Fraley & Schilling, Inc.

National Labor Relations Board - Board Decisions

Jun 12, 1974

211 N.L.R.B. 422 (N.L.R.B. 1974)

422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fraley & Schilling, Inc. and Fraternal Association of
Special Haulers, Local Union 100. Cases
9-CA-7676-1-2,9-CA-7723-1, and 9-RC-10063
June 12, 1974
DECISION, ORDER, AND DIRECTION
BY MEMBERS JENKINS , KENNEDY, AND
PENELLO
On January 14, 1974, Administrative Law Judge
Stanley N. Ohlbaum issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
conclusions,2 and recommendations3 of the Admin-
istrative Law Judge as modified herein.
We agree with the Administrative Law Judge's
recommendations with respect to the challenged
ballots herein involved4 with the following excep-
tions . The Administrative Law Judge recommended
that the challenge to the ballot of Fred Bloom, a
mechanic at Respondent's Mingo Junction, Ohio,
terminal, be sustained on the ground that he is a
part-time employee, a group specifically excluded
from the stipulated unit. He further recommended
that the challenge to the ballot of Robert Scharfen-
berg, a mechanic at the same location, be overruled,
In the absence of record evidence with respect thereto, we do not adopt
the Administrative Law Judge 's finding contained in the last sentence of the
seventh paragraph in sec III, C, 3 of his Decision that McClure stated that
he had received separate paychecks from Respondent and Lincoln Fraley in
July 1973. However , this does not affect the validity of, or our agreement
with, the Administrative Law Judge's conclusions.
2 The Administrative Law Judge concluded that the presence and
participation of Respondent 's supervisor, Kenneth Schilling, at the union
organizational meeting held on March 10 , 1973, constituted unlawful
surveillance in violation of Sec . 8(axl) of the Act . The record clearly
discloses , however, that Schilling attended the meeting solely on his own
initiative and with the knowledge and consent of Respondent 's other
employees . In these circumstances , we conclude , contrary to the Adminis-
trative Law Judge , that Schilling's attendance does not warrant finding such
violation of the Act Eldo-Craft Boat Co., Inc, 166 NLRB 280, 283; Preiser
Scientific, Inc., 158 NLRB 1375, 1383 . However , as Kenneth Schilling was a
supervisor , his knowledge of union activities is attributable to Respondent
(Cf. Montgomery Ward & Company, Incorporates 115 NLRB 645, 647), and
we find that Schilling 's announcement of a pay raise at this meeting violated
Sec. 8(ax 1).
3 We find merit in Respondent's exceptions to that portion of the
Administrative Law Judge 's recommended remedy in which he provides
that Respondent make whole any owner -operators, in addition to Charles
Clark and Keith Woods, who may have had their tractor -traders
discriminatonly repossessed by Respondent. Inasmuch as the record
discloses no evidence regarding such action by Respondent with respect to
owner-operators other than the above-named individuals, we adopt this
remedial provision only insofar as it relates to the two named individuals.
Further , we do not adopt the direction of the Administrative Law Judge
and no exception to this recommendation has been
filed. We find that the facts concerning these two
employees are virtually identical. Thus, like Schar-
fenberg, Bloom works so substantial a number of
hours for Respondent as to approximate full-time
employment, and both are eligible for group insur-
ance coverage provided by Respondent. Although
the Administrative Law Judge notes that Bloom has
full-time employment elsewhere, the record clearly
discloses that this is also true of Scharfenberg. In
these circumstances, we find that the challenges to
the ballots of Bloom and Scharfenberg must stand or
fall together and we conclude, therefore, that Bloom
should properly be included in the unit. Accordingly,
we shall overrule the challenge to Bloom's ballot.
The Administrative Law Judge further recom-
mended that the challenge to the ballot of Mitchell
Holley, an owner-operator, be sustained on the
grounds that he was paid at least in part with use of
the Internal Revenue Service Form 1099 and that he
performed only part-time services for Respondent.
As set forth in footnote 4 above, however, we do not
attribute conclusive weight to the use of this form for
the purposes of determining employee status under
the Act. Furthermore, with respect to the Adminis-
trative Law Judge's finding that Holley performed
only part-time services for Respondent, the parties'
stipulation at the hearing reflects the fact that the
number of hours which he drove for Respondent
during the representative period herein actually
exceeded those of other owner-operators whom the
Administrative Law Judge found eligible to vote. We
therefore conclude, contrary to the Administrative
Law Judge, that Mitchell Holley is a full-time
that the ballots to which the challenges have been sustained be destroyed
unopened . Rather we hereby direct the Regional Director for Region 9, in
his discretion , to retain or dispose of said challenged ballots in accordance
with the Board 's usual practices.
4 In the absence of exceptions thereto, we adopt pro forma the
Administrative Law Judge 's recommendations to sustain the challenges to
the ballots of William Davis, Kenneth E . Schilling, Robert Schilling, and
Kenneth Schmitt and to overrule the challenges to the ballots of Arnold
Clark, Harrison Robinson, Robert Scharfenberg , and Clifford R. Wyatt.
In adopting the Administrative Law Judge 's recommendations to sustain
the challenges to the ballots of Lincoln Fraley and his dnvers, we agree that
Lincoln Fraley is an independent contractor and that his drivers are not
employees of Respondent herein . In so doing, we find it particularly
significant that Lincoln Fraley does not lease his entire fleet of tractor-
trailers to Respondent, that he does a substantial percentage of his business
with companies other than Respondent , and that it is he , rather than
Respondent, who directs and controls his drivers.
Additionally, we adopt the Administrative Law Judge 's recommenda-
tions to sustain the challenges to the ballots of Dean Perkins , Roy O. Ross,
and Landis Wandling because these owner -operators perform part-time
services for Respondent. We do not adopt the Administrative Law Judge's
finding that these individuals were not employees of Respondent solely
because they were paid, either wholly or in part , with use of the Internal
Revenue Service Form 1099, a manner of lump -sum payment without
deductions for Social Security contributions or Federal withholding taxes.
Contrary to the Administrative Law Judge, we do not consider the method
of payment by Respondent to its owner -operators, standing alone, to be
determinative of the issue of the latters' employee status for the purposes of
the Act.
211 NLRB No. 49
FRALEY & SCHILLING, INC. 423
employee of Respondent and shares a community of
interest with other owner-operators sufficient to
warrant his inclusion in the unit. Accordingly, we
hereby overrule the challenge to his ballot.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent
Fraley & Schilling, Inc., Letart, West Virginia, and
Mingo Junction, Ohio, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Interrogating any employee concerning his or
other employees' union or other lawful organization-
al membership, affiliation, activity, sympathy, or
desire.
(b) Putting into effect, or directly or indirectly
promising, assuring, or holding out in prospect to
any employee, any wage increase, economic better-
ment, or other benefit or thing of value conditioned
upon his withdrawal from or rejection of, or in order
to induce him or other employee to refrain from,
union membership, affiliation, sympathy, support,
assistance, or activity, but nothing herein shall be
construed to require the Respondent to revoke any
wage increase or other benefits which have been put
into effect prior to this Order.
(c) Discharging, suspending, or laying off, or
directly or indirectly threatening any employee with
discharge, loss of employment, layoff, economic or
other loss, harm, detriment, or reprisal to himself or
other employee to discourage membership in or
lawful activity on behalf of Fraternal Association of
Special Haulers, Local Union 100, or any other labor
organization of Respondent's employees.
(d) Penalizing any truck owner-driver by discrimi-
natorily repossessing said owner-driver's truck and
equipment and failing to provide him with employ-
ment because of his union membership or exercise of
any right under said Act, and so as to discriminate
against him in regard to the hire and tenure of his
employment or any term or condition of his
employment by reason of his union membership or
his exercise of any right under the Act.
(e) Directly or indirectly indicating to its employees
that collective bargaining, or employees' exercise of
their right to bargain collectively, is and will be
fraught with physical or economic peril at Respon-
dent's hands, or futile and of no avail, or that its
business will be shut down and employees discharged
or laid off in the event of unionization.
(f) Threatening, warning, advising, or notifying any
employee engaged in an unfair labor practice strike
that said employee or any other such striking
employee will or may be discharged or permanently
replaced or deprived of any economic benefit
accruing in connection with his employment or
unless said employee abandons said strike and
returns to Respondent's employ.
(g) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
right of self-organization; to form, join, or assist any
labor organization; to bargain collectively through
representatives of their own choosing; to engage in
concerted activities for the purposes of collective
bargaining or other mutual aid or protection; or to
refrain from any and all such activities.
2. Take the following affirmative actions which
are necessary to effectuate the policies of the Act:
(a) Offer to Devillo Hubbard, Arnold Clark, and
Harrison Robinson immediate and full reinstatement
to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges;
and make each of them whole for any loss of pay or
income suffered in consequence of the discrimination
against him, in the manner set forth in the "Remedy"
section of the Administrative Law Judge's Decision.
(b) Upon unconditional application, offer to
Charles Clark, Keith M. Woods, and all other
striking employees immediate and full reinstatement
to their former positions or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and
privileges, dismissing, if necessary, any employee
hired subsequent to the day the strike began on April
2, 1973. In the event that there is not then sufficient
work for all such striking employees who apply for
reinstatement, such jobs as are available shall be
filled from among said striking employees seeking
reinstatement, in accordance with their seniority or
other nondiscriminatory practice heretofore applied
by the Respondent in the conduct of its business.
The Respondent shall place those employees, if any,
who apply for reinstatement and for whom no
employment is available after such distribution, on a
preferential hiring list, with priority in accordance
with such system of seniority or other nondiscrimina-
tory practice heretofore applied by the Respondent
in the conduct of its business and, thereafter, offer
such employees reinstatement as such employment
becomes available and before other employees are
hired for such work.
(c) In the event that the Respondent fails so to
reinstate or to place upon a preferential hiring list as
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provided herein any striking employee who has or
shall make unconditional application for reinstate-
ment, the Respondent shall make whole such striker
in the manner set forth in the Remedy section of the
Administrative Law Judge's Decision , for losses
sustained commencing 5 days after the application
for reinstatement until the date of reinstatement or of
placing his name upon such preferential hiring list.
(d) Preserve and, upon request, make available to
the Board or its agents , for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay and other sums due and extent of compli-
ance with the terms of this Order.
(e) Post at its Letart, West Virginia, and Mingo
Junction, Ohio, terminals copies of the attached
notice marked "Appendix." 5 Copies of said notice,
on forms provided by the Regional Director for
Region 9, after being duly signed by Respondent's
authorized representative, shall be posted by Re-
spondent immediately upon receipt thereof, and 'be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(f) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS HEREBY FURTHER ORDERED that the complaint
herein be, and it hereby is, dismissed insofar as it
alleges unfair labor practices not found herein.
DIRECTION
It is hereby directed that the Regional Director for
Region 9 shall, within the time prescribed by the
Board's Rules and Regulations open and count the
ballots of Fred Bloom, Arnold Clark, Mitchell
Holley, Harrison Robinson, Robert Scharfenberg,
and Clifford R. Wyatt and, thereafter, prepare and
cause to be served on the parties a revised tally of
ballots, including therein the count of said ballots. If
the revised tally discloses that a majority of the votes
have been cast for, or against, the Petitioner, the
Regional Director shall issue the appropriate certifi-
cation in accordance with the Board's Rules and
Regulations.
S 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 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 before an Administrative Law Judge, at
which all sides had the chance to present evidence
and arguments, the decision is that Fraley &
Schilling Inc., has violated the National Labor
Relations Act. We have therefore been ordered to
post this notice and carry out its terms.
The National Labor Relations Act gives you, as
an employee, these rights:
To engage in self-organization
To form, join, help or be helped by
unions
To bargain collectively through a repre-
sentative of your own choice
To act together with other employees to
bargain collectively or for other mutual aid
or protection; and
If you wish, not to do any of these things.
Accordingly, we hereby assure you:
WE WILL respect all of your rights under the
National Labor Relations Act.
WE WILL NOT, in violation of the National
Labor Relations Act, question any employee
about whether he or any other employee has
joined or is thinking of joining a union, or about
what he or any other employee is doing or
thinking of doing in the way of union activity.
WE WILL NOT place into effect or promise you
any pay raise or other economic advantage in
order to induce you not to join or help a union.
WE WILL NOT discharge , lay off, terminate,
suspend, or take any other retaliatory or discrimi-
natory action or make any threat against any
employee or truck owner-operator because he has
joined or helped, or is thinking of joining or
helping, a union, or trying lawfully to get other
employees to join or help.
WE WILL NOT, in violation of the National
Labor Relations Act, discourage membership in
or giving help to or taking help from Fraternal
Association of Special Haulers, Local Union 100,
or any other labor organization of our employees
or which our employees may wish to join or to
help or take help from.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
your right to self-organization; to form, join, or
assist any labor organization ; to bargain collec-
tively through representatives of your own choos-
ing; to engage in concerted activities for the
FRALEY & SCHILLING, INC. 425
purpose of collective bargaining or other mutual
aid or protection; or to refrain from any and all
such activities.
WE WILL offer the following persons immediate
and full reinstatement to their former jobs (or
substantially equivalent jobs), without prejudice
to their seniority and other rights and privileges;
and we will also pay them backpay, with interest,
for any wages or other sums lost by them:
Devillo Hubbard
Arnold Clark
Harrison Robinson
WE WILL, upon application, reinstate to their
former or substantial equal employment or status,
without affecting their payrates, seniority, or
other rights and privileges, Charles Clark, Keith
M. Woods, and any other employees and truck
owner-operators who went on strike on or after
April 2, 1973, and, to the extent necessary to
accomplish that, WE WILL discharge all employ-
ees, replacements, or substitutes hired since them.
And, in the event we fall to reinstate any striking
employee or truck owner-operator who applies
for reinstatement, WE WILL compensate each and
every such person by paying to him or them
moneys covering any and all losses (including
backpay and interest) sustained commencing 5
days after the application for reinstatement. In
the event there are insufficient jobs open for the
purpose of such reinstatements, WE WILL set up
and hire such striking employees and truck
owner-operators from a preferential hiring list.
All of you are free to join or not to join Fraternal
Association of Special Haulers, Local Union 100, or
any other union, as you see fit, without any
interference, restraint, or coercion from us in any
way, shape, or form.
FRALEY & SCHILLING,
INC.
(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
I Dates throughout are 1973 unless otherwise specified.
Case 9-CA-7676-1 & 2 Charge in Case 9-CA-7676- 1 filed March 28
(1973), charge in Case 9 -CA-7676-2 filed April 4, amended charges in
Cases 9-CA-7676-1 & 2 filed April 23, complaint issued May 17
Case 9-CA-7723- 1 Charge filed April 23, amended charge filed May 7,
second amended charge filed June 20 , complaint issued June 26
Case 9-RC-10063 RC petition for certification of representative filed by
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, Federal Office Building, Suite 3003,
550 Main Street, Cincinnati, Ohio 45202, Telephone
513-684-3686.
DECISION
Preliminary Statement ; Issues
STANLEY N. OHLBAUM, Administrative Law Judge: This
consolidated proceeding' under the National Labor
Relations Act as amended, 29 U.S.C. § 151 et seq. ("Act")
was tried before me in Point Pleasant, West Virginia, and
Gallipolis, Ohio, on July 24-27, 1973, with all parties
participating throughout by counsel, who were afforded
full opportunity to present evidence and contentions, with
the record remaining open at the request of General
Counsel because of the failure of a witness to appear.
