Edward M. Rude Carrier Corp.

National Labor Relations Board - Board Decisions

Dec 27, 1974

215 N.L.R.B. 883 (N.L.R.B. 1974)

EDWARD M. RUDE CARRIER CORP. 883
Edward M . Rude Carrier Corporation and Interna-
tional Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America, Teamsters Local
Union No. 789. Case 6-CA-6925
December 27, 1974
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
On May 31, 1974, Administrative Law Judge Irving
M. Herman issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions 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 at-
tached Decision in light of the exceptions and brief and
has decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge and to adopt his
recommended Order, as modified herein.'
to avoid bargaining with the Teamsters or any
other union.
WE WILL NOT discontinue the hauling of sugar or
floor covering materials without giving the Union
an opportunity to bargain about the decision to do
so and its effects.
WE WILL NOT negotiate directly with any in-
dividual employee or employees about their terms
or conditions of employment.
WE WILL NOT interfere in any similar way with
the right of our employees to engage in organiza-
tional activity or collective bargaining.
WE WILL resume the hauling of sugar and floor
covering materials.
WE WILL offer Grant Bennett ' immediate and
full reinstatement with backpay.
WE WILL bargain collectively with the Teamsters
as the exclusive representative of our employees in
the bargaining unit certified by the National Labor
Relations Board on July 17, 1973.
EDWARD M. RUDE CARRIER
CORPORATION
DECISION
ORDER
Pursuant- to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge as modified below and
hereby orders that Respondent, Edward M. Rude Car-
rier Corporation, Clarksburg, West Virginia, its of-
ficers, agents , successors, and assigns, shall take
the action set forth in said recommended Order, as
modified herein:
1. Insert the following as paragraph 2(a) and reletter
the existing paragraphs accordingly:
"(a) Resume the hauling of sugar and floor covering
materials."
2. Substitute the attached notice for the Administra-
tive Law Judge's notice.
I In affirming the Administrative Law Judge 's finding that Respondent
violated Sec. 8 (a)(5) of the Act , we do not rely on his alternative finding that
employee Billmeyer is a dual-function employee acting as a regular part-
time in the certified unit, inasmuch as our affirmance of the illegality of
Bennett's discharge preserves the unit without regard to Billmeyer 's status
APPENDIX'
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discriminate
against any employee because of union activity or
STATEMENT OF THE CASE
IRVING M. HERMAN, Administrative Law Judge: This case
was tried before me on March 19-20, 1974, at Clarksburg,
West Virginia. The charge was filed by International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Teamsters Local Union No. 789 (herein called
the Union), on August 23, 1973, and served upon Respondent
by registered mail the same date. The primary issues are
whether Respondent violated Section 8(a)(3) and (5) of the
National Labor Relations Act, as amended (29 U.S.C., Sec.
151 et seq.), herein called the Act, by discharging Grant
Bennett and refusing to bargain with the Union.
Upon the entire record,' including my observation of the
witnesses , and after due consideration of the briefs filed on
behalf of the General Counsel and Respondent, I make the
following:
FINDINGS AND CONCLUSIONS
I RESPONDENT'S BUSINESS
The complaint alleges, the answer admits, and I find that
Respondent is a New Jersey corporation with its principal
facility located in Falling Waters, West Virginia, and a place
of business at Bridgeport, West Virginia, where it is engaged
in the shipping and transporting of goods and materials as a
common and contract carrier; that during the 12-month
period immediately preceding the issuance of the complaint,
Respondent received more than $50,000 for transporting
goods across state lines and for services performed for other
employers directly engaged in interstate commerce; and that
I Certain errors in the transcript have been noted and corrected
215 NLRB No. 159
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent has been at all material times an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
iI THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Facts'
1. Respondent 's operations prior to July 25, 1973
Since 1953 Respondent has been operating as a contract
carrier, under permit of the Interstate Commerce Commis-
sion, in transporting dynamite and blasting supplies over ir-
regular routes from the DuPont plant at Falling Waters,
West Virginia, to various points in the eastern part of the
United States, "with no transportation' for compensation on
return except as otherwise authorized." Since 1964, Respond-
ent has held a certificate of convenience and necessity as a
common carrier, principally to transport glass and glass pro-
ducts from the Clarksburg, West Virginia, area to various
points in the East, and sugar, groceries,' and floor covering
materials from various eastern points to the Clarksburg area.
In respect to all such hauls the certificate similarly restricted
paid return trips. Although its common carrier rates were
substantially lower than its contract carrier rates,' as Rude
testified, the common carrier operation provided a return
haul for its trucks and "whatever you bring in that load
should show a profit if you don't have a terrific damage and
loss claim."5
The common carrier operation required a terminal in the
Clarksburg area, and for some years that terminal has been
maintained at Bridgeport, 7 miles from Clarksburg, and 176
miles from Falling Waters In addition to the terminal
manager (Hefner, an admitted supervisor), the employee
complement at Bridgeport consisted over the years of one to
three city drivers, but the usual number was two, the number
employed there full time for at least a year immediately
preceding July 25, 1973.6 At the same time Respondent em-
ployed about,20 over-the-road drivers at Falling Waters'
City drivers were used only in moving commodities cov-
ered by Respondent's common' carrier authority. Typically
prior to July 25, an over-the-road driver from the Falling
2 These findings are based on uncontroverted testimony or documentary
evidence except as otherwise indicated
3 Respondent ceased handling groceries some time prior to 1973
4 Respondent's rate for hauling sugar from Philadelphia, 338 miles, is 56
cents per hundred weight as against a $1 14 rate for explosives over the same
distance, the sugar rate from Baltimore (244 miles) is 53 cents as against a
99-cent rate for explosives for the same mileage, and the rate for floor
coverings for the 275 miles from Lancaster, Pennsylvania, is 58 cents, while
that for explosives over the same mileage is $1 04.
5 Rude testified that his entire operation did a million dollars worth of
business a year
6 All dates are in 1973 except as specifically stated.
7 Over-the-road drivers, unlike city drivers, are subject to Department of
Transportation regulations and are paid on a mileage basis City drivers
receive $3 25 an hour
Waters terminal would pick up a trailer load of sugar or
linoleum and haul it to the Bridgeport terminal whence it
would in turn be delivered to its ultimate destination by the
city drivers. The latter would then take the empty trailer to
the Pittsburgh Plate Glass plant located in Clarksburg, leave
it for loading with glass, and pick up a loaded trailer which
it would bring back to the terminal to be picked up in turn
by an over-the-road driver for delivery to its destination
whence the process would start again Occasionally,' over-
the-road drivers made direct deliveries of sugar and linoleum
in the Clarksburg area or picked up directly at the PPG
terminal.' On such occasions they generally continued to be
paid at their over-the-road pay rates.10
President Rude and Terminal Manager Hefner testified
that over half of the city drivers' work prior to July 25 in-
volved the hauling of sugar and linoleum." According to a
compilation, prepared by Respondent, of deliveries of sugar
and linoleum (plus three deliveries of paper and one of canned
meat) during the period January 2-July 25, 1973, 131 trips
were made." Although many more glass trips were made
during the same period (872 from PPG alone), the record
does not reflect the amount of time consumed by such trips
as against those involving sugar and linoleum."
