylor
arbitration. By refusing to dispatch Keen on April 6 and
during the day of April 7, Respondent was both interfering
with such activity in violation of Section 8(a)(1) of the Act
and was discouraging membership in the Union in violation
of Section 8(a)(3) of the Act. Osage Mfg. Co., 173 NLRB
458, 462. I also find that Respondent threatened Keen with
loss of employment in violation of Section 8(a)(1) of the Act
on April 5 by telling him that there probably wouldn't be
any work for him after he testified at the Taylor grievance.
3. Keen's workman's compensation hearing and
Respondent's reaction
a. Facts
Keen was employed by Respondent on February, 23,
1970. In 1969, while he was working for another trucking
company , C and H Freightways , he was involved in a truck-
ing accident in which he suffered a back injury .8 The hear-
ing on Keen's workman 's compensation claim did not take
place until April 14, when Keen was employed by Respon-
dent . L'Ecluse was subpenaed to appear at that hearing by
Transport Indemnity Company , who was defending for C
and H Freightways . That insurance company also insures
Respondent for workman 's compensation . At the hearing,
Keen testified that when he drove over a certain number of
hours without a rest he suffered substantial back pains.
While at the hearing , L'Ecluse spoke to the attorney for the
insurance company who told -him that a prudent busi-
nessman would never put Keen back on a truck . Later the
same day , L'Ecluse discussed the matter with his labor rela-
tions representative , Kenneth Fenstermacher . Fenster-
macher told L'Ecluse that he should not use Keen again
until such time as they had arranged for a physical examina-
tion to see if he was qualified to perform his duties.
The workman 's compensation hearing took place be-
tween 1:30 and 3 p .m. on April 14. Between 10 and 11 a.m.
that morning , Dispatcher Kennedy called Keen and gave
him an assignment but told him that it wasn 't certain which
truck he would take . Later that morning , Keen called Ken-
nedy back but Kennedy still didn 't know which truck was
to be used . In yet another phone conversation , Keen said
that he would be at the terminal at 3:30 and by that time
they should know which truck he was to use. Shortly after
the hearing was over, about 3:15 p.m., Keen called Kennedy
once again and Kennedy said that he was still working on
'clock that evening,the assignment of the truck . About 5 o
Kennedy called Keen and told him that he didn't have
enough work for the regular men so that Keen would not
go out . About 11 p.m. that evening , Keen went to the termi-
nal. At midnight, Red Hudnall , one of the regular drivers,
returned from a trip and found a note for him to take
another truck out. Hudnall told Keen that he (Hudnall)
didn't have the hours necessary to make the other trip (that
he would have exceeded the lawful number of driving hours
allowed under ICC regulations). Hudnall told Keen that he
would see if he could arrange to have Keen take the load
instead of him. Hudnall then called Dispatcher Kennedy,
told him that he was out of hours, and asked whether Keen
could take the dispatch . Kennedy replied , "No. I can't do
that . It would get me in trouble, I have orders not to dis-
patch Keen."
From that time until May 13 , Keen was not called to
work. Keen filed runaround grievances on April 15, 19, 21,
23, and 25 . Subsequently, after negotiation between Re-
spondent and the Union , Respondent gave Keen a check
for $154 .09 in payment of those grievances . However, Keen
did not believe the amount to be adequate and never cashed
the check . The last grievance was dated April 25, because
that was the day that Keen , along with the other drivers,
went out on strike against Respondent . Respondent's refus-
al to dispatch Keen , as well as the other extra board drivers,
after the strike ended on April 26 is discussed below . At this
point , we are concerned with the refusal to dispatch Keen
between April 14 and 25.
Though Respondent sent a warning letter to Keen and
the Union about April 17 because of Keen 's alleged failure
to report for work on April 14 , it appears that the warning
letter was merely a smoke screen . Keen called Earl Wim-
mer, the union business representative, about the warning
letter and explained to him what had happened at the
workman's compensation hearing . Wimmer then called Re-
spondent to see whether he should protest the warning let-
ter. He spoke to dispatcher Kennedy and asked Kennedy
what the warning notice was about and also why they
weren't calling Keen to work . Kennedy told him that he had
orders not to use Keen and Wimmer replied that there
would be more runaround grievances filed . After that con-
versation , Wimmer called Keen and told him that Respon-
dent didn 't have to work him if they didn't want to, but they
would have to pay him even if he didn't work . About May
11, L'Ecluse asked Keen to take another driver safety exam-
ination at the driver testing center. After conferring with the
Union , Keen declined to take the test on the ground that he
had already taken one the previous January. Wimmer ac-
knowledged that he might have had a conversation with
L'Ecluse or Fenstermacher about Keen taking another
safety examination and he specifically remembered that
L'Ecluse said that Keen wasn t dispatched because he was
afraid of his driving.