Thereafter, upon unopposed application of the General
Counsel, received on August 3, to rest his case, close the
record, and set a date for filing of briefs, the record was
closed by my order of August 6. Briefs were subsequently
received on September 10 and 11 after extension of time
granted on application of counsel. The voluminous record
and briefs have been carefully considered.
Chief among the numerous issues presented are: Case
9-CA-7676-1 & 2: whether Respondent Employer violated
Section 8(a)(1) and (3) of the Act through unlawful
interrogation and surveillance of, economic threats against,
and promises to employees ; through wage increase to deter
unionization; and through discharging and failing to
reinstate employees because of union activities and
sympathies; and whether a stake subsequent thereto was
caused or prolonged by Respondent's unfair labor prac-
tices; (2) Case 9-CA-7723-1: whether Respondent violated
Section 8(a)(1) through further economic threats to deter
union activities and sympathies; (3) Case 9-RC-10063:
resolution of 19 separately challenged ballots in the Board
secret-ballot representation election.
Upon the entire record and my observations of the
testimonial demeanor of the witnesses I make the follow-
ing:
FINDINGS AND CONCLUSIONS
1. JURISDICTION
At all material times, Respondent Fraley & Schilling,
Inc., has been and is an Indiana corporation engaged in the
business of contract hauling and transportation. In the
course and conduct of that business during the representa-
tive year immediately preceding issuance of the com-
Union March 28, stipulation for certification upon consent election, dated
April 19 and 21, approved by Regional Director April 26 , representation
election conducted under Regional Director 's auspices , May 10-24 by mail,
resulting in 19 challenged ballots out of 31 cast , Regional Director 's order
directing hearing, consolidating cases , and transferring case to the Board,
June 28
426
plaints, Respondent performed services valued in excess of
$50,000 for customers located outside of the State of
Indiana ; and, during the same period , Respondent had a
direct inflow in interstate commerce of goods and
materials valued in excess of $50 ,000, purchased by it and
caused to be shipped to it in the State of Indiana directly
from points outside of Indiana.
I find that at all material times Respondent has been and
is an employer engaged in commerce and in operations
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act; and that the Charging Party-Petitioner
Union has at all those times been and is a labor
organization as defined in Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. General Nature of Respondent's Business
Operations
Respondent Fraley & Schilling, Inc., an Indiana corpora-
tion , is a trucking contract carrier maintaining two
terminals : one in Letart , West Virginia , and the other in
Mingo Junction, Ohio, a distance of about 165 miles.
Additionally, at times Respondent stores vehicles at the
Rushville , Indiana, premises of Fraley Truck and Imple-
ment Sales, Inc. (a farm machinery and GMC truck sales
and service enterprise wholly owned by Respondent's
principal , Kimber J . Fraley, and his wife, who live in
Rushville), but the Rushville, Indiana, location , which is
some 250 miles from Letart and 300 miles from Mingo
Junction, is not nor is it regarded as a terminal of
Respondent . In the past Respondent has apparently hauled
metals principally for Foote Mineral Company , a ferroal-
loys and silicon metals dealer headquartered in Exton,
Pennsylvania, with locations in Steubenville , Ohio, as well
as in or near Letart (known as "Graham Station") and also
Mingo Junction , and whose products are distributed
mainly in twelve States; Foote has no premises in or near
Rushville . Respondent is not, however , restricted to
hauling for Foote.
Respondent (Fraley & Schilling , Inc.) is owned half by
Earl W . Schilling , its president , and half by Kirnber J.
Fraley ( the principal of Fraley Truck and Implement
Sales , Inc., located in Rushville), its vice president; Ruby
Schilling , Earl Schilling's wife , who lives and works with
her husband in Mingo Junction , serves as its treasurer and
secretary . All three are active in Respondent 's operations.
Earl W. Schilling operates Respondent's Mingo Junction
terminal , while Charles L. Wyatt runs Respondent's Letart
terminal as its manager and dispatcher.
In its operations-as will be extensively described below
(III) in connection with issues presented in the consolidat-
ed representation proceeding-Respondent utilizes vari-
ous categories of truckdrivers, including some directly
employed by it under a conventional employer-employee
relationship ("company drivers") and others ("owner-
operators" or "brokers") who drive under a leaseback
arrangement a truck sold to them by Respondent (or some
it.
2 Holley was neither called on to corroborate this nor produced to deny
J An employer's office has been characterized as its formal or impressive
if not ominous "locus of final authority." General Shoe Corporation, 97
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other corporation owned in whole or part by a principal'of
Respondent) in a security arrangement such as a condi-
tional sale; some in the latter category may , in turn , hire or
have a driver other than themselves to operate such truck
or trucks . As of March 1973, Respondent itself directly
owned and operated at least around 10 trucks , 16-18 flats,
and 6 dump trailers.
In addition to the foregoing , each of Respondent's
principals (i.e., Earl W . Schilling and Kimber J. Fraley) has
an adult son who, as will appear , is involved in this case;
i.e., Kenneth E. Schilling , who, unlike other employees
there , works primarily in the maintenance shop or garage
at Respondent's Letart terminal at a relatively high fixed
salary, and at times serves as a stand-in there for Letart
Terminal Manager Charles Wyatt, but also at times in the
same capacity for his father Earl W. Schilling at the Mingo
Junction Terminal; and Lincoln Fraley (son of Respon-
dent's vice president , Kimber J. Fraley), who lives in
Rushville (250 miles from Letart and 300 miles from
Mingo Junction) and himself owns 4 tractors and 5 trailers
leased to Respondent , with drivers hired by Lincoln
Fraley, and who hauls also for Fraley Truck and
Implement Sales, Inc. (his parents' enterprise located in
Rushville) among others . For some unexplained reason,
according to Lincoln Fraley he conducts his Rushville
trucking business under the firm name and style of "Fraley
Truck & Implement," a name highly similar to that of his
parents' Rushville sales and service organization.
B. Interference, Restraint, and Coercion : Facts as
Found
1. Interrogation, threat of violent interference,
economic blandishments , and threats to thwart
employees' protected concerted activities
Matters to be described have been culled from the
record IchronologicallyI so as to afford a view of events in
the order in which they transpired.
Initial contact with the Union (Charging Party-Petitioner
herein) was made in early February 1973, by Respondent's
truckdriver Harrison RRobinson-lone of the dischargees
here-on behalf I of 'or I with I a I view toward organizing
Respondent 's drivers . Around March 1, when the Union
was again apprised or reminded-this time through its
steward of across-the-road metal alloys truckdrivers of a
nearby trucking company, like Respondent, hauling for
Foote Mineral Company-of the desire of Respondent's
truckdrivers to organize, an invitation was extended to the
latter to attend a union meeting of the other company's
truckdrivers at nearby Marietta , Ohio, on the evening of
March 10 . At around the same time , i.e., March 1,
Respondent's truckdriver Harrison Robinson , who had
made the initial contact with the Union , was questioned by
Respondent 's Letart Terminal Manager Charles J. Wyatt,
in the presence of fellow truckdriver Holley,2 in Wyatt's
offices as to what Robinson "thought about the Union," to
which Robinson, later discharged, candidly replied that he
NLRB 499 , 502. All other things being equal, it cannot be gainsaid that the
questioning of a truckdriver in the employer's office concerning union
matters takes on a significance it might not otherwise have.
k
FRALEY & SCHILLING, INC.
was "for it 100%." This episode, as credibly testified to by
Robinson at the trial, stands unchallenged by Wyatt.
Indeed, the complaint allegation concerning it is undenied
in Respondent's answer, which concedes in so many words
that "Charles Wyatt may have inquired of an employee
about his interest in the Union on March 1, 1973" (Answer,
par. 5(a)(i)). I accordingly find the complaint allegation
(Complaint,Case 9-CA-7676-1,2, par. 5(a)(i)) established by
substantial credible evidence.
The complaint further alleged (id., par. 5(a)(iv)) that on
March 3-a few days after the described interrogation of
Robinson by Letart Terminal Manager Wyatt-Wyatt
uttered the coercive remark to Robinson that if he (Wyatt)
had known that a union representative had been at the
terminal he would have left him lying in the middle of the
floor-none other than a coercive threat of uncalled-for
physical violence. Testifying concerning this, Robinson
credibly swore that on the day in question, the union
steward employee at the neighboring trucking company
called for him at the Letart terminal garage and he and a
few fellow employees then went to a nearby restaurant,
where they were observed by other employees of Respon-
dent as they discussed attendance at an upcoming union
meeting of the other company's truckdrivers on March 10
(described below); and that it was upon Robinson's return
to the garage that Respondent's Letart Terminal Manager
Wyatt sounded off to him that "If I'd [Wyatt] known that
son of a bitch was from F.A.S.H. [Union], I'd have left him
lying in the middle of the floor." The episode is undisputed
by Wyatt, notwithstanding his having testified as Respon-
dent's witness . Accordingly crediting Robinson's testimo-
ny, I find the complaint allegation established by substan-
tial credible proof.
Further concerning Respondent's Letart Terminal Man-
ager Wyatt, it is alleged (id., par. 5(a)(ii)) that on March 7
he again interrogated an employee, and deprecatingly
recommended a different union. Although Respondent's
answer (id., par. 5(a)(ii)) does not unequivocally deny the
entire allegation of the complaint, and Wyatt's testimony is
merely to the effect that he cannot recall the incident or all
of it, it appears-from Wyatt's testimony-that the
incident involved or may have involved Respondent's
driver William Davis (still another dischargee), who,
however, did not testify at the trial. Under the circum-
stances , I find this allegation not established.
It will be recalled that around March 1 an invitation had
been extended to Respondent's organizing truckdrivers to
attend the regular union meeting of the truckdrivers of a
neighboring plant on March 10 at Marietta. Conceding
through its president Earl W. Schilling at the trial that at
least as early as March 10 it was aware that union activity
by its employees was "in the wind," Respondent called and
held a meeting of its own with its truckdrivers and
mechanics on the morning of the same day, March 10 (a
Saturday), at its Letart terminal. At that meeting, attended
by Respondent's drivers and mechanics 4 and its principals
4 It is noted that neither Lincoln Fraley nor any of his drivers was there.
5 At that time , the "company drivers" (i.e., Respondent's direct
truckdriver employees ) were being paid 20 percent of a "flat load" and 22
percent of a "dump load" gross income or price, whereas the truckdriver
"owner-operators" or "brokers" were receiving 72 percent of the price of
each type of load . A "flat load" is a load boxed on skids removed at
427
Earl Schilling and Kimber J. Fraley, as well as Kenneth
Schilling and Letart Terminal Manager Wyatt, Fraley
indicated that Respondent had learned there was "dissatis-
faction" and wanted to know why. When the drivers (of
each category) indicated they wanted more money, they
were informed by Fraley that Respondent could not afford
to and would not give it .5 Other sources of dissatisfaction
were, then discussed, following which the drivers caucused
privately (without Kenneth Schilling; cf. infra, later union
meeting) and formulated their demands-an increase of
3 percent on "flats" and 1 percent on "dumps" for
"company drivers" and an increase of 2 percent on each
type of load for "owner-operators" or "brokers." When the
drivers reassembled and through their spokesman Devillo
Hubbard-another dischargee herein-presented these
demands to Respondent, they were summarily rejected by
Respondent, terminating the meeting.
On the evening of the same day, Saturday, March 10,
Respondent's drivers attended the regular union meeting at
Marietta, mentioned above, of the drivers of the nearby
trucking company, to which they had been invited. At this
meeting there were about 15 drivers of the neighboring
plant and about 10 of Respondent's drivers. The regular
meeting of the neighboring truckdrivers was followed by
an organizational meeting of Respondent's drivers. During
the course of the general orientations and discussion which
ensued, it was pointed out that Kenneth Schilling, a son of
Respondent's president and principal Earl Schilling-en-
trusted with supervisory responsibilities, as shown below
-was there, presumably serving at least to dampen if not
inhibit free discussion; but, notwithstanding indications
that he should withdraw, he remained. During this
discussion, Respondent's driver Devillo Hubbard-also,
like Harrison Robinson (supra) a dischargee here-partici-
pated actively as the designated spokesman of Respon-
dent's other drivers; reviewing their problems, Hubbard
pointed out among other things that Respondent had
"flatly refused" their request for a raise. Union President
William J. Hill advised them that if 30 percent joined the
Union they could request an NLRB election, but that if
over 50 percent joined they could seek recognition directly.
Kenneth Schilling indicated that Respondent had 16-18
truckdrivers. After a brief private caucus among Respon-
dent's employees (still with Kenneth Schilling participating
and, to no avail, informing the drivers that his father and
Fraley had decided to give them a .1-percent raise) the
meeting was resumed, the employees indicating through
their spokesman Devillo Hubbard that they would join the
Union, whereupon all except Kenneth Schilling and Dale
Stouts executed union membership cards-to the tune
of Kenneth Schilling stating to them, "My dad's not going
to like this" and "Dad's [i.e., Earl Schilling] going to be
awfully mad about it"-paid union initiation fees and
dues, and signed a petition. The employees then elected
Devillo Hubbard as their steward and Charles Clark as
assistant steward or committeeman. Union President Hill
destination; a "dump load" is a load , such as alloy, merely dumped out at
destination.
6 Testifying as Respondent's witness, its Vice President Kimber J. Fraley
on cross-examination identified Stout as the driver of a truck owned by
Fraley's son Lincoln Fraley (Rushville , Indiana , trucking company).
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
urged them to endeavor to enlist other employees into the
Union so as to assure the largest possible majority,
supplying them with union organizational 1 yerature,
membership application cards, and return envelopes.
Before they left, however, Kenneth Schilling and Dale
Stout, stating that they had attended the meeting only for
informational purposes, warned the others that they should
not have joined the Union, Schilling pointedly stating that
"When my.dad [i.e., Earl Schilling, Respondent's president
and principal] finds out who all joined, he's going to be
awfully mad." At this, Hill reminded Schilling and Stout
that employees had the legal right to join a union.
It is alleged in the complaint (Case 9-CA-7676-1,2, par.
5(c)) that the presence and participation of Kenneth
Schilling at Respondent's employees' organizational meet-
ing on March 10, as described, constituted employer
surveillance of employees' protected concerted activities.
Particularly in view of Kenneth Schilling's conceded
attendance, the nature of his participation, his supervisory
status in Respondent's organization, and Respondent's
learning from him of what transpired there,? I find that this
allegation has been established by substantial credible
evidence.