For several years Respondent has been dissatisfied with the
profitability of at least certain aspects of its common carrier
work, and around 1971 had stopped hauling groceries and
moving sugar from Cincinnati because of loss and damage,
and about July 1972 had temporarily ceased certain other
sugar deliveries. For at least a year and a half to 2 years, Rude
and Hefner testified, they discussed the possibility of a total
cessation of the sugar and linoleum deliveries." According
to Hefner, Rude initiated such discussions every time during
such period that he received a claim for loss or damage from
one of the sugar companies.15 Another factor, according to
Hefner, was that "a lot of people's credit wasn't too good,"
so that a driver sent to pick up a load of sugar in Philadelphia
or Baltimore would "sometimes" have to wait for "three to
8 "During vacation or sickness" of city drivers, according to Rude's tes-
timony at the hearing in Case 6-RC-6464
9 in contrast, trailers loaded with glass from the Owens-Illinois plant at
Fairmont were normally picked up directly by over-the-road drivers and
only occasionally were brought to the Bridgeport terminal by the city driv-
ers The latter's normal function in respect to Owens-Illinois was simply to
drop empty trailers there
10 The city drivers also occasionally picked up loaded trailers at Brockway
Glass Company in Clarksburg
11 At the hearing in the representation proceeding (6-RC-6464) held May
8, Rude's entire answer to Respondent's attorney's question as to what work
Hamilton and Bennett did was as follows
They do strictly city truck driving, take empty trailers into Pittsburgh
Plate Glass Company or Owens-Illinois in Fairmont , West Virginia,
and bring those back to Bridgeport for the over - the-road truck drivers
to pick up and deliver
12 About one-fourth of these trips involved split deliveries, i e , deliveries
to moie than one destination This was true of only about 5 percent of the
glass trips, according to Hefner
13 Of the 127 sugar and linoleum deliveries, 110 were of sugar
14 Rude testified the sugar operation had been losing money for a year
before he gave it up in July 1973
15 Rude admitted to having received such claims throughout "the entire
10 years that I have owned that section of the business "
EDWARD M RUDE CARRIER CORP.
four hours" while the consignee's credit was being checked.
Rude's testimony put the time at "four and five hours."
2. The Union's certification
The Union filed a petition on April 20 to represent the two
city drivers then employed at Respondent's Bridgeport termi-
nal. A hearing was held May 8 at which Respondent con-
tended for a single unit of all drivers at both locations On
June 8 , the Regional Director issued his Decision and Direc-
tion of Election, finding appropriate a unit limited to "All
city truckdrivers employed by the Employer at its Bridge-
port, West Virginia, location," with the usual exclusions.
Respondent did not request review. Following an election
held July 9 in which both drivers (Clarence Hamilton and
Grant Bennett) voted for the Union, the latter was certified
on July 17.16
3. Bennett's discharge
a. Events prior to and including the discharge
Bennett commenced work for Respondent on February 26,
1973, succeeding Walter Flesher who then became an over-
the-road driver. Hamilton was already on the job as the other
city driver. From the time of Bennett's hire until his discharge
on July 25, he and Hamilton worked approximately the same
number of hours." Despite Rude's testimony that they
evenly split the various types of loads, Hefner testified that
the sugar generally involved heavy loads which had to be
hauled by the twin screw tractor which only Hamilton oper-
ated. This, together with the documentary evidence showing
Bennett to have handled substantially more PPG pickups
than Hamilton, tend to confirm Bennett's testimony that he
handled comparatively few sugar deliveries. Nevertheless,
when the decision was made to terminate the sugar and lino-
leum business, and consequently to reduce the force, Bennett
was selected for elimination because of his junior status.
Hefner's testimony on direct examination concerning the
decision was as follows:
Q. Now, in relation to Mr. Bennett's layoff on July 25,
1973, did you have a telephone conversation with Mr.
Rude on July 23?
A. Yes, I did.
Q. Tell us what that conversation was.
A. He told me that he just got some claims in from one
of the sugar companies and told me how much the claim
was. He said, "Call the brokers and tell them we are not
hauling any more sugar."
* * * *
Q. And did you call the brokers?
A. I called Brake and Company and talked to Wallace
Brake; and I called B.D. Bailey and Sons and notified Al
Boyd.
Q. Did you do that the same day you talked to Mr.
Rude or later?
16 No issue was presented concerning the inclusion in the unit of any
over-the-road drivers for such portion of their time as they spent in unit
work
17 From March 1 through July 25 , Hamilton worked a total of 928 hours
and Bennett 889 5
885
A. I done it the same day.
On cross he testified in pertinent part as follows:
Q. Now, you testified that on July 23rd, you had a
phone conversation with Mr. Rude and you said that he
received a claim from a sugar company and that
made-and that he had made up his mind at that point
to discontinue that operation?
A. Right.
Q. And do you recall how much that claim was for?
A. Now, he was talking on the telephone and he had
the claim in his hand. I didn't have it, but he had the
claim in his hand.
Q. You don't know how much the claim was for?
A. No, sir, I don't.
Rude 's relevant testimony began as a witness called under
Section 43(b) of the Federal Rules of Civil Procedure:
Q. Now, on July 25th you terminated Grant Bennett,
one of the full-time city truck drivers, did you not?
A. Yes.
Q. And why did you terminate Mr. Bennett at that
time?
A. I had been studying loss and stolen and breakage
on the sugar deliveries on the six and a half months
before that; I had been working on it trying to find out
where the damage was occurring, and I was unable to.
And it was over a thousand dollars that Rude Carrier
Corporation had to pay in damage claims in that short
time. And I had been working on it to give it up. I gave
up hauling groceries two years before that, because too
many cases disappeared and too much damage. It did
not pay to haul it
Q. Did you notify the consignees of your decision to
discontinue the operation?
A. I notified-the brokers, the sugar brokers
* * * * *
Q. What did you tell these brokers when you discon-
tinued the operation?
A. That we weren't going to pick up any more sugar.
It just didn't pay to deliver it And DuPont came out
with a new product, and we were busy using the equip-
ment there, at double the freight rate-double the reve-
nue.
Q. What did you do with your ICC rights concerning
the hauling of sugar-I'm sorry. First of all, who did you
contact concerning the discontinuance of the hauling of
linoleum and cork from Lancaster, Pennsylvania?
A. The same companies who would order it. Three or
four companies here in Clarksburg, who would call us
to go to Lancaster and pick up a load of rugs for them;
and we told them we couldn't pick it up'any more.
Q. When did you do that?
A. On July 23rd or 25th, around that time
*
Later, on direct examination by Respondent's counsel,
Rude testified as follows:
Q. (By Mr. Woods) Mr. Rude, under your common
carrier authority, you have certain authority to transport
sugar and cork and linoleum, is that correct?