As is set forth more fully below , L'Ecluse made it clear
to Keen and to a number of other drivers that he was not
putting Keen to work because he thought Keen was suing
another trucking company for $50,000 (the workman's com-
pensation proceeding) and that he would lay off the entire
extra board if necessary in order to keep Keen from work-
8 On his application for employment with Respondent dated February 9, ing.
Keen indicated that he had been on workman 's compensation and that he
had suffered a head and shoulder injury. In his report at the driver testing been hospitalized and indicated that he had been on workman's compensa-
center, dated January 22, 1971, Keen listed a back injury for which he had tion for 3 months.
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. Conclusions
I find that Keen was refused dispatch from April 14
throu 25 (the date of the strike) because Keen had pro-
cessed his workman's compensation suit against C and H
Freightways . There is no evidence in the record to warrant
the inference that Respondent was merely using the
workman 's compensation proceeding as a pretext for ref-
using to dispatch Keen because Keen had testified at
Tayror 's ggrievance . Keen had been put back to work 2 days
after the 'Taylor grievance hearing at the insistence of the
Union and there apparently was no trouble between then,
April 7 , and April 14 , the date of the workman 's compensa-
tion hearing . The evidence does not establish a causal con-
nection between Keen's activities with regard to Taylor and
the refusal to dispatch after the workman's compensation
hearing.
The Board , through Section 8(a)(4) of the Act, guards
access to its own processes . The Board also holds that access
to grievance machinery established under a collective-bar-
gaining agreement is protected by the Act. Osage M{g. Co.,
supra. Even the mere filing of a claim under a col ective-
bargaining contract is prote.qted . Bunney Bros. Construction
Co., 139 NLRB 1516. However, the Board has declined to
hold that an employee is engaging in protected activity
when he files a claim under laws other than the National
Labor Relations Act even though those laws are keyed to
protecting employees . In Hunt Tool Co., 192 NLRB No. 29,
an employee was discharged because he brought a suit for
on-the-job injuries against his employer under t he Jones Act
and/or the Longshoremen 's and Harbor Worker's Compen-
sation Act. The General Counsel argued that those two acts
resulted , at least in part , from the concerted efforts of em-
ployees acting through their labor organizations in lobbying
for those laws and that the employee's suit was analogous
to a protected claim under a collective -bargaining agree-
ment . The Board specifically rejected the General Counsel's
argument holding that : "the filing by a single employee of
a purely personal claim under the Jones Act and/or the
Longshoremen 's and Harbor Worker's Compensation Act
is far different from his filing a claim under a collective-
bargaining agreement and it is not the Board 's position that
all activities , no matter how remote, rising out of concerted
activities are protected ." The complaint was dismissed. I
believe that the Hunt Tool Company case is dispositive and
I therefore must find that Keen was not engaging in protect-
ed activity when he processed his workman 's compensation
claim . As I have found that Keen was refused dispatch from
April 14 through 25 because he processed his workman's
compensation claim , I must further find that Respondent
did not violate Section 8 (a)(1) or (3) of the Act by refusing
to dispatch Keen for that reason.
4. The strike and Respondent's refusal to dispatch the
extra board drivers
a. Facts
The hearing in the Everett Taylor discharge grievance
resulted in a decision by the Southern California Joint State
Committee that Taylor be returned to work on his next
regular shift with full seniority and that he be compensated
for all the time lost? Respondent never did put Taylor back
to work in spite of the arbitration decision. 10 At 10:30 a.m.
9 The record does not indicate the date of this decision
10 Respondent had no explanation for its failure to obey the arbitration
decision except for L'Ecluse's testimony that he terminated Taylor and laid
on April 25, the Union struck Respondent because of
Respondent's failure to follow the decision in the Taylor
arbitration award. Both the regular and extra board drivers
participated in the strike and a picket line was established.