Further in connection with the described March 10
evening union organizational meeting of Respondent's
employees, following Respondent's own March 10 morn-
ing meeting with them in which it had flatly rejected their
demands for a pay increase and refused to give any, it will
have been noted that Kenneth Schilling, the son of
Respondent's president and principal, who attended and
participated in the employees' later private meeting even
when it was suggested he leave, not only repeatedly warned
about his father's displeasure at the latter meeting but also
conveyed to the employees there that his father and
Respondent's other principal (Kimber J. Fraley) had
decided to give them a 1-percent raise. If made, such a
statement on such an occasion could only have been
designed and calculated to dampen the organizing employ-
ees' ardor for unionization and to wean them away from
joining the Union. Upon the basis of credited testimony of
General Counsel witness Devillo Hubbard to that effect
-unchallenged by Kenneth Schilling, although called as
Respondent's witness, or by Dale Stout who attended that
meeting with Kenneth Schilling but was unexplainedly not
called by Respondent to testify, and in light of the
admissions of Respondent's witness Earl W. Schilling
during cross-examination, (1) that his co-principal Kimber
J. Fraley had informed Kenneth Schilling that they had
decided to give the drivers a 1-percent raise on "flats," (2)
that following the March 10 union meeting his son
(Kenneth) informed him that he had told the employees at
that meeting about the 1-percent raise, and (3) that
Respondent in fact placed such a raise into effect as of
March 10, 1973-I find that Respondent did indeed,
substantially as alleged in the complaint (Case
9-CA-7676-1, 2, par. 5(d)), on March 10, hold out,
promise, and grant to its employees a pay increase in order
to discourage union activities and sympathies.
After the March 10 union meeting , Respondent 's drivers
continued their organizational activities . Within 5 days, the
Union-which had received 7 or 8 signed membership
cards at the March 10 meeting 8-received 3 more signed
membership cards9 from Respondent 's driver spokesman
Devillo Hubbard , who a few days later (March 18) notified
Union President Hill that he had been interrogated by
Respondent and fired from his job . Two days later (March
20) Devillo Hubbard notified Hill that Respondent 's driver
William Davis, another outspoken union advocate, had
also been terminated . These and other employee termina-
tions are separately considered below.
The complaint (Case 9-CA-7676-1, 2, par. 5(b)(i) and
(ii)) alleges that, meanwhile, on or about March 14
Respondent 's President Earl Schilling interrogated an
employee at its Mingo Junction Terminal concerning his
union sympathies and activities , and threatened to shut
down if the Union became the employees' collective-
bargaining agent . The answer (par. 5 (b)(i)) "admits that
Earl W. Schilling on March 4,1973 [sic]',,may have inquired
of an employee about his interests in the Union" and
denies the threat to shut down. Testimony of Earl Schilling
as Respondent's trial witness , on cross-examination,
indicates only that the episode in question occurred on
March 14 and involved driver William Davis, who, as
already indicated in another connection , failed to testify at
the trial ; Earl Schilling himself testified only that in the
course of a discussion concerning the Union which may
have been started by Davis (Schilling professed to be
unable to recall who started the conversation), when he
(Schilling) asked Davis how he felt about the Union, Davis
said he was satisfied with it and volunteered that others
had also joined . Conceding that he remarked that "I
Schilling didn't see how we could afford the union,"
Schilling flatly denied he said the Company would close if
the Union came in . Under the circumstances, in the
absence of any testimony by Davis concerning the episode
alleged in the complaint , I find the described allegations
not established by substantial credible evidence in accord- -
ance with General Counsel's burden.
The complaint ( id, par . 5(a)(iii)) further alleges that on
(March 15 Respondent's Letart Terminal Manager Charles
Wyatt also threatened that Respondent would close its
' doors if the Union became its employees ' bargaining agent.
This allegation is denied in the answer . At the trial,
General Counsel's impressively credible witness Arnold
Clark swore that , in the conversation in question, in
response to Clark's query as to what Wyatt thought about
a union , Wyatt said, "[Not] too much" and added that
,Respondent would have to lay off employees and "close
the doors" if the Union came in. Concerning the foregoing,
ILetart Terminal Manager Wyatt, testifying as Respon-
Ident's witness, swore merely that he is unable to "recall"
,any discussion with Clark on March 15 and that he is
Tunable to "remember exactly" the words attributed to him
r Testifying as Respondent 's witness , its President Earl W. Schilling 9 Ibid. According to Hubbard , these 3.additional cards made a total of
conceded on cross-examination that his son Kenneth informed him about 11 (including one mechanic) out of 17 drivers (5 "company drivers" and. 12
the employees ' March 10 union organizational meeting and "some that was "owner-operators" or "brokers"-excluding Lincoln Fraley and his Rush-
there ." ville crew) in Respondent's employ or pay at that time.
8 Undisputed testimony of General Counsel witness Devillo Hubbard.
FRALEY & SCHILLING, INC. 429
by Clark, which he (Wyatt) nevertheless concedes "may
have been said" but which he is unable to "remember
now." However , following these possible memory lapses,
when Wyatt's pretrial statement was displayed to him for
the purpose of refreshing his recollection he readily
conceded that on the occasion in question he had indeed
told Clark that " if the union got in the company would
have to close the doors ." Upon this record , I find that
Respondent through its supervisor and agent Letart
Terminal Manager Charles Wyatt threatened plant closure
in the event of unionization , substantially as alleged in the
complaint.
2. Discharges of employees
a. March 16: discharge of Devillo Hubbard
It will be recalled that Devillo Hubbard served as the
designated spokesman of Respondent's drivers when
Respondent assembled them to meet with it on March 10,
as well as at the drivers' own organizational meetings and
that he was elected as their union steward. The complaint
(Case 9-CA-7676-1, 2, par. 6) alleges that Respondent
discharged Devillo Hubbard on March 16, and has failed
and refused to reemploy him since then, because of his
union activities and sympathies and in order to discourage
union membership. Respondent' s answer (par. "6") alleges
that Hubbard was merely "laid off" because of "anticipat-
ed loss of work" which it feared would result from what it
was informed "would be [a] cut back" of work from a
planned "phasing out" of one of the plants of its customer
Foote Mineral Company.
Devillo Hubbard worked as an over-the-road "Company
driver" 10 of Respondent continuously from August 1971
until his precipitate discharge on March 16, 1973. In the
intervening period he had never been reprimanded or
criticized in regard to his job performance.11 He worked
out of Letart terminal under Terminal Manager Wyatt,
who hired him, although it was Respondent's President
Earl Schilling who fired him. Like other company drivers,
Hubbard usually drove the same truck, although he had
been successively "promoted" to better or newer trucks; at
the time of his discharge, this was a 1972 GMC Diesel
Astro, of some 10 trucks and 16-18 flats, 6 dump trailers,
and other vehicles and rigs in operation by Respondent.
Mention has already been made of Hubbard' s acting as
the drivers' spokesman at the Company-convoked meeting
on the morning of March 10, and of his attendance at the
union organizational meeting on the evening of the same
day (March 10), where he was elected as the drivers' union
steward.
Less than a week after these events, on March 16
(Friday) Hubbard was on his way back to Letart terminal
10 I.e., as explained above, "company drivers"-as distinguished from
"owner-drivers" or "brokers"-are conventional employees of Respondent.
11 Indeed , Hubbard 's testimony , corroborated by his logbook, shows
that he was actually utilized to drive in excess of the alleged legal maximum
of 70 hours per week.
12 I.e., Arnold Clark, Humble, and William Davis.
13 In the total context this belies Schilling's excuse to Hubbard that
"We're selling the truck" as an indication of no truck for Hubbard to drive,
as the reason for his discharge.
14 See fn. 13, supra.
15 Particularly after observing Schilling's equivocating and evasive
after delivering a load at Lebanon, Pennsylvania, a run of
around 400 miles. In accordance with usual practice, when
he was about halfway back, he telephoned in to Letart,
where Respondent's President Earl Schilling-without
previous notice or indication of any kind- announced to
Hubbard, "We're going to have to let you go, Hubbard.
We're selling the truck." Hubbard responded, "Well, thank
you for the, such a long notice." When Hubbard reached
Letart with the truck, Terminal Manager Wyatt knew
about Hubbard's precipitate discharge.
At the time of his discharge, Hubbard was No. 2
"company driver" in order of seniority-with three
"company drivers" with less seniority; 12 also , Respondent
had some driverless trucks on hand at this time.13 In all of
his term of employment, Hubbard knew of no other
instance where any driver lost his job because the
particular truck he was driving at the time was sold;14 as a
matter of fact, Respondent has utilized a seniority system,
in that drivers (like Hubbard himself) have been offered
the opportunity to "step up" to newer trucks in the order of
the drivers' seniority. Notwithstanding Respondent's cur-
rent allegation in its answer that Hubbard was "laid off
because of anticipated loss of work" since Respondent
"was informed . . . that its services would be cut back by
[Foote Mineral Company] due to the phasing out of one of
their plants," Hubbard-a straightforward and utterly
convincing witness-testified credibly that at no time was
any cutback or reduction by Foote so much as mentioned
to him by Schilling or anybody else, the only "reason"
given to him being that Respondent was selling the
particular truck he was then driving.
Respondent's President Earl Schilling testified in answer
to Hubbard's foregoing account of his discharge. Notwith-
standing Respondent 's allegations in its answer as set forth
above, Schilling swore that Hubbard was discharged
because of Respondent's need to cut back in view of "a
financial obligation to meet"; and that when his coprinci-
pal Kimber J. Fraley (coprincipal with Fraley's wife in the
aforedescribed truck sales business) asked him if he was
interested in selling a year-old truck with low mileage, he
answered in the affirmative, and since the truck Hubbard
was at that time driving met that description he "laid off"
but did not "fire" Hubbard.15 Professing at the trial not to
know which of his Company's drivers had seniority,
Schilling did not dispute that at the time in question
Hubbard was indeed No. 2 in seniority of four "company
drivers," of whom two (Hubbard and Arnold Clark, both
union activists) were terminated and a third (McMillan)
went on strike, with only one (Homol) still there. Schilling
conceded that at the time of Hubbard's termination he was
aware of Hubbard's union activity. Schilling further
conceded that at the time of Hubbard's termination
testimonial style, I am wholly unconvinced by Schilling's current semanti-
cism that he merely "laid off" but did not "fire" Hubbard. Crediting
Hubbard , I find that Schilling did indeed fire Hubbard. That in any event
no particular words need be used to constitute a discharge . See, e.g.,
N.L.R.B. v. Trumbull Asphalt Company of Delaware, 327 F.2d 841 (C.A. 8,
1964), "The fact of discharge of course does not depend on the use of formal
words of firing. It is sufficient if the words or action of the employer 'would
logically lead a prudent person to believe his tenure had been terminat-
ed' "; Blackmun , J. Furthermore, at no time has Hubbard been recalled;
indeed, Respondent expressly refused to reinstate him, notwithstanding new
hires.
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent had six GMC Astrotrucks of essentially the
same type as that operated by Hubbard-including two
1973 models (operated by Arnold Clark, another union
activist also terminated as described infra, and Homol), a
1971 model (operated by McMillan), and the 1972 model
operated by Hubbard-and he claims to be unaware of
whether Fraley had any comparable trucks as the one
operated by Hubbard, on his lot for sale. Schilling also
conceded that Hubbard could have been transferred to or
designated to drive a "broker" (i.e. not company-owned,
but leased back to Company) truck at the time of the
alleged "sale" of the particular truck Hubbard was
operating; and that it is Respondent's usual practice to
transfer to another truck a driver who does not have a
truck to drive because, for example, it has broken down.16
Although Schilling first denied hiring any driver after
Hubbard was fired ("laid off," in Schilling's usage), on
further questioning he conceded 17 that Respondent may
indeed have hired one Shubert as a driver in March, as well as
one Mitchell Holley, Jr., allegedly in February but not
appearing on the payroll until March 14, 2 days before
Hubbard's termination; 18 and that the truck which Holley
started driving in June (1973) was an Astro 1971, although
Respondent offered no such job to Hubbard. On top of his
contradictory, evasive, and utterly unimpressive testimoni-
al performance concerning Hubbard's discharge, asked
during cross-examination whether Hubbard was laid off
for any reason other than "anticipated loss of work"
relating to a supposed phasing out of some work from a
feared shutdown of a plant of Foote Mineral Company, as
alleged in the answer, Schilling's response was, "No." It
seems highly unlikely that if this had indeed been
Schilling's real reason for terminating Hubbard he would
not have told him so.
Schilling's coprincipal in Respondent, Kimber J. Fraley,
also testified in justification of Respondent's termination
of Hubbard. With regard to the feared retrenchment by
Foote Mineral Company, Fraley testified that a planned
phaseout of Foote's Mingo Junction (i.e., Steubenville)
plant "in 1973" was scheduled to be completed by
"January, 1974 " (i.e., 10 months after Hubbard's termina-
tion ), at which time Respondent could "expect" a 30-
percent drop in Foote haulages. On cross-examination,
however, Fraley conceded that in 1973 up to the time of
Hubbard's termination there had been no decline in
Respondent's business. Fraley further conceded, after
some equivocation, that Respondent is at liberty to obtain
business elsewhere in the event of a decline of its business
from Foote, since it is not contractually limited to serving
Foote alone; moreover, that Respondent is at liberty to
pick up return loads from any source (even on outgoing
trips for Foote), on tripleases with other truck carriers
(with payments on such return loads made by consignors
is Since, as conceded by Schilling , Respondent had five such other
trucks and only three other "company drivers" at the time, it obviously had
extra trucks around for Hubbard to drive.
17 On this (as well as other bases) I was constrained to revise my previous
impressions as to Earl Schilling 's credibility, and to form an adverse
opinion.
19 An all-party stipulation entered into on the record near the conclusion
of the trial establishes the facts , as above described , concerning Shubert and
Mitchell Holley , Jr., to be true.
or consignees to the other truck carriers , who in turn
compensate Respondent). Notwithstanding the potentially
critically important nature of the issue , as raised by
Respondent in its answer (par. "6") that the reason
Hubbard was "laid off" was the anticipated decline in
Foote business, Respondent failed to produce any records
at the trial to establish such a fact, nor did it offer any
explanation for its failure to do so . Finally, before leaving
the witness stand, Fraley-an extremely unconvincing
witness , in part because of continued evasiveness and
contradictions-conceded that Respondent 's haulings for
Foote have not in fact declined (notwithstanding Hubbard's
termination for that alleged reason months before ).
With respect to the alleged "sale" of the particular truck
being driven by Hubbard as another supposed "reason"
for Hubbard 's termination , Fraley shed light on this as
well-but not favorably to Respondent 's contention, since
Fraley conceded that Respondent did not in fact sell the truck
that Hubbard had been operating, but that Hubbard was
nevertheless never restored to his job.19
Against these equivocating, evasive, contradictory, and
unpersuasive testimonial accounts of Schilling and Fraley,
and after comparing testimonial demeanor , I have no
hesitation in preferring and crediting the testimony of
Hubbard. In so doing and finding, as I do, that General
Counsel has sustained his burden of proof by a clear
preponderance of substantial credible evidence that Hub-
bard was indeed discharged because of his union activity, I
also give weight to the fact that Hubbard was an
experienced driver with an unblemished record ; that he
was second in seniority among Respondent's "company
drivers" ; that although he was fired, junior drivers were
retained; that notwithstanding his discharge, other drivers
were hired, but he was not recalled ; that he could readily
have been assigned to another truck, either company-
owned or "broker" owned (i.e., leased to Respondent);
that, notwithstanding Respondent's stated excuse for firing
him, the truck Hubbard was driving was concededly not
actually sold ; that although readily available to Respon-
dent , not only was no convincing proof produced to the
contrary, but it was conceded by Respondent that its
business from Foote-alleged in its answer as the reason it
terminated Hubbard-has not in fact declined; and,
finally, that Hubbard was precipitately and with no
advance notice discharged only after his assumption of
elected leadership in the drivers' union organizational
activities which were-as will be more particularly shown
below-held in odium by Respondent .20 Under these
circumstances, the only rationally acceptable explanation
for Hubbard's discharge was his union leadership activi-
ties, and I so find.