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Yes, sir.
Q. Did there come a time in 1973 when you were
dissatisfied with the operation of your business?
-A. Yes.
Q. Had you had a number of damage claims on your
sugar operation presented to you by the National Sugar
Refining Company and the American Sugar Company?
A. Yes.
a a a a a
Q. When did you make the final decision to actually
discontinue these operations?
A. Around July the 23rd.
Q. And did you at that time communicate that deci-
sion to Mr. Hefner?
A. Yes.
Q. What did you tell him?
A. To call the brokers and tell them that we are not
going to pick up any more loads of sugar or linoleum in
Clarksburg.
Q. And what reasons did you have for making the
decision at that precise time , in addition to the question
of pilferage or damage claims?
A. For that six and a half months , I had just got
through totaling up over a thousand dollars-in the
neighborhood of a thousand dollars-lost which Rude
Carrier Corporation has to pay . There's no insurance up
to the first $500.00 on any loss or damage claim.
a a a a a
. . . That was one of the reasons . Now, were there other
reasons for doing that?
A. Taking four and five hours to get loaded in Phila-
delphia , Baltimore and Lancaster and not getting the full
use out of the equipment and it would knock them out
of a trip the next day.
Q. And were there any other reasons connected with
the rates for the-You mentioned , I believe, in your
examination by the Board counsel a new product by
DuPont.
A. Yes 53 cents a hundred pounds against $1.04 a
hundred pounds . It's the same gross weight and the same
mileage , over a given distance of the same mileage.
a a a a a
Q. (By Mr . Woods) Now, I think you said that there
was still another reason and that was the coming on of
a new product by DuPont?
A. That's right.
Q. Will you tell us about that?
A. It's an entirely new product besides the explosives
that 's going in 45,000 pound loads to the
mines-same mines that we deliver the explosives to,
and it 's expected to reach 50 million pounds within two
years.
Q. And that is an authority that comes under your
explosive authority?
A. Yes.
On cross, Rude testified:
Q. Now, on July 23rd, you had a conversation with
Mr. Hefner concerning that you had just received a
claim from one of the sugar companies and at that point
you made your decision to discontinue the sugar opera-
tion , is that right?
A. Yes. Which one, I can ' t pin down.
Q. You don' t know how much that claim was for?
A. I don' t remember . It takes sometimes six weeks
before -
Q. You don't know whether -
A. [T] he actual claim comes in after the sugar is stolen
or damaged ; but I was adding up the entire six and a half
months and said , "This is it."
Q. Could it have been a claim as low as $13.00?
A. That's right.
a a a a a
Q. (By Mr . Burns) Mr . Rude , you testified on direct
examination that the DuPont Company was making a
new product . What product was that?
A. Glue.
Q. Glue?
A. Yes.
Q. And you were going to get a tariff of $ 1.04 per
hundred pound?
A. Well, its a little less than that . It goes a different
commodity rate.
Q. When you referred to the $1 .04 per hundred
pound, were you referring to the glue product?
A. I was comparing explosives , which is the bulk of
my business, against a load of sugar , or a load of lino-
leum.
Q. But I think you said on direct examination that
DuPont was developing this new product and you took
that into consideration when you made the decision to
terminate the sugar operation , is that not right?
A. That's right.
Q. What is this new product that they were manufac-
turing?
A. Rock bolt resin.
Q. And what is that?
A. It's used in the mines to hold the ceiling up . Instead
of screwing a bolt in the ceiling of a mine , they glue that
bolt in there . It's a new safety feature.
Q. Are you transporting this new product, now?
A. Yes
Q. When did you start transporting it?
A. Really big since the first of the year . We tran-
sported it all through '73. Now it's getting into a larger
operation.
The sugar company claims that Rude compiled , totaling
$1,009.48 ($592.04 by American Sugar Company (Amstar)
plus $417 .44 by National Sugar Refining Company ), are re-
flected in the following table:
EDWARD M RUDE CARRIER CORP. 887
National
Claim 0 Date Amount
C-18 18 $ 24.68
C-19 13.65
C-45 28.04
C-48 13.23
H-27 39.70
A-27 25.54
M-4 7.47
N-8 22.30
National
Claim # Date Amount
A-43 42.90
F-45 6/29 54.30
D-6 4/27 12.80
F-12 6/29 13.46
F-13 6/29 13.46
F-50 6/29 40.95
E-12 5/25 16.79
F-17 6/29 16.46
J-30 9/28 8.46
J-18 9/28 9.20
G-8 7/27 14.11
American
G7-6 7/23 28.12
G6-38 6/28 13.67
G4-82 4/30 29.25
G3-60 3/28 63.90
G1-54 19/ 2/1 28.73
G12-67 12/21/72 13.34
G12-65 12/21 25.89
G12-41 20/ 12/19 243.00
Bennett was discharged after work on July 25, the end of
a workweek, Hefner telling him he was no longer needed
because of the discontinuance of the sugar and linoleum
hauls. Bennett immediately telephoned Butcher, the Union's
secretary-treasurer, who phoned Rude several days later say-
ing that it was for Rude to decide how to run his business but
that he had information that Hefner and over-the-road driv-
ers were doing Bennett's work and that if any work were
available for more than one city driver Bennett was entitled
to it, or, if he did not want it, another driver should be
obtained through the Union.
b. Subsequent events
On August 6, Rude telephoned Hefner and told him to see
if Bennett wanted to return to work "as part time." Hefner
thereupon called Bennett and said he could put him back to
work the next morning. Bennett asked how long such em-
ployment would last, and Hefner replied that he could not
is Claims C-18 through A-43 appear in the record not in their original
form but only as listed in covering letters of payment dated May 9 and April
24, respectively, neither of which indicates the actual claim date except
insofar as the prefixed letter shows the month (infra)
19 A duplicate of this claim is also included in the exhibit, and the amount
is included twice in the computation
20This was evidently the claim to which Rude averted in his testimony
that "lately it was 1,800 pounds on one load that disappeared" The unit
price on the claim most proximate to it (i e, G1-54) was $1320 per
hundred weight '
21 Although physically included in the exhibit and counted as part of the
total computation Respondent conceded on the record that such inclusion
of the 1971 claims had been inadvertent and that the exhibit was offered
with the claims deleted
promise anything, that it might be a day or a month . Bennett
said he would be there the following morning but, according
to his testimony, could not get there because his car broke
down on the way. The following Monday, August 13, Bennett
went to the terminal and asked if work was still available, and
Hefner said no. On August 17, Bennett obtained a job
through the Union with Black Rock Construction Company,
where he received $5.85 an hour and premium pay for daily
overtime. Sometime in October, Bennett visited the terminal
and told Hefner about how well he was doing, and, according
to Hefner, that he would not go back to driving a truck unless
he had to but refused Hefner's request that he sign a paper
to the effect that he would not return to work there because
it might affect his status with the Union. Bennett denied, on
cross-examination , that Hefner had ever made such a request.