On the afternoon of April 26, L Ecluse and Fenstermacher
met with Wimmer and the strike was settled with L'Ecluse's
agreement that Taylor would be put back to work. The
picket line was then lifted. All of the regular drivers then
went back to work. However, with the possible partial excep-
tion of Claude Wingfield, none of the extra board drivers were
dispatched from that time until on or after May 10."
The extra board drivers were Harold Coffin, who was
dispatched for the first time after the strike on May 10,
Herman Gerhard, who was dispatched on May 11, Keen,
who was dispatched on May 13, and Claude and Jerry
Wingfield, who were dispatched at an undisclosed date after
the strike. Regular driver Fred Landeros, who was em-
ployed in 1961, credibly testified that, other than the 2
weeks after the strike, there was never a time when all of the
extra board drivers were without work. L'Ecluse made a
number of statements to drivers that explained the reason
for his refusal to dispatch the extra board drivers.
Harold Coffin is an extra board driver. Prior to the strike,
he worked about 4 days a week. When the strike ended, he
was not dispatched and on April 27 he called L'Ecluse and
asked him if there was any work. L'Ecluse said that they
would be off for approximately 30 days and when Coffin
replied, "really?" L^Ecluse said, "This is the way you want
it. You want to get this guy's job back. This is the way it is
going to be." Coffin replied that he was not tied in with
Taylor and that he had only done what the Union told him
to do. Coffin then asked whether he could drive for L'Ecluse
if he threw away his union card and L'Ecluse answered that
he could not. L'Ecluse also told him that "You could have
come down and broke the guy' s arm ." On a number of
occasions thereafter, Coffin called to see if there was work
and L'Ecluse or one of the dispatchers told him that there
was not.12
Though L'Ecluse's statements to Coffin indicate that the
Respondent refused to dispatch the extra drivers because of
their strike to have Taylor reinstated, L'Ecluse made state-
ments to other employees which indicated a second reason.
On April 28, Keen and L'Ecluse had a conversation alone
in L'Ecluse's office. Keen asked L'Ecluse whether there was
any way that they could straighten the matter out so that the
men on the extra board below him could get back to work.
L'Ecluse replied by accusing Keen of suing a company for
$50,000, which Keen denied. L'Ecluse then said that Keen
had better talk to his lawyer because he understood that
Keen was suing a company for $50,000. L'Ecluse added that
there was no way to straighten the matter out, that Keen was
a union man and a union agitator, and that he would give
Keen $1,000 that morning if Keen would quit. Keen replied
that it was worth $5,000 and L'Ecluse said that he didn't
think so. Once again, Keen asked whether there was any
way to straighten it out so that the other men could get back
to work and L'Ecluse replied that they could work it out
only if Keen quit. Keen said that L'Ecluse was starving out
four good men just to get to him and Taylor, and L'Ecluse
replied that there was no way except for him to quit.
him off technically and legally according to the grievance machinery when
the committee decided that Taylor should go back to work.
11 Extra board driver Claude Wingfield testified that he was not sure but
he believed he pulled a load or two after the strike . He further testified that
he did not work regularly following the strike and that during that time he
pulled loads for other companies
12 These findings are based on the credited and uncontradicted testimony
of Coffin
DUQAL, LTD. 519
L'Ecluse repeated the same theme in a conversation that
he had with regular drivers Bob Williams, Clyde Bussey,
and Hudnall on May 11, which was the day after the first
of the extra board drivers returned. At that time, Williams
said to L'Ecluse, " ... can I take my vacation now that the
extra board is back working?" L'Ecluse replied, "God damn
union ... If I keep Keen, it will cost me $50,000 and I can't
afford it .... It looks like I will have to lay off the extra
board again to keep Keen from working.... You can't have
your vacation now."
On May 13, the Union, through Wimmer, reentered the
picture. Wimmer called L'Ecluse and told him that there
would be a strike unless Keen was put back to work right
away. Later that day, Keen was dispatched.
Work was available for the extra board drivers during the
2 weeks after the strike when they were not dispatched.
Normally, if a regular driver came back from a run out of
hours, an extra board man took the truck out for the next
run. However, a number of drivers who came in after using
up the maximum amount of hours they were allowed under
ICC regulations were sent out for additional runs during
that period without the extra board drivers being called.