19 In what may have been an attempt to reconcile his testimony on this
subject with that of Schilling (described above), Fraley testified that he did
inquire whether the truck Hubbard was driving was available for resale,
after he (Fraley) had sold a truck in his GMC truck sales agency , but that
the truck Hubbard had been driving has never in fact been sold.
20 "Obviously the discharge of a leading union advocate is a most
effective method of undermining a union organizational effort. " N.L.R.B v.
Longhorn Transfer Service, Inc., 346 F.2d 1003 , 1006 (C.A. 5, 1965).
FRALEY & SCHILLING, INC.
b. March 19: discharge of William Davis
According to the complaint (Case 9-CA-7676-1, 2, par.
7), Respondent also discharged and has failed to
reinstate its driver William Davis because of his union
membership, activities, and sympathies. Respondent's
answer denies this and additionally states that Davis was
merely a temporary employee filling in while the truck of
one of its "brokers" (Wandling) was being repaired, and
that after its repair the "broker" decided to drive his own
truck instead of having Davis drive it.
Whatever the facts of this matter or the merits of this
defense may be, Davis did not appear to testify at the trial;
nor was his case established independently of his testimo-
ny. At General Counsel's request at the conclusion of the
remainder of the case, I granted a continuance in order to
afford Davis an opportunity to appear or otherwise
proceed with his case, or to sever the Davis matter upon
adequate showing as to why he could not attend. No such
showing was made; instead, General Counsel indicated he
was unable to locate Davis, withdrew his motion for a
continuance or severance, rested his case , and requested
that the hearing be closed-an application which I granted
without opposition.
Under these circumstances it is unnecessary to detail
such evidence as Respondent adduced concerning this
matter, and I find upon the entire record that there is a
failure of proof as to the described allegations of the
complaint with regard to William Davis.
c. March 26: discharge of Arnold Clark
On March 24, another union organizational meeting of
Respondent's truckdrivers was held. At this meeting, at the
home of Union Steward Devillo Hubbard (discharged by
Respondent on March 16 under circumstances detailed
above) in Mason, West Virginia (near Respondent's Letart
terminal), there were present in addition to Devillo
Hubbard approximately 10 employees, including Arnold
Clark, Harrison Robinson, William Davis, Young, Woods,
Staats , McMillan, and Cornell. The discussion centered
around Respondent's interrogations of its drivers; its
threats of going out of business and selling the trucks in
case of unionization; the payraise of 1 percent for "flat
loads" (i.e., flatbed trailer loads) which it had placed into
effect after the March 10 organizational flurry; Respon-
dent's alleged refusal because of its employees' union
organizational activities, in the case of driver Young-who
had purchased a truck from or through Respondent,
simultaneously leasing it back exclusively to . Respondent
-to continue its past practice of advancing and deducting
insurance premiums from the owner-driver's gross pro-
ceeds; Respondent's withholding, also allegedly contrary
to past practice, of a substantial lump sum of money ($300)
from the pay of driver Clark for an insurance premium
seemingly for a long period in advance; and the employees'
great uneasiness over "who's going to be next?" When the
idea of striking was thereupon broached, Union President
Hill discouraged it and recommended and the drivers
agreed not to strike except "as a last resort," but instead to
22 Clark explained that Wyatt had also reassured him that a posted
notice at Letart that drivers carrying overloads across the Pomeroy Bridge
431
file charges with the National Labor Relations Board and
have Union President Hill meet with Respondent since the
Union already held II membership cards, assumedly a
majority.
Two days after this meeting, on March 26, Respondent's
driver Arnold Clark was discharged by Respondent under
circumstances which will now be detailed.
Arnold Clark had joined the Union from the very start,
on March 10, in the presence of Respondent's principal's
son Kenneth Schilling. At the time of his discharge on
March 26 he was a "company driver" (i.e., direct
conventional employee) of Respondent. On the afternoon
of March 25, the day before his discharge and the day after
the drivers' described March 24 union meeting at which
they decided to attempt to avert a strike, Clark loaded out
of Letart for Washington, Pennsylvania (approximately 30
miles from Wheeling, West Virginia), whence he was due
back at around 8 a.m. the following morning (March 26),
the round trip being around 365 miles . No specific route
was specified. According to his account-which I believe
after closely observing his demeanor and comparing it with
that of witnesses on the other side-he took the usual route
with an overload as he and Respondent's other drivers
frequently carried, over the Pomeroy (Ohio River) Bridge
at or near Mason, West Virginia, a distance of about 1/4
mile, where he stopped off to chat on union organizational
matters with his fellow-drivers and union coprotagonists,
Devillo Hubbard (discharged on March 16, as shown) and
Harrison Robinson (discharged on March 28, 2 days after
Clark, as will be shown). While so chatting, Clark observed
that Respondent's principal 's son Kenneth Schilling, who
drove back and forth past them, espied them. Although
Clark's discussion with his colleagues lasted about an hour,
he nevertheless delivered his load at Washington at around
2 a.m. and arrived back at Letart Terminal by 5 or 5:30
a.m., or about 3 hours before his required return time. As
usual , after pulling in there he took a nap in his cab. At
around 8 a.m. he was awakened by Kenneth Schilling, who
told him he was wanted on the phone. On the telephone,
Kenneth's father Earl Schilling indicated that he had been
informed that Clark had gone south rather than north on
the trip to Washington, Pennsylvania, adding, "This thing
has gone far enough, and I'm going to have to put a stop to
it," and summarily fired him. Kenneth Schilling and Letart
Terminal Manager Wyatt were in the office during this
telephone conversation between Earl Schilling and Clark
there.
Clark, an impressively straightforward witness, insisted
at the trial that the route he had followed to Washington,
Pennsylvania, was the one suggested by Letart Terminal
Manager Wyatt himself and followed by Clark 50 percent
of the time , as well as by other drivers, to Respondent's
knowledge , this being the shortest and quickest way to go.
Conceding that he had carried an overload over the
Pomeroy Bridge, in technical violation of law, Clark
further insists that, in accordance with instructions of
Letart Terminal Manager Wyatt,21 he as well as other
drivers whom he identified by name (Wandling, Holley,
Woods, Robinson, Charles Clark, Cornell, Charles Wyatt,
would have to pay their own fines if apprehended, was posted merely to give
Respondent an out in the event a driver were "caught."
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Staats, and even Kenneth Schilling-none of whom was
produced to dispute this) regularly did and do so even now.
And Clark also credibly insisted that at no time during
Earl Schilling's March 26 discharge conversation with him
did Schilling in any way fault him for using the Pomeroy
Bridge.
Later that day (March 26), when Clark telephoned Earl
Schilling and asked him what he (Clark) was supposed to
put on his unemployment insurance form, Schilling replied,
"Just what happened, to which Clark responded, "Well, I
guess that's fired, then." Schilling did not disagree.
Earl and Kenneth Schilling , as well as Charles Wyatt,
testified on Respondent's behalf in relation to the forego-
ing. According to Kenneth Schilling, the 24-year-old son of
Respondent's principal Earl Schilling and a supervisor of
Respondent as will hereafter be shown, after Clark had
loaded out of "Graham Station" (i.e., Foote Minerals
plant, less than a mile from Letart terminal) on the
afternoon of March 25, he happened to notice the loaded
truck later that afternoon near Respondent's driver's
Robinson's home, but never saw it cross the Pomeroy
Bridge (over the Ohio River); however, since he assumed
from the direction in which the parked truck was facing (as
well as the width of the road, in his opinion precluding
effectual turnaround there 22) that it was going "downriver"
instead of the "usual" way he assumed Clark traveled to
Washington "as far as I [K. Schilling] know," he informed
his father Earl Schilling that Clark had gone "downriver"
instead of the or his "usual" way. He also reported to his
father that Clark had only used a single padding tarpaulin
on the truck.23 Kenneth Schilling , an evasive as well as
transparently Respondent-oriented witness, conceded on
cross-examination that he had never "checked" to ascer-
tain whether Clark or any other driver went over the
Pomeroy Bridge overloaded; and he soon also conceded
that he not only had no knowledge as to whether
Respondent's trucks had crossed that bridge overloaded,
but that he actually recalled such a possible overload.
Testifying on the same subject, Respondent's principal
Earl W. Schilling swore that he fired Clark because he was
told by his son, Kenneth Schilling, that Clark was going in
the opposite direction (i.e., north or "downriver") to the
direction (i.e., south or "upriver") he "should have" been
going . He conceded, however, that he did not specify any
routing to be taken by Clark; that he does not know
whether going north is shorter than going south to
Washington from Letart; and that the route followed by
Clark may actually be the shorter route. On cross-examina-
tion, Schilling was able to recall only one instance where he
had discharged an employee for going off route, in that
22 Notwithstanding this testimony, Kenneth Schilling elsewhere testified,
seemingly inconsistently, that he later saw the Clark truck " turned around"
near Robinson's home.
as Notwithstanding this testimony, Kenneth Schilling elsewhere testified
that he himself had assisted Clark in loading, when that (i.e., only one)
tarpaulin was put on the load. Clark swore , credibly, that at the time in
question he had one of two padding tarpaulins on the truck in accordance
with company practice.
24 I.e., a gross load of around 70,000 pounds ( the usual gross weight of
Foote Minerals loads out of Letart or "Graham Station"), the lawful limit
on the Pomeroy Bridge being 46 ,000 pounds . According to Earl Schilling, a
notice posted at Respondent 's premises for over a year has stated "No Co.
trucks on Pomeroy Mason Bridge over 46,000 gross ." Contrary to his son
case 300 miles off route; but conceded he did not and does
not know whether Clark went off route at all.
In response to a leading-type question, Earl Schilling
added that he also discharged Clark because he had carried
an overload over the Pomeroy Bridge .24 However, on cross-
examination Schilling conceded that at the time he discharged
Clark he was unaware that Clark had crossed the Pomeroy
Bridge, and that Clark only told him so after Schilling had
discharged him; and, further, that he only discharged
Clark for going "out of route." Schilling denied knowing
whether or not Letart Terminal Manager Charles Wyatt
had ever instructed a driver to cross the Pomeroy Bridge.
On the subject of Clark' s union activities , Earl Schilling
swore at the trial that at the time he discharged Clark he
was unaware that Clark had signed a union card.25
However, after he was shown his pretrial affidavit, he
conceded he had there sworn that he did indeed know that
Clark had signed a union card at the time he discharged
him.
Respondent's Letart Terminal Manager Charles Wyatt
also testified on Respondent's behalf regarding Arnold
Clark's discharge. It will be recalled that after his deficient
recollection was refreshed through his pretrial affidavit,
Wyatt conceded warning Clark around March 15 that "if
the union got in the company would have to close the
doors." As to the matter of crossing the Pomeroy Bridge
with an overload, although Wyatt recalled telling Clark at
some time or other (in Wyatt's words, "not quite sure"
when) not to cross the Pomeroy Bridge with an overload
and denied that he ever gave "instructions" to any
employee to cross that bridge, he modified this so as to
admit he "possibly" did tell drivers to cross that bridge to
refuel without knowing whether or not they were (over)
loaded; and he also did not deny that the drivers named
by Clark in Clark's testimony (supra) actually crossed the
Pomeroy Bridge with overloads, testifying that he (Wyatt)
simply does not know one way or the other whether
Respondent's drivers crossed that bridge with overloads 26
With regard to the route taken by Clark on the occasion in
question-as indicated above, the reason why Earl Schilling
fired Clark-Wyatt conceded that he would not consider it
objectionable for a driver27 to proceed from Letart terminal to
Washington, Pennsylvania, across the Pomeroy Bridge-i.e.,
`downriver. "
Balancing the versions presented in the light of compara-
tive testimonial demeanor as observed, within the frame of
reference of the record as a whole, I prefer and credit
Arnold Clark's version to the extent of conflict. I believe
and find that Arnold Clark as well as other company
drivers did in fact carry overloads across the Pomeroy
Kenneth and to other testimony which I credit , Earl Schilling denied
"know[mg ]" of any of Respondent's trucks carrying an overload over the
Pomeroy Bridge; or that he had given permission to do so . It is to be noted
that the foregoing notice is by its terms limited to "company trucks"; and
that Earl Schilling-a somewhat evasive witness-conceded a distinction
between "company trucks" and "broker trucks" on exclusive lease to the
Company.
25 But Schilling had earlier conceded that at the time he discharged
Clark he knew that Clark was involved in union activity.
26 Wyatt also explained that at the time he himself drove trucks over the
Pomeroy Bridge there was no load limit in effect.
27 I.e., with a permissible load.
FRALEY & SCHILLING, INC. 433
Bridge, to Respondent's knowledge and with its acquies-
cence, and that no driver was discharged or disciplined
therefor; that Respondent prescribed no route to be
followed by its drivers from Letart terminal (or "Graham
Station") to Washington, Pennsylvania; that the route
taken by Clark on the occasion in question, from Letart
terminal (or "Graham Station") to Washington, Pennsylva-
nia, had previously been taken on numerous occasions by
Clark as well as other of Respondent's drivers, without
objection and with the acquiescence or knowledge of
Respondent, and that said route was reasonable and
proper; that Clark was not discharged for stopping off to
talk to fellow employees as described, nor for any
impropriety in the use of tarpaulins as described; that Earl
Schilling's assigned reason for discharging Clark, namely
the route he followed to Washington, Pennsylvania, on the
occasion in question was not the true reason, but merely a
pretext, for his discharge; 28 and that the compelling and
true reason for Arnold Clark's discharge was his union
membership and union concerted protected activities.
d. March 28: discharge of Harrison Robinson
When Union President Hill was informed of Arnold
Clark's discharge on March 28, he contacted Respondent's
principal Kimber J. Fraley and set. up a meeting on March
30 to discuss the matter. Although Fraley denies "remem-
ber[ing]" any mention of Arnold Clark in that conversa-
tion, I credit Hill. Two days after Respondent's discharge
of Arnold Clark, and before the meeting set up for March
30 to discuss Clark's discharge, on March 28-the same
day as the Union filed with the Board's Regional Director
a petition for a secret-ballot election-Respondent also
discharged its driver Harrison Robinson.
It will be recalled that it was Harrison Robinson who
made the initial contact with the Union and brought it into
Respondent's terminal. He thereafter attended all union
organizational meetings, including the March 10 meeting
at which Respondent's principal's son Kenneth Schilling's
participation has been described. Robinson has worked for
Respondent as a truckdriver in one form or another since
March, 1969-4 years to the time of his termination on
March 28, 1973. He was originally hired by Respondent to
drive a company (i.e., Respondent-owned) truck. Continu-
ing Robinson in that capacity for a month, Respondent in
April 1969 sold Robinson a 1965 GMC truck with a
mileage of 312,000 miles on an arrangement whereby
Robinson was required simultaneously to execute an
exclusive leaseback of the truck to Respondent and to
make 256 weekly payments thereon to be deducted from
his weekly earnings from Respondent. When the truck was
fully paid off toward the end of 1972, the exclusive
leaseback arrangement was continued.29
On March 22, •when Robinson, on his way back from
28 1T ]he rule is well established that although ample valid grounds may
exist for the discharge of an employee . . . . the question is whether those
were in fact the only grounds for the dismissal, or whether they were'put
forth as a mere pretext to justify an impermissible discharge .' " N.L.R.B. v,
Pembeck Oil Corporation, 404 F .2d 105, 109-10 (C.A. 2, 1968). See also,
Santa Rita Mining Co. v. N.L.R. B., 84 LRRM 2300 (July 1973).