4. Hamilton's alleged conversation with Rude
Hamilton, who has been steadily employed by Respondent
since October 1972, testified that about 2 or 3 weeks after
Bennett's discharge, he telephoned Rude at Hefner's direc-
tion , but Rude said he was unable to talk from his office, so
Hamilton called him again at his home; that Rude offered
him $5.50 an hour, 2 weeks paid vacation, 22 uniforms,23 a
safe driving bonus of $300 a year,24 and pay on a mileage
basis for any trips he might make between Bridgeport and
Falling Waters;` that Rude told Hamilton to let him know
the next day, and Hamilton said he would think about it, but
he never called again . On direct examination , Hamilton re-
sponded negatively to the question whether Rude had said
why he was offering all those benefits. Just a few minutes later
on cross, in response to virtually the same question, Hamilton
testified that Rude said "he understood that [Hamilton]
wasn 't any more interested in the Union being out there than
he was."
Rude testified that he did not know Hamilton , prior to the
instant hearing , had never been introduced to or met'him,
could not recognize him or his voice, and was "positive
[he had] never talked to Hamilton on the telephone or in
person." At the representation case hearing, however, Rude
testified that if Hamilton or Bennett wanted time off for
personal reasons they would telephone him directly rather
than go through Hefner and that they in fact had done so:
HEARING OFFICER If one of the over-the-road drivers
wanted some time off, say, for personal reasons, who
would he come to ask off?
THE WITNESS Me.
HEARING OFFICER What about Hamilton or Bennett?
THE WITNESS The same way.
HEARING OFFICER Both would contact you?
THE WITNESS Yes.
HEARING OFFICER Would they call you up there at
Falling Waters?
22 Rude testified that city drivers get 2-week vacations after a year on the
job
23 Only over-the-road drivers get uniforms
24 A safe-driving bonus of $150 every 6 months is paid to over-the-road
drivers
25 He has never made any such trips
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE WITNESS That's right. That he was going to a
funeral and had to be off tomorrow.
HEARING OFFICER Have they ever done this or did they
call H"fner who, in turn, called you?
THE WITNESS They have called me direct.26
5. Rude's alleged efforts to dispose of part of its common
carrier rights
Rude testified that "right after" July 23, one of the sugar
brokers approached him with a view to purchasing Respon-
dent's sugar and floor products common carrier rights, but
that after about 4 months of discussion the deal collapsed.
On January 23, 1974, Rude wrote to a weekly magazine
called Transport Topics, in Washington, D.C., to run an
advertisement beginning February 4, for the sale, at $20,000,
of Respondent's common carrier rights except those relating
to glass.27 According to Rude, however, he thereafter
learned that General Delivery, a local cartage company in
Fairmont, West Virginia, was interested in the rights at that
price, so he put a hold on the advertisement, and a Washing-
ton attorney specializing in ICC matters was in negotiations
on Respondent's behalf with a representative of General
Delivery at the time of the hearing.
6. The city-driving operation since July 25
Respondent's glass hauls have continued without signifi-
cant change in number, although the number of PPG trips by
noncity drivers increased from 34 of a total of 775 in the
6-month period ending July 25 to 61 out of 738 during the
6-month period immediately following. Of these, over-the-
road driver Billmeyer handled 14 and 41, respectively. Ac-
cording to stipulation at the hearing, based on company re-
cords, Billmeyer, who resides near Bridgeport, and therefore
is called from time to time by Hefner, did a total of 94 hours
of city-driver work at the city-driving pay rate between July
26, 1973, and February 26, 1974.28 The only record infor-
26 Transcript in Case 6-RC-6464
27 Also reserved were the rights relating to beer and empty beer contain-
ers, apparently a minor portion of Respondent's business
28 This total consists of hours worked during 15 weeks of such period, as
follows
Week
Ending
Hours
Worked
Week
Ending
Hours
Worked
8/15 1 1/2 )
8/29 3-1/2 1/9 )
9/12 6 1/16) 39
9/19 2 1/22)
9/26 2 1/29 16
10/10 1 2/19 1-1/2
11/7 12 2/26 2
12/12 8
matron as to his time spent at city-driving work prior thereto
is that he put in 10 such hours at the same rate of pay during
the week ending July 25.29 The record is silent as to the ex-
tent of such work by other over-the-road drivers prior to July
26 except for Flesher, Bennett's predecessor as city driver. He
spent 25-1/2 hours at such work between the weeks ending
April 4 and July 11. Other over-the-road drivers apparently
do similar work on a haphazard basis in minimal amounts.
Hamilton worked 113 overtime hours during the 25-week
period from July 26 through the end of February 1974,30 as
compared with 180 hours of overtime worked by him during
the 30 weeks from the beginning of 1973 through July 25.
7., The extent of bargaining
In the course of Rude's phone conversation with union
Secretary-Treasurer Butcher in which Bennett's' discharge
was mentioned, Butcher asked when they could get together
concerning a contract. Rude said he was available at Butch-
er's convenience but requested that Butcher first send him the
Union's proposals. Butcher said either that he had already
sent them or would do so. In any event, the proposals were
sent by certified mail to Respondent's Bridgeport terminal
where they were received on August 8. The Union got no
response and filed the instant charge on August 23. Butcher
later telephoned Hefner who informed him that the Union's
communication was still lying there unopened, Hefner stating
he did not know what it was. Butcher explained it to him, and
Hefner said he would forward it to Rude.31 When Butcher
still heard nothing from Respondent he wrote a letter on
October 8, and on October 15 Respondent answered by letter
from its attorney, stating:
Mr. Edward M. Rude, Sr. has referred to me for reply
your letter of October 8, 1973 in which you demand a
meeting to resolve the question of a contract with Rude
Carrier Corp.
Frankly we had thought when you filed your charge
with the NLRB on August 22 alleging company viola-
tion of Sections 8(a)(1), (3) and (5) of the Act that you
had elected to proceed through the Board before meeting
with us to discuss a contract. I am advised that Mr. Rude
is available to meet with you at Falling Waters, West
Virginia at any mutually convenient time during the
week of October 22 to discuss the terms and conditions
of a collective bargaining agreement. Please contact Mr.
Rude directly for a meeting date.
Butcher met with Rude at the latter's office in Falling
Waters on October 30. Rude had before him the proposals
that had been sent to Hefner. He informed Butcher, however,
according to his own testimony on direct examination:
.. . that I wanted to wait to see the outcome of the
Labor Board, that it was a one-man unit, now, that I
didn't have two drivers and it was a one-man unit, and
I didn't know it until that day I talked to you, after I laid
29 At least part of that time was on July 25 delivering sugar with Bennett.
30 There were 26 weeks in this period, but he was on vacation for 1 week
31 Hefner did not testify on this aspect of the case
EDWARD M. RUDE CARRIER CORP. 889
Bennett off, that I knew nothing about a one-man
unit.32
Rude showed Butcher some correspondence from his attor-
ney containing case citations. Butcher attempted, from
Rude's office, to telephone a union attorney about this, but
he was unavailable, and Butcher left. There was no further
communication between them.