Thus, on May 5, regular driver Lonnie Steele returned from
a run with no more hours that he could legally drive and he
told that to Kennedy. Kennedy told him to take the next run
any way. On April 27, extra board driver Jerry Wingfield
requested a driving assignment from Kennedy and Kenne-
dy replied that Wingfield could not be dispatched until the
deal was straightened out. On May 6, regular driver Lonnie
Steele asked Kennedy for a day off and Kennedy replied
that he couldn't have it because there wasn't anyone else to
drive the truck. Regular driver Fred Landeros had a similar
experience when he came back out of hours and- asked
Kennedy why they weren't using extra board drivers. Ken-
nedy replied that he had instructions not to use the extra
board. On another occasion, Landeros complained to Ken-
nedy that the regular drivers were being overworked be-
cause the extra board wasn't being used, and Kennedy
replied that he had to follow L'Ecluse's instructions.
Though L'Ecluse testified that price cutting in his indus-
try had caused him to turn down certain business tempo-
rarily and that other business had dropped off, he did not
contend in his testimony that that was the reason that the
extra board drivers were not working during the 2 weeks
after the strike.
second reason for not dispatching the extra board drivers
after the strike. After the workman's compensation hearing,
Respondent did not want to dispatch Keen but it was in a
position where it was subject to the filing of runaround
grievances when Keen was skipped for dispatch. By refusing
to dispatch the entire extra board, Respondent could not be
accused of failing to dispatch Keen in proper order with
respect to the other extra board drivers. i find that the
second reason that Respondent had for not dispatching the
extra board drivers after the strike was to cover up its refusal
to dispatch Keen.
(2) The failure to dispatch Keen after the strike
The Board has often held that if a discharge is even partly
motivated by the union activity of a discriminatee, it is a
violation of the Act whether or not there exists other valid
reason for the discharge . Branthaven, Inc. d/b/a Hospitality
Home, 192 NLRB No. 159 . As said by the court of appeals
in N.L. R.B. v. Whitin Machine Works, 204 F.2d 883 ((C.A.
1, 1953):
In order to supply a basis for inferring discrimination,
it is necessary to show that one reason for discharge is
that the employee was engaging in protected activity.
It need not be the only reason but it is sufficient if it
is a substantial or motivating reason , despite the fact
that other reasons may exist.
In the instant case I am unable to find that Keen 's participa-
tion in the April 25 strike was a substantial motivating
reason for Respondent 's failure to dispatch him between the
time of the strike and May 13. Keen was out of work before
the strike and he would have continued in the same status
whether or not the strike had taken place. After the
workman 's compensation hearing on April 14, Respondent
would not put him back to work and this position continued
until the Union threatened to strike on May 13. In such
circumstances , I do not believe it can be fairly said that the
April 25 strike was one of the causative motivations for the
failure to dispatch Keen . The failure to dispatch Keen from
April 14 through May 13 was causally connected with
Keen's processing of his workman 's compensation claim.
As I found that Keen's action in that regard was unprotect-
ed by the Act , I must also find that Respondent 's failure to
dispatch Keen during the entire period did not constitute a
violation of Section 8(a)(1) and (3) of the Act.
b. Conclusions
(1)The reasons for the failure to dispatch the extra board
drivers after the strike
The evidence set forth above established that there was
work for the extra board drivers during the 2 weeks after the
April 25 strike and the statements made by L'Ecluse to the
drivers establishes the reasons why the extra board drivers
were not dispatched. On the basis of those statements, with
particular reference to the statements L'Ecluse made to Cof-
fin on April 27, I find that the extra board drivers were not
dispatched after the end of the strike because Respondent
was angered by the attempt of the drivers through the strike
to force the reinstatement of Taylor. Though the regular
drivers also participated in the strike, it would have been
impractical for Respondent to lay them off also because it
would have had no drivers to operate the trucks. By laying
off only the extra board, it could punish the regular drivers
by overworking them and the extra board drivers by not
giving them any employment. I also find on the basis of
L'Ecluse's statements to employees that Respondent had a
(3)The failure to dispatch extra board drivers Coffin,
Gerhard, C. Wingfield, and J. Wingfield after the strike
In his conversation with extra board driver Coffin on
April 27, L'Ecluse in effect acknowledged that the extra
board drivers were not being dispatched because they struck
to get Taylor his job back. The fact that L'Ecluse also was
refusing to dispatch those drivers in order to avoid the need
to use Keen, who had processed the workman's compensa-
tion case, does not alter the conclusion that a substantial
motivating reason for the failure to dispatch extra board
drivers Harold Coffin, Herman Gerhard, Claude Wingfield,
and Jerry Wingfield was their participation in the strike of
April 25. The strike was both a concerted and a union
activity.