29 On March 28, 1973, the date of his termination , Robinson also owned
another truck , which was not leased to Respondent.
30 Such a hauling permit is issued to the particular truck . There was no
Detroit, called in to Letart terminal to inquire for a
truckload, Respondent's Terminal Manager Wyatt told
him to pick up a load at Maple Grove, Ohio, destined for
Cambridge, Ohio. Robinson reminded Wyatt that since he
(Robinson) had no Ohio license he could not lawfully
handle loading and unloading in Ohio-although
he had done so in the past-this being a purely intrastate
Ohio load. Wyatt asked Robinson to tell that to Earl
Schilling. When Robinson declined to do so, Wyatt said,
"You're fired." Notwithstanding the foregoing, on the next
day (March 23) Wyatt telephoned Robinson and told him
he had a load for him to Fort Wayne, Indiana, which
Robinson hauled there. When Robinson, in accordance
with usual practice, telephoned Wyatt from Fort Wayne,
Wyatt told him to return. Robinson did so, there receiving
at least one further load from Respondent to haul from
Letart terminal to West Virginia; and Robinson thereupon
completed that haul, as well as possibly others, for
Respondent.
Upon returning from a trip on March 28, Robinson was
informed by Wyatt that there was a load to take to
Bethlehem, Pennsylvania. Robinson reminded Wyatt that
he had no permit to haul to Pennsylvania.30 Wyatt
remarked that Kenneth Schilling would bring such a
permit to Robinson from Mingo Junction, Ohio (about 165
miles from Letart terminal). Robinson indicated he would
start loading and take the load when he received the
permit. According to Robinson, Wyatt thereupon stated
that he did not want to argue about it and directed
Robinson to remove his "Fraley & Schilling" decals from
his truck. When Robinson told him that "Mother Nature
[i.e., the weather elements] had [already] taken [the decals]
off," Wyatt told him he was "fired." Since then, Robinson
has received no further trucking assignment from Respon-
dent although, to his knowledge, his exclusive leaseback
hauling contract with Respondent has never been can-
celled.31
Wyatt denies any conversation with Robinson on March
28. Wyatt's testimony indicates that-contrary to Robin-
son-he gave Robinson no trips after Robinson's haul to
Fort Wayne, Indiana, on March 26.32 According to Wyatt,
after Robinson returned from the Fort Wayne (Indiana)
haul, Wyatt instructed Robinson on the morning of March
27 to load for Bethlehem, Pennsylvania. When Robinson
pointed out that he had no permit for Pennsylvania,
Wyatt-still according to his own testimony-informed
Robinson that such a permit would be furnished to
Robinson at Steubenville, Ohio -a distance of about 160
miles from Letart terminal-or "brought down"; but
Robinson declined to carry the load without a proper
permit. Wyatt thereupon told Robinson that "If you don't
want to haul what we've got to haul, you may as well take
the signs off"; and when (according to Wyatt) Robinson
such permit issued to Robinson's truck at the time.
31 Robinson testified that although it is industry practice that either
party to such a lease may terminate it at will, nevertheless, while in
existence, the leased truck remains under control of the lessee (i.e., Fraley &
Schilling).
32 In this aspect , upon comparative demeanor observations I resolve the
conflict in Robinson 's favor, particularly since Respondent could readily
have produced records to support Wyatt or to disprove Robinson's
testimony, but failed to do so or to offer any explanation for its failure.
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said he already had, Wyatt ended the conversation by
stating, "Therefore, you've quit." On cross-examination,
Wyatt conceded that "Take [y]our signs off" may be
regarded as the equivalent of telling a driver, "You're
fired." It is undisputed that Respondent has given
Robinson no work since the foregoing conversation on
March 27 or 28. Wyatt conceded that on the day when he
had this conversation with Robinson practically all of
Respondent's trucks, excepting Robinson's, had permits to
haul in Pennsylvania. Wyatt also claimed to be unable to
"remember"-but did not unequivocally deny-remarking
a week before Robinson's termination that Respondent
was going to "get rid of" Robinson.
Wyatt's testimony concerning Robinson does not appear
to be consistent with Respondent's answer, which states
(par. "9") that "Robinson voluntarily quit his employment"
after he was instructed to pick up a Pennsylvania permit
"at the Windmill Truck Stop near Wheelin& West Virginia"
(emphasis supplied). Nor does it appear to be consistent
with the testimony of Respondent's principal Kimber J.
Fraley, who swore that, contrary to Wyatt's testimony,
Wyatt had told him (Fraley) that he (Wyatt) had instructed
Robinson to pick up a Pennsylvania temporary permit (i.e.,
a telegram from Respondent, dated March 26, forwarding
a fee to Pennsylvania authorities with the request that a
permit be issued) at Windmill Junction, just a few miles
from Letart terminal. According to Wyatt himself, he told
Robinson that the permit would be furnished to him at
Steubenville, Ohio; but according to the testimony of
Kimber J. Fraley, Steubenville was not en route from
Letart terminal to the Bethlehem, Pennsylvania, destina-
tion of the load which Wyatt attempted to assign to
Robinson. Robinson flatly denies that he was ever told that
a permit for the Pennsylvania trip in question could be
picked up by him at nearby Windmill Junction (West
Virginia). I credit Robinson.
In the terminal posture of the record, on comparative
demeanor observations I prefer and credit the testimony of
Robinson to the extent of any material discrepancy.
Furthermore, Robinson's testimony that as an "owner-
driver" he on occasion declined trip hauls (indeed, as
recently as March 14, in addition to his March 22
declination of the load in Ohio, where he also was
unlicensed) is undisputed.33 Coupled with Wyatt 's admis-
sion that practically all of the other trucks in Respondent's
service were licensed for Pennsylvania, and considering
Respondent's hereinabove and hereinbelow described
instances of established union animus, it taxes my credulity
that Robinson's not taking on the particular haul in
question under the circumstances described (including his
not in fact being lawfully licensed to do so) was the real
reason for the summary termination, on the heels of the
33 General Counsel's impressively credible witness Keith M. Woods,
another "owner-driver," corroborated without contradiction that Respon-
dent's "owner-drivers" enjoyed considerable freedom of action and, unlike
the "company drivers," could "just about " select and decline the loads and
trips they desired . (Of course , also unlike the "company drivers," they do
not punch a timeclock and are not compensated on a time basis.)
7' See N. L. R. B. v. Pembeck Oil Corporation, quoted supra, fn. 28.
35 1 also find, particularly in view of Wyatt's concession that directing a
union membership and activity, of this driver with an
unblemished record of 4 years of driving performance.34 I
find, rather, that the assigned reason was pretextuous,35
and that the real reason in at least controllingly motivating
part was his known union membership and activity.36
3. More alleged interference , restraint, and
coercion
On March 28 , the Union filed with the Board's Regional
Director a petition requesting a secret ballot election to
determine Respondent 's employees' collective-bargaining
representation desires (Case 9-RC-10063 ). As has been
shown, on the same day Respondent discharged Harrison
Robinson.
On the same day (March 28), while Respondent 's owner-
driver Charles Clark was awaiting a load for Philadelphia,
at Respondent's Mingo Junction terminal , he was upbraid-
ed by Respondent's principal Earl Schilling, "[You] was
wrong in joining the Union on [me ]," which Clark denied.
When Schilling thereupon said he could offer a substantial
raise to "broker" owners, Clark asked him about the other
drivers, including those fired . Schilling replied, "No." The
incident, as described by Charles Clark, is undisputed by
Schilling . The complaint (Case 9-CA-7676-1, 2, par.
5(b)(iii)), however, alleges, apparently in regard to the
foregoing episode, that it constituted an offer to an
employee of a wage increase for abandoning his union
sympathies . The meager episode described, while credited,
seems at worst indicative of union animus on Respondent's
part as well as resentment at Clark 's having exercised his
lawful rights protected under the Act. Since I do not
construe it as constituting an offer to an employee of a
wage increase for abandoning his union sympathies, as
alleged in the complaint , I find this allegation not
established by substantial evidence.
4. The strike
The complaint (Case 9-CA-7676-1, 2, pars. 10[a] and
[b]) further alleges that Respondent's drivers on April 2,
1973, went and have since been out on a strike caused
and/or prolonged by Respondent's unfair labor practices.
Respondent's unfair labor practices antedating April 2
have been described; those subsequent to April 2 are
described hereafter.
With regard to Respondent's unfair labor practices and
attendant events prior to April 2, it will be recalled, for
example , that Respondent's acts of interference, restraint,
and coercion in violation of the Act included interrogation,
surveillance, economic promises, threats, and discharges of
employees who to Respondent's knowledge led or were
active in union organizational matters. Thus, Devillo
Hubbard was discharged on March 16 for union activities.
It will also be recalled that when Respondent's drivers met
driver to remove his Company decal is equivalent to discharging him, that
Robinson did not "quit" but was in fact discharged. See fn . 15, supra.
36 Known to Respondent at least since Letart Terminal Manager
Wyatt's undisputed interrogation of Robinson on March I and confirmed
through Kenneth SchiUing's described participation at the drivers' March 10
union organizational meeting concerning which Kenneth Schilling reported
to his father, Earl Schilling , as shown above.
FRALEY & SCHILLING, INC.
on March 24 and, after reviewing Respondent's numerous
antiunion activities and pressures , voiced great uneasiness
over "who's going to be next," they nevertheless, on Union
President Hill's urging, decided not to go out on strike
"except as a last resort," but instead to file charges with the
Board and to have Hill meet with Respondent since the
Union already apparently held union cards from a
majority of the drivers. On the heels of this meeting,
however, Respondent on March 26 discharged another
driver-Arnold Clark-for union activity.
On March 28, Union President Hill contacted Respon-
dent's principal Kimber J. Fraley and set up a meeting for
March 30 to discuss these matters . Also on March 28 the
Union filed a petition with the Board for a secret ballot
representation election. On the same day (March 28),
Respondent discharged its driver Harrison Robinson (who
had brought the Union in), under circumstances which
have already been described.
When Union President Hill kept his appointment with
Respondent on March 30 at Mingo Junction terminal,
Respondent's principal Kimber J. Fraley (who was there
with Earl Schilling and Mrs. Schilling) refused to talk to
Hill in the presence of Devillo Hubbard and the drivers'
committeeman Charles Clark, who were with Hill. When
Fraley remained adamant in this attitude even though Hill
pointed out that a rule of his union required an employees'
elected representative to be present, the meeting aborted.
However, at the insistence of the two employees, Union
President Hill later returned alone and conferred with
Fraley and Earl and Mrs. Schilling. Although the matter of
Respondent's rapid-fire discharges of the four aforemen-
tioned employees was discussed, nothing came of the
discussion since Respondent refused to take any of them
back. During this discussion, Schilling mentioned that
Respondent had about 18 drivers. When Hill offered to
display 11 signed cards, Fraley for the first time tossed in
that "We have way more ... 32 or more," but Schilling
said he did not agree. Hill thereupon again offered to
display the 11 signed cards. Fraley's response this time
was, "We know who signed the cards. We don't have to see
the signatures on the cards," with which Schilling agreed 37
Fraley then added, "I'm a farmer and I don't believe in
Unions and if them men want to work here, they can work
here. If they don't want to work here, they can quit, and if
they have any problems with this company, they should
come as individuals to me, individually, and we can maybe
work out their problems. If they don't like conditions here,
why don't they go someplace else? . . . We'll never have a
Union here. We'll close the company down before we have
a Union here." Hill's warning to Respondent that the
drivers would go out on strike, and that this would be an
unfair labor practices strike in view of the discharges of the
employees, met with no response from Respondent, so Hill
left.
At a union meeting of Respondent's drivers, held in
Devillo Hubbard's home on April 2, the existing situation
was reviewed. After a discussion, the drivers voted to go
37 On cross-examination , Earl Schilling conceded hearing Fraley utter
the indicated remark to Hill in response to Hill's offer to exhibit the signed
union cards in his possession in connection with the Union's request for
recognition at the meeting of March 30.
435
out on strike in protest against Respondent 's described
actions . Accordingly, the drivers commenced their strike
later that day (April 2), with picketing across the street
from Respondent's Letart terminal . The picket signs
expressly declared that the drivers were "On Strike Against
Fraley and Schilling Company Because of Unfair Labor
Practices ." Although Union President Hill concurrently
informed Respondent that he was and would be available
locally to discuss the matter and that the strike would be
called off as soon as the discharged employees were
rehired , Respondent has at no time communicated with
him, nor has any of the discharged employees been
returned to Respondent's employ.
On April 4, the Union filed the supplemental unfair
labor practices charges (Case 9-CA-7676-2) resulting in
the complaint (Case 9-CA-7676-1 and 2) issued by the
Board's Regional Director for Region 9 on May 17, 1973.
Upon the entire record , it is overwhelmingly clear and I
find that, as alleged in the complaint , the strike of
Respondent's drivers which commenced on April 2, 1973,
was in its inception , has at all times continued to be, and is,
an unfair labor practices strike caused and prolonged by
Respondent's unfair labor practices described and found
herein.
5. Further economic threats
On April 23 , 1973, the Union filed further charges,
resulting in the issuance of an additional complaint (Case
9-CA-7723-1) on June 26, 1973, by the Board's Regional
Director, against Respondent . In substance, this new
complaint alleges that on or about April 19, 1973,
Respondent's principal Kimber J. Fraley at its Letart
terminal , in further violation of Section 8(a)(1) of the Act,
threatened an employee with economic reprisal in case of
selection of the Union as the employees' collective-bar-
gaining representative , and also threatened employees with
discharge if they remained away from work and did not
terminate their strike and picketing.
It will be recalled that on March 28 , 1973, the Union had
filed a petition with the Board requesting a secret ballot
representation election (Case 9-RC-10063). The filing of
that petition was preceded , attended, and followed by
various acts of interference, restraint, and coercion on the
part of Respondent , including the unlawful discharge of a
number of employees , precipitating the described unfair
labor practices strike by Respondent 's drivers commencing
on April 2, 1973,and the filing of supplemental charges
(Case 9-CA-7676-2 ) by the Union on April 4, 1973.
On April 19 , 1973, the Union,executed a stipulation for
certification upon consent election, to be held under Board
auspices on May 10 , 1973, by mail.38
On the same date that the Union set in further motion its
Board election petition , by executing the foregoing formal
proposed stipulation for certification upon consent elec-
tion-i.e., on April 19-the events about to be described39
occurred, giving rise to the filing of new charges by the
38 This stipulation was executed by Respondent (through Earl Schilling)
on April 21 and approved by the Board 's Regional Director on April 26,
1973.
39 The account which follows , constituting my findings, is based upon
(Continued)
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union and the issuance of a second complaint (Case
9-CA-7723-1) by the Regional Director.