B. Analysis
1. Section 8(a)(3)
I do not accept the General Counsel 's initial contention
that "the discontinuance of the sugar and linoleum hauling,
six days after the Union 's certification , and the layoff of one
of the two city drivers , was . . . `inherently destructive' of
important employee rights under the rationale of N.L. R.B. v.
Great Dane Trailers, 388 U . S. 26, 34 ( 1967), and , therefore,
proof of antiunion motivation need not be proved (sic) as part
of the prima facie case." Conduct is "inherently destructive"
of employee rights within the meaning of Great Dane and
related cases only where it "carr[ies ] with it [the] necessary
implication that the employer acted to discourage union
membership or otherwise discriminate against union mem-
bers as such ." American Ship Building Co. v. N L.R.B., 380
U.S. 300, 312 (1965 ). I do not understand General Counsel
to be arguing , and certainly the cases would not support the
theory, that timing alone is determinative . I gather the argu-
ment would not have been advanced here if the unit had not
been reduced to but a single employee . Yet it must be borne
in mind that the essential inquiry is always the employer's
motive and that the Great Dane principle deals only with the
procedural or evidentiary means of ascertaining it. Great
Dane, supra, 32-33. And if the unlawful motive is not
"necessar [il]y implic[it]" in the same conduct where the unit
is reduced from three to two employees it cannot be otherwise
merely because the reduction has resulted in a one -man unit.
Neither of the cases relied upon by the General Counsel is
to the contrary . In neither was the elimination of the unit
itself a critical element . Metromedia, Inc., 182 NLRB 202
(1970), was simply a "reaffirm [ation of] the fundamental
principle that an employer's discharge of its employees and
refusal to bargain with a union , for the asserted `economic'
reason that dealing with the Union would be more costly,
violates Section 8(a)(3) and (5)." Walker Co., 183 NLRB
1322 (1970), fn 6. Metromedia is entirely inapplicable where,
as here , the "asserted `economic ' reason" for the reduction is
an alleged economic loss due to theft and damage. As to
Saginaw Aggregates, Inc., 191 NLRB 553 (1971), not only
does it not appear that the plant closure there involved would
have eliminated an entire unit ,33 but I respectfully suggest
that the reference to Great Dane in the Trial Examiner's
Decision ( id. at 555), was inadvertent , following , as it did, his
32 His testimony continued
Q The record here shows by General Counsel's Exhibit 1 that
charges were filed by the Union on August 23, 1973 Up to the time
of the filing of the charges, had you had any knowledge or sought any
advice about an obligation to bargain in a one-man unit9
A No
33 The employer there closed one of two plants involved in an organiza-
tional drive out of "several" it owned in the same area
findings of substantial 8(a)(1) violations including interroga-
tion and polling of the employees as well as threats to close
down the entire operation. Indeed, he rested his 8(a)(3) find-
ing "upon the totality of [five] considerations," one of which
was the "inherently destructive" nature of the closure, and
the others either directly undermining the employer's
claimed economic reason or specifically demonstrating its
union animus, including the 8(a)(1) conduct; the "sum" of
which compelled rejection of the defense as pretextual.
Ibid.
However, while Saginaw fails to support the General
Counsel's Great Dane position, it points the path to his alter-
native contention that the evidence as a whole preponderates
toward a conclusion that the discontinuance of the hauling of
sugar and floor coverings on July 23 and Bennett's discharge
on July 25 were motivated by Respondent's desire to rid itself
of the Union.
The facts recited above establish that despite Rude's claim
that Respondent's sugar operation had been losing money for
a year, and although Rude and Hefner had been discussing
the matter of ceasing that operation for a year and a half to
2 years (which means since even before it was losing money),
the decision to cease such work was not made until July 23,
dust 6 days following the Union's certification at the Bridge-
port terminal (cf. L.B. Foster Company, 192 NLRB 319, fn.
2 (1971)); and that the consequent discharge of Bennett 2
days later reduced the unit to one man, which reduction, if
intended to be permanent and found to be nondiscriminatory,
would have terminated Respondent's bargaining obligation
under Board law (cf. Crispo Cake Cone Co., Inc., 190 NLRB
352 (1971), 201 NLRB 309 (1973)). That the termination of
that obligation was indeed at least one of its purposes is
demonstrated, in my opinion, by the timing, the offer made
to Hamilton, and the insufficiency, if not disingenuousness,
of Respondent's defense. I do not credit Rude's denial that
he was aware at the time of the Board's one-man unit rule.
I credit Hamilton's testimony that shortly after Bennett's
discharge Rude offered him certain benefits by way of induce-
ment to give up the Union. In reaching this finding, I have
not ignored the fact that Hamilton initially answered in the
negative the question whether Rude had stated why he made
the offer. I find, however, under all the applicable circum-
stances, that his initial response to that question simply re-
sulted from his misunderstanding it. Not only was I im-
pressed with Hamilton's favorable demeanor as a witness, but
certain objective factors are significant in this connection.
First, although Hamilton testified that his conversation with
Rude (who denied ever talking to Hamilton) occurred at the
instance of Hefner, the latter, testifying only minutes later,
failed to deny that he had told Hamilton to call Rude. Sec-
ond, Rude's testimony that he had "never talked to Hamilton
on the telephone or in person" is contradicted by his own
testimony at the hearing in the representation case. A further
factor tending to support Hamilton's credibility is that he
"testified adversely to the Respondent notwithstanding that
[he was] still in its employ." Georgia Rug Mill, 131 NLRB
1304, 1305 fn. 2 (1961); The Coca-Cola Company, Foods Divi-
sion, 196 NLRB 892, 893, fn. 5 (1972).
Respondent's asserted economic justification for its action
does not square with the facts. In the first place, some ques-
tion exists as to whether the losses in the sugar operation were
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
severe enough to warrant its discontinuance at all after 8 or
9 years of satisfactory experience despite similar losses. Rude
himself testified to the worth of return hauls even at their low
rates because "whatever you bring in that load should show
a profit if you don't have a terrific damage and loss claim."
Respondent produced no financial records to substantiate its
claimed losses," and the evidence in the record fails to sup-
port its position. Thus, Respondent asserts that it made its
decision to discontinue the sugar operation on July 23 and
that the decision was precipitated by a claim that it had just
received but was unable to identify either as to source or
amount and which Rude acknowledged could have been as
small as $13. Such a claim obviously was too petty to consti-
tute a reasonable basis for terminating that portion of the
business but Rude testified that his decision was really based
on his study of all sugar company claims over the immedi-
ately preceding "six and a half months," which amounted to
.,over a thousand dollars that Rude Carrier Corporation had
to pay in damage claims in that short time." However, in-
cluded among the 34 claims on which the argument purports
to rest are I claim which is duplicated and 15 others which
either antedate or postdate the 6 1/2-month period. Besides
the three 1971 American Sugar claims (totaling $39.72) with-
drawn at the hearing as inadvertently included when the
error was noted by the General Counsel, these claims are as
follows:
1. G1-54 (American), for $28.73, which is duplicated.
2. G12-67, 65 and 41 (American), totaling $282.23,
which, although re-billed by the letter of April 5 in-
cluded in the exhibit, were dated December 21 and 19,
1972.