The complaint alleges that the strike was a protest against
Respondent's unfair labor practices and was therefore an
unfair labor practice strike. The object of the strike was to
secure compliance with the arbitration award which rein-
stated Taylor after Respondent had, without any real at-
tempt at an explanation, refused to honor the award.
However, the complaint does not allege that the failure to
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reinstate Taylor was an unfair labor practice and, therefore,
even if I could reach the somewhat questionable conclusion
that the Respondent 's action was not merely a breach of
contract but was an unfair labor practice , I could make no
finding of a violation in that regard . As I cannot find that
Respondent violated the Act by refusing to honor the arbi-
tration award , I am also unable to find that the union strike
to protest that refusal was an unfair labor practice strike.
However, that does not prevent a finding that the employees
who participated in the strike were economic strikers and
were, therefore , engaging in concerted and union activities
protected by the Act.
Employees who strike in support of economic demands
are engaging in concerted activity within the meaning of
Section 7 of the Act. N. L. R. B. v . United States Cold Storage
Corporation, 203 F .2d 924, 927 (C .A. 5, 1953), cert . denied
346 U .S. 818. An employer violates Section 8(a)(1) and (3)
of the Act if he discriminates against employees who engage
in concerted and union activities . Hilltop Van and Storage
Company, 182 NLRB 1004 , San Juan Lumber Company,
154 NLRB 1153, enfd . on other grounds 367 F.2d 397 (C.A.
9, 1966). However , in certain circumstances strike activity
can lose the protection afforded under the Act. In Arlan s
Department Store of Michigan Inc., 133 NLRB 802, 808, the
Board held:
A contract grievance rocedure with accompanying
no-strike , no-lockout clauses, constitutes the contract-
ing parties self-created judicial machinery for resolving
the inevitable frictional disputes arising from the day-
to-day administration of labor relations. It represents
a civilized substitution for force in the settlement of
such disputes beneficial to all parties involved in such
disputes. We believe that resort to such machinery for
the settlement of labor controversy should be encour-
aged by a public policy . We can perceive no public
policy served by a holding that the kind of dispute
involved in this case is exempt from the coverage of the
contract grievance procedure and may properly be re-
solved by a test of economic strength.
In Dubo Manufacturing Corporation, 148 NLRB 1114, enfd.
353 F .2d 157 C .A. 6, 1965), the Board extended that doc-
trine even further by coming to the same conclusion even
when no express no-strike clause existed in a contract which
contained a mandatory grievance and arbitration proce-
dure . The Board held:
... we find that the walkout herein was unprotected
activity because it was in violation of the collective-
bargaining agreement Providing for the settlement of
disputes exclusively and finally by compulsory arbitra-
tion . A decision to the contrary would frustrate the
basic policy of national labor legislation which is to
promote a peaceful arbitral process as a substitute for
an older regime of industrial conflict.
The only contract offered in evidence in this proceeding
was the Livestock Wage Agreement . That contract provides
for the establishment of a grievance machinery committee
but does not give details concerning arbitration procedures.
It does not contain a no-strike clause . The Western States
Area Master Agreement to which the Livestock Wage
Agreement is a supplement was not offered or introduced
in evidence . However , the testimony of both the Respon-
dent and union witnesses establishes that there was a griev-
ance procedure which terminated in an arbitration award.