Charles ("Chick") Clark (hereinafter referred to as
"Clark"), who entered Respondent 's employ as a "compa-
ny driver" around June 1972 , purchased a 1968 Ford
tractor-trailer from Respondent in October 1972. At that
time the vehicle had a mileage of around 300,000 miles.
The "purchase" arrangement was that Clark would make
118 payments of $100 per week to Respondent while
obligated to haul exclusively for Respondent on a
leaseback basis under which Clark would receive or be
credited with a gross of 20 percent of the truck 's gross
income on "flat loads" (i.e., loads boxed on skids removed
at destination) and 22 percent on "dump loads" (i.e., alloy,
dumped out at destination). Clark thereby became an
"owner-operator" or "owner-driver" of Respondent. Ac-
cording to Clark , although his arrangement permitted him
to return home with loads of others than Respondent if
authorized by Respondent (in order to avoid revenueless
return trips empty or "deadhead "), Respondent has never
yet paid him for such return trips even though Respondent
has collected for them from the consignor or consignee
(since Respondent's identification decal is on the truck
leased back to Respondent by Clark). Clark was among the
drivers who joined the Union at the very first meeting
(described supra) at Marietta, Ohio , on March 10,
1973-the one participated in by Respondent 's supervisor
Kenneth Schilling, son of its principal Earl Schilling-after
having attended the meeting of Respondent 's drivers called
by Respondent earlier that day (also described supra). At
that earlier Respondent-called meeting, Clark had openly
interceded on behalf of the company drivers , urging
Respondent 's principal Fraley to settle with them to avoid
their seeking help from the Union , but to no avail. At the
subsequent union organizational meeting (March 10),
Clark was elected by the drivers as a union committeeman.
It will be recalled that on March 28 Clark was upbraided
for going to the Union by Earl Schilling , who in effect
accused Clark of having gone sour on him. And it will also
be recalled that it was Clark (with Devillo Hubbard) who
accompanied Union President Hill to the prestrike confer-
ence of March 30 with Fraley and the Schillings, when
Fraley refused to talk to Hill if Clark and Hubbard
remained there.
On April 19 , Clark's truck was parked in the premises of
his father (who is also called Charles Clark). There, Clark's
brother, Arnold Clark, observed Respondent 's principal
Kimber J. Fraley sitting in Clark's tractor -trailer, attempt-
ing to start it up and remove it. Thereupon Clark's father
telephoned Clark and alerted him to what was going on.
Clark immediately went to his father's home, where Fraley
told him he was removing the truck unless Clark paid him
$70 per month "insurance" on it if it was not stored in
Respondent 's premises . Clark reminded Fraley that he
(Clark) had just paid a $528 annual insurance premium on
mutually corroborative , credited testimony of General Counsel witnesses
Charles Clark, Arnold Clark , and William J. Hill, each an impressive
witness.
40 Fraley said nothing about Foote Minerals closing or planning to close
or cut back one of its plants (cf. supra). There is neither proof, indication,
nor claim that any such layoff was planned or effected.
4i No records were produced by Respondent to establish that no such
the truck, covering collision or property damage to the
truck. Although Clark offered also to pay any liability
insurance premium which might be due, Fraley refused to
allow Clark to use the truck elsewhere even if Clark paid
the liability insurance. Clark was on strike, striking against
Respondent's unfair labor practices as described and
found hereinabove, at the time. (It will be recalled that
Clark's truck was on exclusive leaseback to Respondent
under the arrangement described supra.) Unable to reach
his attorney, Clark telephoned Union President Hill at
Pittsburgh and explained the situation to him. Hill advised
Clark not to permit the truck to be removed without a
court order. Hill then spoke on the telephone to Fraley,
who insisted that he had the right to and would take
Clark's truck away then and there, since "these fellows
have no right to strike," and he would repossess all trucks
if the Union won the election. In the course of this
conversation, Fraley also told Hill that he (Fraley) was
going to charge all drivers who were on strike and not
parking their trucks in Respondent's terminal-which they
did not uniformly do, since they would park them at their
homes at least at times-for "insurance" because he
considered himself to be "liable," without indicating for
what he was "liable" or his basis for allegedly thinking so;
but Fraley was silent on the subject of any similar charges
against nonstriking employees. Fraley also insisted that
Respondent's employees had no right to strike since "It's
against the Bible to strike . . . . It's against the Bible for
workers to ask their boss to pay them any more than their
boss wants to pay them"; and that "[I am] a Bible man, [I]
believe[d ] in the Bible, and if a man wanted a raise,
whatever he started out for is what he should get and if he
ever wanted a raise, he should go someplace else and get it
and . . . . [I don't] believe in no Unions. [I] was never in
any Union in [my] life and [I] never did believe in it.. .
if the Union went in . . . [I ] would lay off five or six more
trucks"-adding that he would probably do so anyway.40
Hill advised Fraley not to remove Clark's truck without a
court order. When Clark brought up the subject of paying
him (Clark) moneys due on return hauls (supra), Fraley
denied having received any such payments from Associat-
ed Transport (apparently the central clearing house for
payments) 41 When Clark refused to allow Fraley to
remove Clark's truck, Fraley left, insisting that Clark could
not use the truck except for Respondent and vowing that
he would repossess Clark's truck as well as that of Woods
(another striking driver). The next day, a local sheriff came
to seize Clark's truck, but left without doing so when Clark
displayed his title documents. Two weeks later, however,
the sheriff seized and removed the truck and trailer,
without Clark having had or since then having any trial or
opportunity to be heard in any legal proceeding to
establish any lawful indebtedness, default, delinquency, or
right to seize summarily.
Also at the same time (April 19), a similar episode
payments had ever been received, nor to establish that Respondent was
current in any indebtednesses to Clark relating to revenues on permissible
return hauls by Clark not ascribable to Respondent -generated business. Nor
was Respondent 's failure to produce such records explained . On brief (last
two pages), Respondent appears to acknowledge withholding these for
"debts employees owe to the company."
FRALEY & SCHILLING, INC.
occurred between Fraley and Respondent's driver Keith
M. Woods, another unfair labor practices striker. After
originally entering Respondent's employ in 1967 as a
"company driver," Respondent sold one of its 5-year-old
trucks with a mileage of 362,000 miles42 to Woods, who,
like Clark, thereby became an "owner-driver" or "owner-
operator." Woods agreed to pay some $10,000 or $11,000
(with $1,000 down) plus 8 percent interest, with weekly
payments to be deducted from his " wages" and the truck
to be devoted to hauling exclusively for Respondent.
Woods agreed to pay all repair, maintenance, licenses,
taxes , and insurance costs. Woods also at times pulled a
Fraley & Schilling trailer , under his agreement with
Respondent and at its request, his own trailer being
interchangeable for that purpose. On April 2, 1973, Woods
joined in the unfair labor practices strike. At that time his
truck was parked in his front yard, where he had been
regularly storing it, to the knowledge of and without
objection by Respondent. Woods' weekly payments to
Respondent on the truck had started at $100, reducing to
$77.12 by April 2, 1973, at which time the balance of his
indebtedness was around $4600, consisting of only about
$500 on the truck itself but $4100 for tires, batteries,
repairs, and maintenance furnished and charged him by
Respondent.
On the evening of April 19, while thus on strike, Kimber
J. Fraley telephoned Woods and directed him to move his
tractor-trailer to Respondent's terminal because of or "for
insurance ." Woods explained to him that it was stationary
and not in use . Fraley told Woods that if the Union won
the upcoming election, he (Fraley) would expect Woods to
pay Respondent the full balance due on his truck. Fraley
made no claim that Woods was in default in payments on
the truck, but confined himself to " insurance." (Woods
explained that he did not consider himself in default, since
he was required to make payments only out of income
from hauls for Respondent; at no time did Fraley indicate
he considered Woods to be in default.) Fraley insisted that
Woods deliver the truck to Respondent's premises by the
following morning. Thereupon, Woods contacted Union
President Hill and apprised him of these facts. Hill, who
had already been called by Clark (supra), also advised
Woods not to relinquish the truck without court order and
to consult an attorney. The truck was subsequently
repossessed by Respondent 43
Concerning these matters, Respondent's principal Kim-
ber J. Fraley testified that with regard to Woods, he
(Fraley) prepared and offered Woods a handwritten
"agreement" that if Woods removed his tractor-trailer to
Respondent's Letart terminal premises , Respondent would
waive certain payments thereon only until May 25, 1973 -
i.e., the date set by the Board's Regional Director for the tally
of the election ballots-with all payments to recommence I
week thereafter; but that if Woods "at this time fails to put
the Truck to Work for Fraley & Schilling, Then Fraley &
Schilling shall declare the Tractor & Trailer Repossessed
and take proceedings to collect any and all moneys due
them." (Resp. Exh. 6, dated April 20, 1973; not signed.) It
42 According to testimony, such trucks are apparently regarded to have a
mileage expectancy of a million or more miles.
43 Woods is of the impression that the repossession was by (local) court
437
is clear that this handwritten proposed agreement prepared
by Fraley would have required Woods to end his strike
activity on pain of losing his truck or of making all
required payments thereon without having the use thereof
or income therefrom.
According to Fraley, Respondent pays the full liability
insurance premium on all trucks owned or leased by it; and
there would be no such insurance requirement or premium
on a truck dead-stored (i.e., parked without moving), even
elsewhere than on Respondent's premises. With regard to
"owner-drivers," collision coverage (i.e., property damage
to the truck itself) is required to be carried and paid for by
the "owner-drivers," and to be placed through Fraley's
wife. Further according to Fraley, before the "owner-
driver" had paid in full for his truck, the plates are in the
name of Fraley & Schilling although the plates are paid for
by the "owner-driver"; and when the "owner-driver" has
fully paid for his truck he then enters into an exclusive
lease arrangement with Respondent under which Respon-
dent continues to have exclusive control over the truck of
the "owner-driver."
Fraley concedes that he also sought the return of Clark's
tractor-trailer under similar circumstances, and admits a
telephone conversation with Union President Hill on that
occasion along the lines described above. According to
Fraley, however, on the occasion in question he did not
indicate that a dissatisfied employee should quit but said
that "It (is] my religious conviction that I didn't think a
man should break his agreement; that if a man wasn't
satisfied with his job he should quit." Expanding on this,
Fraley explained that it is against his religion to recognize a
union because the union uses "harassment and force and
being unkind and doing other such things to their
employer; we have a perfect example of that right
here. . . . Now one of the first commandments is to do
unto others as you've had others do unto you and there's
no place that it says you are supposed to or allow it as a
Christian to force people to do something that is harmful
to them or that might be harmful to them in any way,
shape or form. You're supposed to do unto others as you
would have others do unto you.... I think it is
considered the Golden Rule. My understanding and what I
know about union activities, they do not follow that
practice." While denying that he said that "workers should
not ask their boss for any more than a boss wants to give,"
Fraley acknowleged that "I said that if a man is working
for an employer and he is not satisfied with his job and
after going to his employer, if he can't work out a
reasonable settlement between them and he can be wrong,
the Bible then says to take somebody else with him. If you
can't work out a compromise between you, then disassoci-
ate yourself from that person. . . . He could use some
help. But if he's not satisfied-but then instead of trying to
harm his employer or use force to get what he wants, in my
understanding of what's right and wrong, he should step
aside and seek employment elsewhere or get into another
line of work where he can get into something that does
order. Subsequently, Woods apparently reclaimed the truck by paying off
the moneys allegedly due thereon.
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
make him satisfied." It need hardly be said that belief in
the Bible is not a defense to violation of the Act.
Finally, Fraley conceded on cross-examination that
although Respondent's "owner-drivers" Blankenship and
Holley also purchased trucks from and are still indebted to
Respondent thereon, they were not asked to park their
trucks in Respondent's terminal nor to return the trucks,
because they were not on strike.
Comparing the testimonial demeanor of the three
General Counsel witnesses who testified, consistently and
corroboratedly, with that of Fraley, I have no hesitation in
preferring the testimony of General Counsel witnesses to
the extent of any material discrepancy with that of Fraley,
whose testimonial performance, as I have already had
occasion to point out, impressed me less than favorably.
Within the context of the record as a whole, including the
numerous other established instances of antiunion activi-
ties and Fraley's acknowledged intellectual and religious
convictions on the subject of unions and regarding an
employee who does not meekly leave his job if he cannot
individually obtain betterment from his employer, I find
that the described allegations of the complaint have been
established by substantial credible evidence and that
Respondent's described threats and actions against its
"owner-drivers" Charles Clark and Keith M. Woods were
motivated in controlling part to punish them for engaging
in protected concerted union activities.44
Not only do the described actions by Respondent
constitute interference , restraint , and coercion of its
employees in violation of Section 8(axl) as found , but, in
view of findings hereinabove made that the strike of
Respondent's employees commencing on April 2, 1973,
was and has remained an unfair labor practices strike, and
that Respondent 's unfair labor practices continued, it
follows , and I therefore further find, that Respondent's
described April 19 economic threats to its employees
threatening them with economic reprisal and discharge if
they did not abandon said strike and return to work were
in further violation of Section 8(a)(1) of the Act. Since
unfair labor practice strikers may not be discharged (or
permanently replaced) (Mastro Plastics Corp. v. N.L.R.B.,
350 U.S. 270), employer threat to do that which he cannot
lawfully do under the Act constitutes independent viola-
tion of Section 8(axl). Rice Lake Creamery Company, 131
NLRB 1270, 1301, enfd . 302 F.2d 908 (C.A.D.C.), cert.
denied 371 U.S . 827; Reed & Prince Manufacturing
Company, 96 NLRB 850, 860, enfd . 205 F.2d 131 (C.A. 1),
cert. denied 346 U.S. 887.
6. Recapitulation of findings as to alleged unfair
labor practices
The following recapitulates findings herein made con-
cerning alleged unfair labor practices:
Case No.
Complaint
Paragraph Description 45/ Section Finding
9-CA-7676-1, -2 5(a) (i) I 8(a)(1) Found
It 5(a) (ii) I,01 it Not found
it
ti
5(a) (iii)
5 (a) (iv)
ET
ET,0I tt
11
Found
Found
/t
it
5(b) (i)
5(b) (ii)
5(b) (iii)
I
Er
EP
t
u
Not found
Not found
Not found
I 5(c) S to Found
II 5(d) WI it Found
tt 6 DE(Hubbard) I &(3) Found
t. 7 DE(Davis) tt of Not found
t 8 DE(Arnold Clark) n of Found
N 9 DE(Robinson) n n Found
10(a)&(b) ULPS M Found
9-CA-7723-1 5(a) ET 8(a) (1) Found
n 5(b) Er I Found
Ill. 1Hh REPRESENTATION CASE
A. Introductory
As has been indicated, representation Case 9-RC-10063
44 Cf. L J. Williams Lumber Company, 93 NLRB 1672, 1676, and 96
NLRB 635, enfd . 195 F.2d 669, 672-73 (C.A. 4), cert. denied 344 U.S. 834;
Kohler Co., 128 NLRB 1062, 1092 , remanded 300 F .2d 699 and affd. 345
F.2d 748 (C.A.D.C ), cert denied 382 U.S 836.