3. G8-6, 9 and 10 (American), totaling $77.69, which
were dated August 17.
4. J-30, J-18 and G-8 (National), totaling $31.77,
which were dated September 28 and July 27.
5. H-27, M-4 and M-8 (National), totaling $69.41,
which, although covered by Rude's letter of payment,
dated April 24, included in the exhibit, were evidently
dated sometime in August and December 1972.31
Subtraction of these claims as improperly included in Rude's
computation reduces his total from $1,009.48 to $479.93.36
34 Calip Dairies, Inc., 204 NLRB No 49 (1975), and cases there cited
35 Comparison of the prefix letters of National claims against their dates
(where available ) indicates the use of A-H to represent January-August,
respectively, and J-M for September-December , respectively
36 1 have used the dates of the claims in making the above analysis because
that would most approximate their dates or receipt which seem the decisive
element in Respondent 's action, as indicated by the frequency with which,
according to Rude's and Hefner 's testimony , they generated Rude's calling
Hefner to discuss termination of the sugar operation However, if Respond-
ent was relying on the only other dates appearing on the claim , i e , the dates
of the bills of lading, then at least all claims in items 2 and 5 (in addition
to item 1) would have to be deleted as necessarily preceding the 6 1/2-
month period , and it would be impossible to ascertain from Respondent's
letters of payment of May 9 and April 24 what other claims therein listed
also stemmed from earlier bills of lading , similarly, National's claim J-18
would have to be eliminated since that bill of lading postdated the period
If, on the other hand , Respondent was relying on payments made during the
period , it obviously could not have relied on any of the claims covered in
items 3 and 4 , and again , item 1 would have to come out The net totals
based on the ascertainable information in the record for these alternatives
would be , respectively , $680 19 or $831 57 The significant point is, in my
view, that in its zeal to build up the total Respondent included'either 16 or
Quaere, whether this sum suffices for the "ternfic-damage
and loss claim" but for which, according to Rude, the sugar
operation would show a profit. As stated, Respondent pro-
duced no financial records." But if such a figure did so suf-
fice, Respondent failed to explain why it did not discontinue
the operation in question when, on the basis of its own com-
putation, it must have thought the claims had reached that
figure, well before the advent of the Union. If it be assumed
that Rude did not undertake an earlier computation, one can
only wonder why.38
Rude's professed inability to specify the claim that trig-
gered his action seems dubious. It is unlikely that he would
not have remembered an event important enough to have led
to a substantial change in Respondent's business operations
of such long standing, particularly in view of the extremely
narrow compass of possibility as to the source and his posses-
sion of the claims at all times. The claims themselves suggest
that no claim at all was received on July 23. Based on their
dates there is only one that could possibly have been received
then, American Sugar's claim G7-6. But there are two dif-
ficulties with this: First, recognizing this as the claim in ques-
tion requires indulging the doubtful hypothesis that Rude
received it on the very day it was dated; and second, if it was
indeed the crucial claim, then Rude reacted uncharacteristi-
cally strongly to a loss of $28.12 when five claims from Na-
tional Sugar dated just 24 days earlier and totaling $146.63
had evidently been accepted with comparative
equanimity.39 Nor can I attribute Respondent's change in
attitude to its asserted interest in transferring its energies to
handling DuPont's new product, the rock bolt resin.40
Rude's testimony that Respondent had transported the resin
"all through '73" and that it was "now . . . getting into a
larger operation," i.e., "since the first of the year," hardly
justified the termination of its sugar operation in mid-1973.
Moreover; Respondent has failed to explain and I am unable
to perceive how the diversion to its strictly outbound contract
carrier operation of any equipment made available by the
discontinuance of the inbound sugar and floor covering deliv-
eries would.offset such losses as would inevitably result from
ending the sugar income and returning with empty vehicles
to Bridgeport to pick up outbound loads of glass, which work
Respondent still plans to retain even if it ultimately disposes
of its other rights as a common carrier.41
11 or 10 claims which did not fit its asserted theory, whatever that theory
was
37 It is thus impossible even to determine how the 6-month period im-
mediately preceding July 23 compared with the prior 6-month period during
which, according to Rude, the sugar operation was also losepg money
38 As indicated supra, Hefner testified that Rude discussed eliminating the
sugar and floor coverings every time he received a claim
39 Similarly, the earlier $243 claim from American had produced no such
reaction.
40 The record does not disclose Respondent's rate for transporting the
resin except for Rude's testimony that it was "a little less" than the $1.04
rate for the explosives
41 Respondent's additional contention that drivers were "often idled for
hours" while waiting for credit checks on the consignees rests entirely on
Hefner's testimony that it happened "sometimes " and Rude's testimony
which fails to mention frequency Respondent's logbooks were not offered
At most, this could only have played a minor role in Rude's decision A final
factor urged by counsel ( ibid.) to have motivated Rude is that many sugai
shipments involved multiple deliveries which also were time-consuming.
However, Hefner's mention of this occurred in another context, and Rude's
testimony is wholly silent on it
EDWARD M. RUDE CARRIER CORP. 891
I accordingly find that Respondent 's explanation of its
conduct here in question was false and designed to conceal its
real motive ; namely , to enable Respondent to evade its bar-
gaining obligation to the Union . Cf. Shattuck Denn Mining
Corp. v. N.L.R.B., 362 F.2d 466, 470 (C.A. 9, 1966 ). Hence
Bennett 's discharge violated Section 8(a)(3) of the Act.
2. Section 8(a)(5)
Respondent's treatment of the Union's bargaining requests
bolsters my finding, supra, that Respondent was unwilling to
accord the Union the rights to which it was entitled under its
certification. It passes credulity that an employer wanting to
meet its bargaining obligation would have permitted the
Union's certified letter received August 8 to lie unopened and
unforwarded for weeks to the company official who handled
union business and to continue to be ignored even after the
filing of the charge . But assuming that is what happened
rather than that the letter had been forwarded to Rude by
Hefner upon its receipt from the Union, it may also reasona-
bly be assumed that Hefner did at least transmit it to Falling
Waters after Butcher discussed it with him. Again, had Re-
spondent desired to fulfill its duty it could reasonably be
expected to have responded to the Union long before October
8 when Butcher found it necessary to write another letter.
When Respondent finally answered through counsel on Octo-
ber 15, the dissembling became even more pronounced with
the protestation that Respondent "had thought when you
filed your charge with the NLRB on August 22 alleging
company violation of Section 8(a)(1), (3) and (5) of the Act
that you had elected to proceed through the Board before
meeting with us to discuss a contract." And this in the face
of Butcher's call to Hefner after the charge had been filed.