The parties followed that grievance procedure with regard
to Taylor's discharge and the result was an arbitration
awarddirecting Respondent to reinstate Taylor . The Union
faithfully followed the preferred route for the resolution of
disputes , the grievance procedure . Respondent nullified the
effectiveness of that procedure by arbitrarily failing to abide
by the arbitration award. The breakdown of the arbitration
procedure must therefore be attributed to Respondent's
Failure to abide by the award rather than to the Union's
strike in reaction to Respondent's abrogation of that proce-
dure. The cases cited above that limit the right to strike
because of the existence of a viable grievance procedure are
therefore inapposite. The Union followed the grievance pro-
cedure but Respondent's conduct prevented it from work-
ing. In San Juan Lumber Company, supra, the Board found:
As the Union had thus in effect exhausted the griev-
ance procedure, we find for this further reason that the
employees ' strike action was not in breach of the con-
tractual no strike clause.
I find that the strike engaged in by Coffin, Gerhard, C.
Wingfield, and J. Wingfield on April 25 was a protected
concerted and union activity, that Respondent refused to
dispatch those employees for work for approximately 2
weeks following the strike because they had engaged in that
protected activity, and that by such conduct Respondent
violated Section 8(a)(3) and (1) of the Act.
5. Respondent 's offer of $ 1,000 to Keen to quit
a. Facts
As already noted, L'Ecluse offered $1,000 to Keen to quit
on April 28 , when Keen asked whether there was any way
to resolve the matter so that the extra board drivers could
go back to work. On May 6, Wimmer, together with Taylor,
approached Fenstermacher and Wimmer said that Taylor
would voluntarily quit for $3,500 . Wimmer asked Fenster-
macher to relay the offer to L'Ecluse . There were further
discussions that day when the offer was reduced to $1,500.
That evening, Fenstermacher and Taylor met with L'Ecluse
and L'Ecluse offered Taylor $1,000 to quit. Taylor accepted
and received checks totaling $1,000. Later that evening,
L'Ecluse told Fenstermacher to make the same offer to
Keen . Fenstermacher then spoke to Keen and offered him
$1,000 to quit . Keen said that he wouldn 't take less than
$5,000.
b. Conclusions
I do not believe that the evidence warrants the inference
that Keen was offered the $1,000 to quit either because of
his testimony at the Taylor grievance hearing or because he
engaged in the strike . When L 'Ecluse first offered him the
$1,000 on April 28, it was in the context of L'Ecluse's state-
ment that he was concerned about Keen's suing another
company . Keen 's strike activity was no different than that
of the other extra board drivers who were not offered money
to quit . L'Ecluse 's statements to Keen on April 28 indicate
and I find that the $1,000 offer was made because L'Ecluse
didn't want to have Keen in his employ after Keen had
processed the workman's compensation claim.
As Respondent's offers of money to Keen were keyed to
Keen 's unprotected activity in processing his workman's
compensation claim and the General Counsel has not estab-
lished by a preponderance of the credible evidence that the
offers were motivated by Keen's protected activities or by
antiunion considerations , I find that Respondent did not
violate the Act by offering Keen $1,000 to quit. Vernon
Livestock Co., 172 NLRB 1805.
DUQAL, LTD. 521
6. L'Ecluse's alleged threat to Gerhard lished by a preponderance of the evidence that Respondent
violate dythe Act.
a. Facts
The amended charge in Case 21-CA-10005 alleges in
part that Gerhard was discriminated against because of his
protected activities. That charge was served by mail on
Respondent on June 28. Shortly thereafter, L'Ecluse ap-
proached Gerhard and asked him what the char gge was
about. Gerhard replied that he didn't know what L'Ecluse
was talking about.-L'Ecluse then said that he had seen Ger-
hard talking with Keen in the yard. Gerhard insisted that he
had nothing to do with the charge. L'Ecluse told Gerhard
that if he had nothing to do with the charge, he should write
a letter to a Mr. Cooper, who was a representative of the
Respondent , denying that he had any complaint against the
Company. When L'Ecluse asked him to write the letter,
L'Ecluse said that the drivers who cooperated with the
Company would enjoy a better situation. On a few occa-
sions thereafter , L'Ecluse asked Gerhard whether he was
going to write the letter but Gerhard did not take any action
on it. He did talk about it to Fenstermacher who told him
that he would have to do whatever he thought was best.
Sometime after September 10, when the amended complaint
issued , L'Ecluse approached him once again and asked him
whether he wrote the letter . Gerhard said that he had not.