Chas been consolidated for hearing with the consolidated
complaint cases hereinabove considered. The referred
issues in the representation case involve 19 challenged
,,ballots cast in the Board-conducted election of May 10-24,
1973 (by mail). In that election, of 31 ballots cast, 7 were
45 Code 1 : interrogation ; S: surveillance ; ET: economic or other threat;
EP: economic promise; WI: wage increase ; DE: discharge of employee; 01:
other interference, restraint , or coercion ; ULPS: unfair labor practices
strike.
FRALEY & SCHILLING, INC.
for and 5 against representation by the Union, with the
remaining 19 challenged (16 by Petitioner Union46 and 3
by the Employer47). Since the challenged ballots-indeed,
as few as two of them-could be sufficient to determine the
outcome of the election, the challenges require determina-
tion.
B. General
The agreed appropriate bargaining unit, as stipulated by
the parties and approved by the Board through its
Regional Director is:
All truck drivers, truck owner-operators and mechanics
employed at the Employer's Letart, W. Va., and Mingo
Junction, Ohio terminals excluding all part-time em-
ployees, casual employees, dispatchers, office clerical
employees, professional employees, guards, and super-
visors as defined in the Act.
The agreed and approved payroll period for eligibility is
April 20, 1973.
C. The Challenges
1. Discharged employees (Arnold Clark, Harrison
Robinson, and William Davis)
Of the 19 challenged ballots, 3 are challenged by the
Employer (Respondent in the unfair labor practices
complaint cases). These are the ballots cast by Arnold
Clark, Harrison Robinson, and William Davis, three of the
four employees alleged to have been discharged by the
Employer in violation of the Act. 48 It is established that
employees discharged by an employer in violation of the
Act, within the context of the election situation and related
time frame involved, have the right to vote in a representa-
tion election . See, e.g., Washington Aluminum Co., Inc., 126
NLRB 1410, 1411, affd. 370 U.S. 9 (1962). In view of the
determination herein that two of the three ballots chal-
lenged by the Employer (i.e., those of Arnold Clark and
Harrison Robinson) were cast by bargaining unit members
unlawfully ousted from employment (and thus from the
bargaining unit) by the Employer, it is clear that the
challenges to those ballots should be and they are hereby
overruled, and the ballots should be opened and counted.
Inasmuch as the third ballot challenged by the Employer
was cast by driver William Davis, as to whose alleged
unlawful discharge there was a failure of proof, the
Employer's challenge thereto should be and it is hereby
sustained , and his ballot should be rejected and destroyed
unopened.
46 l.e., Bloom , Lincoln Fraley, Mitchell Holley, Mitchell Holley, Jr.,
Kirkpatrick , McClure, Perkins, Ross, Scharfenberg , Kenneth Schilling,
Robert Schilling , Schmitt, Shubert , Stout, Wandling, and Clifford R . Wyatt.
47 l.e., Arnold Clark , Davis, and Robinson.
48 The Employer does not challenge the ballot , if any, cast by the fourth
allegedly unlawfully discharged employee , Devillo Hubbard, who served as
union observer-tallier at the election.
49 See Act , Sec. 2(3); Foam Rubber City #2 of Florida, Inc., 167 NLRB
623; Marriello Fabrics, Inc., 149 NLRB 333, 345; Bridgeton Transit, 123
NLRB 1196 , 1197; The Colonial Craft, Inc., 118 NLRB 913, 914;
International Metal Products Company, 107 NLRB 65 ; F. A. Mueller and
Sons, Inc., 105 NLRB 552. But cf. N . L.R.B. v . Caravelle Wood Products, Inc.,
466 F .2d 675 (C.A. 7, 1972); Cherrin Corporation v. N.LR.B., 349 F.2d 1001
(C.A. 6, 1965), cert. denied 382 U.S . 981 (1966); Pargas of Crescent City, 194
NLRB 616.
2. Alleged supervisor (Kenneth E. Schilling)
439
The ballot of Kenneth Schilling is challenged by
Petitioner (Union) upon various grounds, including his
supervisory status within the meaning of the Act.
It will be recalled that Kenneth Schilling, the son of
Respondent-Employer's principal Earl Schilling, is the
individual who on Respondent's behalf engaged in the
surveillance of its drivers' March 10 union organizational
meeting, attempting there without success to dissuade them
from joining the Union and acting collectively, and
thereafter reporting to Respondent concerning the meet-
ing. It will further be recalled that Kenneth Schilling is the
individual who espied the movements of driver Arnold
Clark's truck on March 26 and reported thereon to his
father, Earl Schilling, resulting in Arnold Clark's summary
discharge.
Kenneth Schilling is thus not only the son of a 50-
percent principal of Respondent-Employer (a closely held
corporation), which alone could justify upholding petition-
er's challenge to his insistence on membership in the
bargaining unit49 and to his balloting in the election, but is
also so closely allied to management as for that additional
reason to warrant challenge.50
There is additional reason to uphold petitioner's chal-
lenge to the ballot of Kenneth Schilling. This is, that he is a
supervisor of Respondent-Employer within the Act's
definition.
The parties' stipulated appropriate bargaining unit
excludes "supervisors as defined in the Act." The Act's
definition (Sec. 2111 ]) of supervisor is:
The term "supervisor" means any individual having
authority, in the interest of the employer, to hire,
transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees, or
responsibly to direct them, or to adjust their grievances,
or effectively to recommend such action, if in connec-
tion with the foregoing the exercise of such authority is
not of a merely routine or clerical nature, but requires
the use of independent judgment.
The quoted statutory language is phrased in the disjunc-
tive, and it is accordingly established that possession of any
of the enumerated powers marks the possessor a supervi-
sor,51 rather than his job title or classification.52 Under the
statute, the touchstone factor determinative of whether an
individual is a supervisor is his actual power or effective
recommendatory power over other employees,53 even
50 Cf., e.g., CF & I Steel Corporation, 196 NLRB 470; The B. F. Goodrich
Company, 115 NLRB 722; Minneapolis-Moline Company, 85 NLRB 597;
Palace Laundry Dry Cleaning Corporation, 75 NLRB 320, 323, fn. 4;
Continental Can Company, Inc., 74 NLRB 351, 354; Ford Motor Company, 66
NLRB 1317, 1322.
51 N.LR.B. Twenty-fifth Annual Report (1960), p. 45; N.L.R.B. v. Eliott-
Williams Co., 345 F.2d 460,463 (C.A. 7, 1965); N.LR.B. v. City Yellow Cab
Company, 344 F.2d 575, 580 (C.A. 6, 1965); N.L.R.B. v. Southern Bleachery
& Print Works, Inc., 257 F.2d 235, 239 (C.A . 4, 1958), cert. denied 359 U.S.
911 (1959).
52 See, e.g., N.L.R.B. v. Quincy Steel Casting Co., Inc., 200 F.2d 293, 296
(C.A. 1).
53 Square Binding and Ruling Co., Inc., 146 NLRB 206, 210 , and cases
there cited.
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
though much or most of his time is spent in routine
production or maintenance work.54
Kenneth Schilling, a young adult of 24, is primarily in
charge of mechanical service maintenance and mechanics
at Respondent-Employer's Letart terminal, where he also
replaces Terminal Manager Charles Wyatt during the
latter's vacations or other absences (according to Wyatt as
long as a week at a time); and he also occasionally drives a
truck when-in his words-"my own" driver is away. He
normally works 6 or 7 days and at least 50 hours per week
at Letart terminal, where-unlike the two other employees
(Clifford Wyatt and Shelby Pickens) engaged in mechani-
cal maintenance , who are paid by the hour-Kenneth
Schilling receives a fixed daily salary (except when he
drives a truck, as he sometimes does), regardless of the
number of hours he works and regardless of when he
punches in or out; Kenneth Schilling's fixed daily salary is
around $30, whereas the two aforementioned mechanics
receive about $3 per hour. According to Kenneth Schill-
ing's own testimony, it is he who decides upon and assigns
the mechanics their work, and they follow his orders; and,
when he takes the place of Terminal Manager Wyatt, he
does the "same thing" as Wyatt does. Although Earl
Schilling (a generally less than satisfactory witness, as
already indicated) testified that his son Kenneth also to a
degree substitutes for him (Earl Schilling) in his absence
and that Kenneth Schilling gives him reports and evalua-
tions of the work of other mechanics, I do not credit his
(i.e., Earl Schilling's) further assertion-belied by his other
testimony-that he would attach no weight to a recom-
mendation from his son Kenneth about discharging an
employee. Two drivers (Arnold Clark and Devillo Hub-
bard) also confirmed that Kenneth Schilling is over the
mechanics in the Letart terminal shop and gives them
orders which they obey; that when Letart Terminal
Manager Wyatt is not present, it is Kenneth Schilling who
takes his place, giving orders to the drivers (including the
"owner-operators") and others, which they obey; and that
the same is true with respect to Kenneth Schilling at Mingo
Junction when the latter's father (Earl Schilling) is not
there. The testimony of one of these witnesses (Arnold
Clark) that Kenneth Schilling informed him that he had
hired company driver William Davis, is uncontradicted. If
necessary, further light is shed on Kenneth Schilling's lack
of community of interest with Respondent-Employer's
rank-and-file employees by the fact that when the latter
caucused during the March 10 meeting of employees called
by Respondent-Employer (described supra,• prior to their
union organizational meeting later that day), for a private
discussion among themselves to formulate their demands,
they did so without Kenneth Schilling.
Upon the record as a whole, I find Kenneth Schilling not
to be a member of the bargaining unit, because of his
supervisory status, his family relationship to Respondent-
Employer's principal (Earl Schilling, his father), his
confidential relationship to Respondent-Employer, and his
absence of community of interest with the rank-and-file
employees. For these reasons , Petitioner's challenge to the
54 N.L. R.B. v Browne & Sharpe Mfg. Co, 169 F.2d 331 (C.A. 1).
SE See , generally, Packard Motor Car Co. v. N.L,R.B, 330 U.S. 485,491;
N. L.R.B v. Pepsi-Cola Bottling Company of Mansfiel4 Ohio, 455 F .2d 1134
ballot he cast in the election should be sustained, and his
unopened ballot should be destroyed.
3. Lincoln Fraley and his Rushville, Indiana,
trucking company drivers (Lincoln Fraley, Dale
Stout, Terry McClure, Michael Shubert, and
William O. Kirkpatrick)
Petitioner has also challenged the right of Lincoln
Fraley, son of Respondent-Employer's principal Kimber J.
Fraley and owner of a trucking company located in
Rushville, Indiana, and the four drivers of Lincoln Fraley
(Stout, McClure, Shubert, and Kirkpatrick), to vote in the
election here in issue.
At the outset it should be noted that the stipulated
appropriate bargaining unit here includes the aforede-
scribed "owner-operators" or "owner-drivers" as well as
Respondent-Employer's "company drivers." This is con-
sistent with the Board's acceptance of "owner-operators"
or "owner-drivers" as appropriate for inclusion in such
bargaining units where they are subject to the trucking
company employer's "right of control" over their opera-
tions and work incidents so that in practical effect they are
scarcely or only formalistically distinguishable from the
company's own directly employed "company drivers" and
thus constitute a collective-bargaining community closely
knit in interest35 For this reason, there is agreement
among the parties, and properly so, that Respondent-
Employer's "owner-drivers" (to many if not most or all of
whom Respondent-Employer or its principal Kimber J.
Fraley or his truck sales agency sold their trucks),
employed at Respondent-Employer's Letart or Mingo
Junction terminal, are to be regarded as members of the
bargaining unit here.
Lincoln Fraley (a 27-year old adult) and his four drivers,
however, do not fit into this category. To begin with,
Lincoln Fraley has his own trucking business, under his
own company name ("Fraley Truck[ing] and Implement"),
operating his own fleet of trucks and trailers out of
Rushville, Indiana, which is 250 miles from Respondent-
Employer's Letart terminal and 300 miles from Respon-
dent-Employer's Mingo Junction terminal , Respondent-
Employer's only two terminals . Lincoln Fraley's Rushville,
Indiana, location is the locus of employment of his drivers.
It is not and is not regarded as a terminal of Respondent-
Employer, which has no terminal and neither owns nor
leases any real property in Rushville nor even has a
telephone there. And-unlike Respondent-Employer's
"company drivers" and "owner-drivers," who live in or
within close proximity to Letart or Mingo Junction-Lin-
coln Fraley and his drivers all live in or near Rushville,
Indiana. The fact that they haul for Respondent-Employer
is not unusual ; many trucking companies haul for other
trucking companies , and have reciprocal freight forward-
mg and freight consolidation relationships, for a variety of
reasons (including convenience , economy, avoidance of
unnecessarily duplicative trips without full outloadings,
desire not to utilize equipment beyond a certain point or in
certain areas, franchises, tariffs, unavailable or inadequate
(C.A. 6, 1972); National Freight, Inc., 146 NLRB 144; Deaton Truck Line,
Inc., 143 NLRB 1372, affd. in material part 337 F.2d 697 (C.A 5, 1964),
cert. denied 381 U.S. 903 ( 1965).
FRALEY & SCHILLING, INC. 441
equipment, certification, licenses , permits, delivery time
stringencies, etc.); but this does not mean that their drivers
or "owner-operators" are to be considered as members of
the bargaining units of the other trucking companies or
entitled to vote in their elections.
In this case; the situation is perhaps compounded by the
fact that Lincoln Fraley is he son of Respondent-Employ-
er's 50-percent principal Kimber J. Fraley and for that
reason alone (supra, fn. 49) excludable from the bargaining
unit and right of access to the ballot box. Insofar as
Lincoln Fraley's drivers are concerned, according to the
testimony of Lincoln Fraley himself-who describes
himself as an "independent trucker"-it is he who gives
them orders which they carry out, and it is he who pays
them.56 And Lincoln Fraley's trucks and trailers also haul
machinery and grain-not for Respondent-Employer here.
According to Lincoln Fraley's testimony, he can pay his
drivers what he wishes-the same as or more or less than
Respondent-Employer pays its drivers; and he, his trucks
and drivers haul for others as well as for Respondent-
Employer, under Lincoln Fraley's direction and without
Respondent-Employer's permission or authorization.57
Lincoln Fraley's trucks are stored in Rushville, Indiana, at
Lincoln Fraley's home there. Lincoln Fraley's trailer
tractors were purchased not only from his father's
company but also from other companies and private
sources; and he owns and holds them all under his own
name-"Lincoln Fraley doing business as Fraley Truck-
[ing] and Implement"-and himself carries and pays for
liability insurance covering his drivers. Lincoln Fraley
swore that Respondent-Employer does not have the power
to terminate the employment of any of his employees; and
that-notwithstanding his assertion that his trucks are now
"leased" to Respondent-Employer (contrary to the testi-
mony of his father, Kimber J. Fraley, who swore that only
some of Lincoln Fraley's trucks are "leased" to Respon-
dent-Employer), he does not need Respondent-Employer's
permission to utilize his trucks to haul for others.
Ascertainment of more precise facts concerning the true
nature of Lincoln Fraley's business relationship, past and
present, with Respondent-Employer was precluded by his
assertion that he keeps no records concerning this aspect of
his business since it involves his own father (Kimber J.
Fraley) as well as Earl Schilling , both of whom he trusts.