Only by hypothesizing that Hefner failed to send the original
letter to Rude even after the phone call following the filing
of the charge and failed to notify Rude of the phone call, and
that Rude, whose direct control over the Bridgeport terminal
extended (according to his own testimony in the representa-
tion case) even to personally approving leave requests by the
city drivers, never inquired of Hefner about the Union's
proposals that he had himself asked Butcher to send, could
it be concluded that Respondent might indeed have thought,
as stated in its letter, that the Union had elected not to press
for a meeting . I find this all too strained to believe.
Moreover, Respondent's letter of October 15 raises another
question concerning its good faith . It announces Respon-
dent's availability for a meeting "to discuss the terms and
conditions of a collective bargaining agreement ," which it
proved unwilling to do when the parties eventually met on
October 30. The natural inference is that the one-man unit
defense had not occurred either to Respondent or its attorney
as of, October 15. Yet Rude's testimony quoted supra strongly
indicates earlier knowledge, possibly very shortly after the
discharge but in any event right after the filing of the charge,
almost 2 months before the letter of October 15.
Respondent's offer to Hamilton was of a piece with this
evasive conduct which, as a whole, constituted a refusal to
bargain with the Union in violation of Section 8(a)(5). In
addition, the offer to Hamilton was independently violative
of Section 8(a)(1) and (5) as an infringement of the Union's
exclusive bargaining authority. Cf. Medo Photo Supply Corp.
v. N.L.R.B., 321 U.S. 678 (1944).
Quite apart from the foregoing violations, Respondent
breached its obligation to bargain with the Union over the
decision to discontinue its sugar dealings and the effects
thereof. Respondent concedes the duty to bargain about the
effects but contends that duty was satisfied. What has already
been said, supra, negates this contention, even ignoring any
element of bad faith. There simply has been no bargaining as
to the effects of the discontinuance on either Hamilton or
Bennett. Respondent does not even suggest how the duty was
met in respect to Hamilton, and its position that Butcher's
phone conversation with Rude shortly after July 24 satisfied
the obligation in respect to Bennett completely overlooks the
fact that that conversation contemplated further discussions
which Respondent thereafter foreclosed.
Contrary to Respondent, the absence of an unlawful mo-
tive would not have freed Respondent to decide to discon-
tinue handling the sugar without first discussing it with the
Union. The Board has not yet accepted the proposition that
an employer may unilaterally decide to end any part of its
operation, nor do the court decisions cited by Respondent go
that far. Those cases hold only that an employer need not
consult the bargaining representative in respect to going out
of business or shutting down a plant or discontinuing a dis-
tinct portion of the business.42 In finding no 8(a)(5) viola-
tion in a unilateral closedown which the Board recognized as
only a partial plant closing in Summit Tooling Co., 195
NLRB 479 (1972), the Board nevertheless regarded the em-
ployer as having "elimiante[d] itself as an employer," and
carefully observed (id at 480) that the
practical effect was to take the Respondent out of the
business of manufacturing tool and tooling products.
The part of the business that remained, Ace Tool Engi-
neering Co., Inc., is not engaged in tool-and-die making,
manufactures nothing, and has little relationship to the
work which was performed by Summit nor does it utilize
the skills of the employees employed by Summit.
0
Here, by contrast, the only change in the Company's busi-
ness was termination of the hauling of certain particular types
of goods. Respondent continued to haul other goods under
the same governmental grant of authority, still employing one
of the two original members of the bargaining unit. The
intimation in the Summit opinion seems fairly strong that the
Board would have reached a contrary result in the instant
case.
The General Counsel's final contention, in which I also
find merit, is that Respondent violated Section 8(a)(5) in any
event because, entirely without regard to motivation or the
duty to bargain about the discontinuance of the sugar haul-
ing, the unit has not in law or fact been reduced to one man,
thus leaving the Union's rights under the certification intact.
The major premise of this argument is the Board's established
principle that regular part-time employees are included in the
bargaining unit . The following excerpt from Farmers Insur-
ance Group, 143 NLRB 240, 244-245 (1963), comes about as
42 Textile Workers v Darlington Manufacturing Company, 380 U.S. 263
(1965), contrary to Respondent, did not involve this point at all 380 U.S
at 767, fn 5
11
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
close as the Board has come to defining the line between
regular and nonregular parttimers:
The Board generally has included part-time em-
ployees in a unit with full-time employees whenever the
part-time employees perform work within the unit on a
regular basis for a sufficient period of time during each
week or other appropriate calendar period to demon-
strate that they have a substantial and continuing inter-
est in the wages, hours, and working conditions of the
full-time employees in the unit. Such employees are cus-
tomarily denoted as regular part-time employees. Other
part-time employees whose work periods are sporadic
are termed "casual" or "irregular part-time employees"
and are generally excluded.
Unfortunately, the amount of time which must be spent at
unit work in relation to frequency so as to qualify as a regular
parttimer remains fairly obscure. Whatever the standard is,
however, it extends as well under current Board law to dual-
function employees of the same employer. Berea Publishing
Company, 140 NLRB 516, 518-519 (1963).
The General Counsel urges that the need for a regular
parttimer is demonstrated by several factors, two of which
fail to move me. First, the offer to recall Bennett on a part-
time basis hardly indicates the prospect of regularity of such
employment in view of Hefner's announcement to Bennett at
that time that it might be for as little as a day's work with
no promise for the future. Second, the amount of overtime
averaged by Hamilton since July 25 (4.5 hours/week) is sig-
nificantly less than what the record reflects prior to that date
(6 hours/week). Nevertheless, the record reveals a substan-
tially greater need for assistance from over-the-road drivers,
and particularly from Billmeyer, since July 25 than during
the preceding period. And such work is compensable at the
city-driver rate Thus, noncity drivers made only 4.4 percent
of the PPG pickups during the 6-month period immediately
before July 25 as against 8 .3 percent of the trips since. Bill-
meyer's own share of such trips virtually tripled during that
period. Respondent's reliance on the Regional Director's
finding of an absence of community of interest between the
road drivers and city drivers in the representation proceeding
despite the fact that road drivers relieved city drivers "during
periods of vacation and illness" is misplaced. Not only was
the issue there one of unit rather than eligibility, but no one
contended for coverage of any parttimers or dual-function
employees, Respondent urging only by way of alternatives
either the inclusion of all drivers or of all the employees of
Respondent. Moreover, the only evidence in the record there
of city-driving by over-the-road drivers was Rude's testimony
limiting such occasions to "vacation and illness," hence spo-
radic in nature . In any event , the situation has changed since,
as indicated above. The question thus reduces to whether, as
charged, Billmeyer's city-driving work meets the test for that
of a regular parttimer.