L'Ecluse then asked him why and he responded that he
couldn't do something that was wrong. L'Ecluse answered,
"Fine. Okay. That's it."13
b. Conclusions
On June 28, L'Ecluse requested Gerhard to write a letter
in effect renouncing allegations set forth in the amended
charge in Case 21-CA-10005. On several occasions there-
after, L'Ecluse renewed that request. When the original re-
quest was made , L'Ecluse told Gerhard that the drivers who
cooperated with the Company would enjoy a better situ-
ation. That statement was an unveiled threat that Gerhard
would not have a good situation with the Company unless
he sent the letter . Gerhard was engaging in protected con-
certed activity with regard to the charge.I find that Respon-
dent violated Section 8(a)(1) of the Act by threatening
Gerhard that he would suffer poor working conditions un-
less he renounced a charge filed with the Board.
In summary, I find that: (1) Respondent violated Section
8(a)(1) of the Act by threatening Keen with loss of employ-
ment because Keen testified at an arbitration proceeding
under a collective-bargaining agreement ; (2) Respondent
violated Section 8(a)(1) of the Act by threatening Herman
Gerhard that he would suffer poor working conditions un-
less he renounced a charge filed with the Board; (3) Respon-
dent violated Section 8(a)(1) and (3) of the Act by refusingg
to dispatch Keen on April 6 and during the day of April
because Keen testified at an arbitration proceeding under
a collective-bargaining agreement ; (4) Respondent violated
Section 8(a)(1) and (3) of the Act by refusing to dispatch
Harold Coffin, Herman Gerhard, Claude ngfield, and
Jerry Wingfield for approximately 2 weeks after April 25
because they participated in a protected strike to put pres-
sure on Respondent to honor an arbitration award; and (5)
except as found above, the General Counsel has not estab-
13 These findings are based on the credited and uncontradicted testimony
of Gerhard . L'Ecluse testified that he recalled a conversation with Gerhard
and recalled being amazed at Gerhard 's reaction . He could not recall what
they talked about , though he testified that to the best of his recollection, he
did not make any threats per se to any employee.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Though I have found that Respondent violated Section
8(a)(1) and (3) of the Act by refusing to dispatch Keen on
April 6 and during the day of April 7 because of Keen's
participation in the Taylor arbitration proceedings, there
was no loss of pay to Keen on April -7 because he was
dispatched that evening. In addition, Keen won the griev-
ance he filed pertaining to his loss of pay for April 6 and
was paid the amount of money he would have received if
he had been dispatched on that date. Keen has, therefore,
been made whole for the discrimination against him and no
backpay remedy is required.
Having found that Respondent violated Section 8(a)(1)
and (3) of the Act by refusing to dispatch Harold Coffin,
Herman Gerhard, Claude Wingfield, and Jerry Wingfield
for approximately 2 weeks after April 25, I shall recommend
that Respondent be ordered to make them whole for any
loss of pay resulting from their loss of employment by pay-
ment to each of them of a sum of money equal to the
amount each normally would have earned as wages during
that period, less net earnings during that period. Such back-
pay shall be computed on a quarterly basis in the manner
prescribed in F. W. Woolworth Company, 90 NLRB 289, and
shall include interest at 6 percent as provided in Isis Plum-
bing & Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. Respondent is an employer enga ed in commerce with-
in the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By threatening Keen with loss of employment because
he testified at an arbitration proceeding under a collective-
bargaining agreement, Respondent violated Section 8(a)(1)
of the Act.
4. By threatening Gerhard that he would suffer poor
working conditions unless he renounced a charge filed with
the Board, Respondent violated Section 8(a)(1) of the Act.
5. By refusing to dispatch Keen on April 6 and during the
day ofApril 7 because Keen testified at an arbitration pro-
ceeding under a collective-bargaining agreement, Respon-
dent violated Section 8(a)(1) and (3) of the Act.
6. By refusing to dispatch Harold Coffin, Herman Ger-
hard, Claude Wingfield, and Jerry Wingfield for approxi-
mately 2 weeks after April 25, because they participated in
a protected strike to put pressure on Respondent to honor
an arbitration award, Respondent violated Section 8(a)(1)
and (3) of the Act.
7. The aforesaid unfair labor practices are unfair labor
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices affecting commerce within the meaning of Section not established by a preponderance of the evidence that
2(6) and (7) of the Act. Respondent has violated the Act.
8. Except as is set forth above , the General Counsel has [Recommended Order omitted from pubhcation.]