On balance, I find that it does despite the relatively small
number of hours worked. The Board has not so narrowly
confined itself. It has held, for example, 3-5 hours a week
sufficient. The Vindicator Printing Company, 146 NLRB 871,
877-878 (1964). In Motor Transport Labor Relations, Inc.,
139 NLRB 70, 72 (1962), where 1,700 employees worked 1
to 40 days a quarter in which there were 65 possible work-
days, the Board included those who worked 15 days in the
quarter preceding the voting eligibility date. Fresno Auto Auc-
tion, Inc., 167 NLRB 878 (1967), involved 12-15 drivers
employed weekly but one-third of whom had worked in less
than 3 weekly pay periods in the 6 months before the hearing.
The employer there did not know from week to week how
many he would need or how many would report if called. In
a given week they worked from 1 to 35 hours. The Board
included them as a group in the unit, limiting voting eligibil-
ity to those employed "in 25 percent or more of the weekly
pay periods in the quarter" preceding the election. Id. at 880.
Fresno was cited approvingly in Suburban Newspaper Group,
195 NLRB 438, 439 (1972), where the Board, as in Motor
Transport, supra, included those who worked approximately
one-fourth of the available workdays in the quarter, in this
case nine.
The instant record does not show on how many days Bill-
meyer performed city-driving work. It does indicate, how-
ever, that he worked in well over 25 percent of the weekly pay
periods in each quarter since July 25. In these circumstances,
I am unable to find that Respondent has sustained its burden
of proving that it intended a permanent reduction of the unit
here involved at any material time. Cf. Crispo Cake Cone
Company, 190 NLRB 352, 354 (1971), enfd. as otherwise
modified 464 F.2d 233 (C.A. 8, 1972).43 I accordingly find
that Respondent 's reliance upon the reduction of the unit as
a basis for failing and refusing to bargain with the Union was
unfounded , apart from any other findings above made.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(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. The Union is the duly certified bargaining representative
under Section 9 of the Act of Respondent's employees in the
following appropriate unit:
All city truckdrivers employed by the Employer at its
Bridgeport , West Virginia, location ; excluding all other
employees, office clerical employees, field employees and
guards, professional employees and supervisors as de-
fined in the Act.
4. Respondent violated Section 8(a)(3) and (1) of the Act
by discharging Grant Bennett on July 25, 1973, in order to
avoid bargaining with the Union.
5. Respondent violated Section 8(a)(5) and (1) of the Act
by failing and refusing to bargain with the Union by:
(a) Failing to bargain with the Union about the decision to
discontinue its sugar and floor covering deliveries and the
effects of such decision;
43 I deem distinguishable the Board 's refusal in Berta, supra, 517, to
include in the letterpress department unit a helper who spent "almost all of
his time working in other departments " on the ground that "the presence
of this helper is insufficient to remove the situation from the line of Board
cases that it will not certify one-man units " In light of the other cases cited
above, Billmeyer's city-driving seems more extensive than the unit work
performed by the helper in Berta
EDWARD M RUDE CARRIER CORP. 893
(b) Failing and refusing to bargain with the Union after
discontinuing its sugar and floor covering deliveries in order
to avoid such bargaining;
(c) Failing and refusing to bargain with the Union on the
ground that the certified unit had been reduced to one man
notwithstanding it had not been so reduced; and
(d) Bargaining directly with Clarence S . Hamilton rather
than through the Union.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2 (6) and (7) of the Act.
(b) Refusing to bargain collectively with the Union as the
exclusive representative of the employees in the following
appropriate unit:
All city truckdrivers employed by the Employer at its
Bridgeport , West Virginia , location ; excluding all other
employees , office clerical employees , field employees and
guards, professional employee' and supervisors as de-
fined in the Act.
THE REMEDY
In order to remedy the unfair labor practices found herein,
my recommended Order will require Respondent to cease
and desist therefrom and from any like or related conduct.
Moreover , in order to effectuate the policies of the Act and
prevent Respondent from profiting from its own unfair labor
practices , my recommended Order will require Respondent
to restore the status quo ante by (1) resuming the hauling of
sugar and floor covering materials and fulfilling its duty to
bargain in good faith with the Union in the certified unit upon
the Union's request ; to this end the certification year shall be
deemed to start from the date Respondent commences to
bargain in good faith (see, e . g., Duncan Foundry & Machine
Works, 185 NLRB 16, fn. 1 (1970)); and (2) offering Bennett
reinstatement with backpay ; in accordance with customary
requirements , reinstatement shall be to his former job or to
a substantially equivalent position, without prejudice to his
seniority or other rights and privileges , he shall be made
whole for any loss of earnings he may have suffered by reason
of the discrimination against him by payment to him of a sum
of money equal to that which he'would have earned from the
date of discharge to the date of a valid offer of reinstatement,
less net earnings during such period to be computed in the
manner prescribed in F W. Woolworth Co., 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB 716
(1962). I shall also recommend the usual posting of notices.
Upon the foregoing findings of fact and conclusions of law,
and the entire record herein , and pursuant to Section 10(c)
of the Act, I hereby recommend the following:
ORDER 14
Respondent , Edward M. Rude Carrier Corporation, its
officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Teamsteis Local Union No. 789 (the Union), or
any other labor organization, by discrimination in regard to
hire or tenure of employment or any term or condition of
employment.
44 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes
(c) Discontinuing the hauling of sugar or floor covering
materials . without affording the Union an opportunity to bar-
gain as to the decision to do so or the effects thereof
(d) Engaging in direct bargaining with an individual em-
ployee or employees concerning terms or conditions of em-
ployment.
(e) In any like or related manner interfering with , restrain-
ing, or coercing its employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Offer Grant Bennett full reinstatement to, his former
job, or to a substantially equivalent job without prejudice to
his seniority or other rights and privileges , and make him
whole for any loss of pay he may have suffered by reason of
his discharge in the manner set forth in the section of this
Decision entitled "Remedy."
(b) Preserve and, upon request , make available to the
Board or its agents, for examination and copying , all payroll
records, social security records , timecards , personnel records
and reports , as well as all other records necessary to analyze
and compute the amount of backpay due under the terms
hereof.
(c) Upon request , bargain collectively and in good faith
with the Union as the exclusive representative of all the em-
ployees in the above-described appropriate unit (the certifica-
tion year to commence with the date such good -faith bargain-
ing begins), and embody in a signed agreement any
understanding reached.
(d) Post at its place of business in Bridgeport , West Vir-
ginia , copies of the attached notice marked "Appendix. 114,
Copies of said notice , on forms provided by the Regional
Director for Region 6, after being duly signed by an author-
ized representative of Respondent , shall be posted by Re-
spondent immediately upon receipt thereof , and be main-
tained by it for 60 days thereafter , in conspicuous places,
including all places where notices to employees are cus-
tomarily posted . Reasonable steps shall be taken by Respond-
ent to insure that said notices are not altered, defaced, or
covered by any other material
(e) Notify the Regional Director in writing , within 20 days
from the date of this Order, what steps Respondent has taken
to comply herewith.
45 In the event that the Board's 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board "