Lincoln Fraley's driver Terry McClure---called by
Petitioner as an adverse witness and exhibiting a high
degree of partiality toward Respondent-Employer-nev-
ertheless testified that if the truck he normally drives for
Lincoln Fraley is unavailable, it is Lincoln Fraley who
gives him another one of his (i.e., Lincoln Fraley's) trucks
to drive; and that he has never driven a truck of
Respondent-Employer. McClure explicitly testified that he
has on occasion "turned down" Fraley & Schilling loads.
He also testified that when he hauls seed corn or farm
implements, it is never for Respondent-Employer, but with
Lincoln Fraley's decal ("Fraley Truck and Implement") on
the truck. And McClure revised his earlier testimony so as
to swear that the employer listed on his income tax return
has been Lincoln Fraley, 58 who maintains his own office
and place of business in Rushville, Indiana, where the
truck McClure drives is stored and where McClure himself
lives. On the occasion of an accident, McClure's truck was
picked up by Stout, another one of Lincoln Fraley's
drivers. Finally, McClure stated that in July 1973, long
after the union election, he received two separate "pay"
checks-one from Lincoln Fraley and one from Fraley &
Schilling, Inc.
It is also to be noted that none of Lincoln Fraley's
drivers attended the meeting called and conducted by
Respondent-Employer on March 10, 1973, for its drivers;
and that Respondent's principal Kimber J. Fraley ac-
knowledged at the trial that Lincoln Fraley's drivers are
not insured under Respondent-Employer's group insurance
policy covering Respondent-Employer's drivers.
In sum, it appears that Lincoln Fraley and his drivers are
in a category clearly distinguishable, as well as physically
and otherwise separate and apart, from Respondent-
Employer's own "Company drivers" and "owner-drivers"
at its Letart and Mingo Junction terminals. As indicated
above, the mere fact that they handle some, or even many,
loads for Fraley & Schilling, Inc., does not mean that they,
any more than any other such trucking company's
principals and employees, can vote in a union representa-
tion election of the terminal drivers and other employees of
Fraley & Schilling, Inc. Upon the record as a whole, I find
that Lincoln Fraley, the son of Respondent's principal and
for that reason alone ineligible to vote (supra, fn. 49), is an
independent contractor and entrepreneur, having his own
fleet of trucks stationed and stored hundreds of miles from
either of the terminals of Respondent-Employer, in
Rushville, Indiana, where or very close to where Lincoln
Fraley and his drivers reside; that the drivers of Lincoln
Fraley at the times here involved were employees of
Lincoln Fraley, driving his trucks and taking orders and
instructions from him and paid by him at rates established
by him, and having no community of collective bargaining
interest with the Letart or Mingo Junction employees of
Respondent-Employer.59 For these reasons, they were not
56 To be sure , they sometimes-perhaps distinctly only very recently,
since union organization loomed on the horizon for Respondent-Employer,
as described above and further commented upon below-have also received
"payment" directly from Respondent (who, after all, owed it in relation to
the hauls made for it by Lincoln Fraley's company on Lincoln Fraley's
equipment).
57 Included among the companies for which Lincoln Fraley hauls is
Fraley Truck [or Tractor] and Implement Sales [or Company], Inc. (wholly
owned by his father, Kimber J. Fraley, and his mother), for which Lincoln
Fraley's trucking company hauls farm machinery. In those hauls, too,
Lincoln Fraley determines the amount of pay of his drivers. Lincoln Fraley
estimates this hauling alone as composing 30-40 percent of his total
business.
58 Still later McClure , an unwilling , evasive, equivocating, and partial
witness, indicated that he now also receives two tax statements or
withholding forms-one from Lincoln Fraley and one from Fraley &
Schilling, Inc. These were not produced.
59 Cf. Frito-Lay, Inc. v. N.L.RB., 385 F .2d 180 (C.A. 7, 1967); Danielson
v. Teamsters, Local 814, 355 F. Supp. 1293 (S.D.N.Y.); Portage Transfer
Co, Inc., 204 NLRB No 117; Conley Motor Express, 197 NLRB 624; Fleet
Transport Company, Inc, 196 NLRB 436
I do not regard as determinative here the alleged circumstance, as urged
by Respondent-Employer, that assertedly since mid-March Lincoln Fraley
and his drivers have been "earned" on Respondent-Employer's "payroll."
To begin with, framed in the reference of the congeries of circumstances,
including Respondent-Employer's acknowledged antiunion zealotry, and its
(Continued)
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
justified in casting ballots at the representation election of
the Letart and Mingo Junction employees of Respondent-
Employer, nor in insisting that those ballots be included
and counted ; and petitioner 's challenges to those ballots
(i.e., the ballots of Lincoln Fraley, Dale Stout, Terry
McClure , Michael Shubert, and William O. Kirkpat-
rick-the last-named, according to Fraley, not even in his
employ since a month or two before the stipulated voting
eligibility date) should be sustained and the ballots
destroyed unopened.
4. Other close relatives of Respondent -Employer's
principals (Robert Schilling and Clifford R. Wyatt)
Mention has already been made of Kenneth Schilling
and Lincoln Fraley, each a son of one of Respondent-
Employer's 50-percent owners, excludable from the bar-
gaining unit for that reason alone (as well as others). Two
additional voters are challenged by petitioner upon the
same ground ; namely, Robert Schilling and Clifford R.
Wyatt.
a. Robert Schilling
Robert Schilling is the 16-year-old son of Earl W.
Schilling , the 50-percent owner-principal of the closely held
Employer corporation Fraley & Schilling, Inc. He lives
with his parents in Mingo Junction .60 At the time of the
trial, he was on vacation from high school, where he had
just completed his second year. He attends school full time
except during the summer . According to his testimony,
after school lets out around 3:30 p.m., he goes to work at
his father's company's Mingo Junction Terminal from 4 to
9 or 10 p .m., changing tires , greasing trucks , "and things
like that," with Kenneth Schmitt (considered infra), also.a
high school boy of 16 , and a few others . Robert's testimony
that he works 30-35 hours per week during school time
does not square with the Employer 's stipulation in the
record based upon its books and records : according to
those records, in January, February, and March 1973
Robert worked only 80, 101, and 105 hours. According to
his testimony , he receives $1.50 per hour during the
summer , but only $1 per hour during the school term, by
checks which he cashes , receiving no W-2 form and paymg
no income tax. When he wants time off, he asks his father,
who usually agrees.
Because of his close family relationship to the Employ-
er's principal, within the frame of reference of the statutory
exclusion and decisional rules,81 and also because he is
multifarious unfair labor practices then occurring and continuing to occur,
the "placing" of those persons , obviously non-employees , on its "payroll," is
self-serving and smacks of gimmickry designed to defeat the policies and
purposes of the Act by thwarting its employees ' efforts to exercise their
statutory right to bargain collectively, through deliberate "dilution" of the
bargaining unit by inclusion therein of a close family member and his
employees . It is somewhat reminiscent of the unsavory game of musical
chairs which I encountered in 1%7 in Alco Mining Co., Inc., 169 NLRB 491,
511, fn. 7 , enfd . in material part, 425 F.2d 1128 (C.A. 5, 1970). Furthermore,
comparison of the number of "payroll " hours attributed to Lincoln Fraley
and his drivers on the "payroll" of Respondent-Employer, compared to the
payroll hours of bona-fide Respondent-Employer drivers like Devillo
Hubbard and Clifford Wyatt, is not (except in the alleged but unexplained
case of Stout) impressive on the proposition that they were full-time
employees of Respondent-Employer, it being noted that part-time employ-
ees are excluded from the bargaining unit.
hardly more than a part-timer at best and as such expressly
excluded from the stipulated bargaining unit , Robert
Schilling should not be considered a member of the
collective-bargaining unit here , and Petitioner's challenge
to his ballot should accordingly be sustained and the ballot
destroyed unopened.
b. Clifford R. Wyatt
Clifford R. Wyatt is likewise challenged by Petitioner
upon the basis of close relationship , as the son of the
Employer's Letart Terminal Manager Charles L. Wyatt.
Since the two sole and equal owners of the Employer are
Earl W . Schilling and Kimber J . Fraley, it is apparent that
Charles L. Wyatt, the father of Clifford R. Wyatt, is
neither a principal nor stockholder of the Employer. The
mere fact that Clifford R. Wyatt , who works as a full-time
mechanic at Letart Terminal , is the son of the manager
there, is insufficient to disqualify him from inclusion in the
bargaining unit either under the statute or the parties'
stipulation defining the agreed unit . Petitioner's challenge
to the ballot of Clifford R. Wyatt should accordingly be
overruled , and that ballot opened and counted.
5. Alleged nonemployees and part-time or casual
employees (Roy O . Ross, Dean Perkins, Landis
Wandling, Fred Bloom , Kenneth Schmitt, Robert
Scharfenberg, Mitchell Holley,
and Mitchell Holley, Jr.)'
Petitioner has also challenged eight other balloters as not
bona-fide, or as part-time or casual, employees of the
Employer.
a. What is ' f ull-time" work for this Employer?
Credited testimony of Petitioner's witness Devillo Hub-
bard, corroborated in part by his official driver's log book
record, establishes that a usual full-time "company driver"
driving job with the Employer involves from around 240 to
280 or more hours of work during a 4-week month (i.e.,
60-70 hours per week), 82 while that of an "owner-driver" is
200 to 280 hours for the same period. Because of the
Employer's unexplained failure to adduce satisfactory
proof, such as its own books and records, to establish the
contrary, the foregoing provides the best available yard-
sticlc,within thefourcorners of the record here as to what is
"full-time" duty for this Employer's drivers, and I so find.
Insofar as the mechanics are concerned, Respondent's
w While exhibiting intelligence on the witness stand , Robert neverthe-
less, in connection with being sworn in, exhibited possible lack of total
comprehension as to the nature of the oath . He also demonstrated
understandable partiality toward his parents ' interests, among other things
keeping a weather-eye closely fixed upon them while testifying.
si Siipra, In. 49.
62 This is said at times to exceed the "legally permissible maximum of 70
hours per week ." Hubbard's January 1973 log (Pet . Exh. 2) shows a total of
236 duty hours. with 11 -12 hours per day not unusual , and on one day 15-
1/2 hours, Based upon comparative demeanor and Hubbard 's log book, as
well as Respondent's unexplained failure to produce its own records, I do
not credit the uncorroborated rebuttal testimony of Kimber J. Fraley to the
extent inconsistent with the described credited testimony of Hubbard. (Mrs.
Schilling, the Employer's secretary-treasurer and bookkeeper, testified
credibly that she is unable to estimate the average number of hours worked
by its drivers.)
FRALEY & SCHILLING, INC. 443
supervisory mechanic Kenneth Schilling testified that the
mechanics work about 50 hours per week, or at any rate 6
days per week and 8 hours per day-that is, about 200
hours during a 4-week month ; I so find.
b. Data and findings
The material data , and my findings and conclusions,
concerning the individuals under immediate consideration
and Petitioner's challenges to their ballots, are summarized
in the attached Appendix.
D. Recapitulation of Findings as to Challenged
Ballots
The following recapitulates findings herein made con-
cerning the 19 challenged ballots:
Challenged
bX Challenge
Arnold Clark Employer Overruled
Harrison Robinson of
is
William Davis Sustained
itionerKenneth Schilling Pet
Lincoln Fraley it
Dale Stout
Terry McClure
Michael Shubert
William 0. Kirkpatrick
Robert Schilling
Clifford R. Wyatt
Roy 0. Ross
Dean Perkins
Landis Wandling
Fred Bloom
n
Kenneth Schmitt If
Robert Scharfenberg it Overruled
Mitchell Holley it Sustained
Mitchell Holley, Jr. It it
Upon the foregoing findings and the entire record, I statq
the following:
CONCLUSIONS OF LAW
1. At all material times, Respondent Fraley & Schilling,
Inc., has been and is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. At all material times, Fratenal Association of
Special Haulers , Local Union 100, Charging Party herein,
has been and is a labor organization within the meaning of
Section 2(5) of the Act.
3. Jurisdiction is properly asserted in this proceeding.
4. By interrogating, engaging in surveillance of its
employees' protected concerted activities , making econom-
ic and other threats, instituting a wage increase under the
circumstances described , discharging its employees Devillo
Hubbard, Arnold Clark, and Harrison Robinson, and acts
of interference , restraint, and coercion, and by each of said
acts , as set forth and found in "II," supra, Respondent has
interfered with, restrained , and coerced , is interfering with,
restraining , and coercing, and unless permanently enjoined
will continue to interfere with , restrain, and coerce, its
employees in the exercise of rights guaranteed in Section 7,
in violation of Section 8(a)(l), of the Act.
5. By its discharges of and failures and refusals to
reinstate its employees Devillo Hubbard, Arnold Clark,
and Harrison Robinson, and by each of said discharges
and failures and refusals to reinstate, as set forth and found
in "II," supra, Respondent has discriminated, is discrimi-
nating, and unless permanently enjoined will continue to
discriminate, against employees in regard to the hire,
tenure, and terms and conditions of their employment,
thereby discouraging membership in a labor organization,
in violation of Section 8(a)(3) of the Act.
6. At all material times, the following unit of Respon-
dent's employees has been and is appropriate for collec-
tive-bargaining purposes within the meaning of Section
9(b) of the Act:
All truck drivers, truck owner-operators and mechanics
employed at the Employer's Letart, W. Va., and Mingo
Junction, Ohio terminals excluding all part-time em-
ployees, casual employees, dispatchers, office clerical
employees, professional employees, guards, and super-
visors as defined in the National Labor Relations Act.
7. On April 2, 1973, Respondent's employees in the
foregoing appropriate collective bargaining unit engaged
and have since continued to engage in a concerted work
stoppage or strike.
8. Said concerted work stoppage or strike was in its
inception due to and caused at least in substantial and
controlling part by Respondent's unfair labor practices,
and each of them, found herein, which occurred on or prior
to, or continuing on, April 2, 1973.
9. Said concerted work stoppage or strike was pro-
longed, and has to date continued to be prolonged, at least
in substantial and controlling part, by Respondent's unfair
labor practices, and each of them, found herein.
10. Said concerted work stoppage or strike was in its
inception, has at all times since its inception continued to
be, and is, an "unfair labor practices strike" constituting
protected concerted activity under the Act.
11. On or about and continuing since April 19, 1973,
Respondent threatened employees in the foregoing appro-
priate bargaining unit who had engaged and were
continuing to engage in the aforesaid protected concerted
work stoppage or strike since April 2, 1973, by reason of
Respondent's aforementioned unfair labor practices, with
discharge or permanent replacement and loss of economi-
cally valuable benefits accruing to their employment with
Respondent, unless they returned to work for Respondent
,on or about May 25, 1973.
12. By its said action, Respondent has interfered with,
restrained, and coerced, is interfering with, restraining, and
coercing, and unless permanently enjoined will continue to
interfere with, restrain, and coerce, employees in the
exercise of rights guaranteed in Section 7, in violation of
Section 8(a)(1), of the Act.
13. The aforesaid unfair labor practices and each of
them affect, are affecting, and unless permanently enjoined
will continue to affect, commerce within the meaning of
Section 2(6) and (7) of the Act.
14. It has not been established by a fair preponderance
of the substantial credible evidence that Respondent
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged William Davis from its employ, or failed to
reinstate him, in violation of Section 8(a)(3) and ( 1) of the
Act as alleged in the complaint herein.
15. It has not been established by a fair preponderance
of the substantial credible evidence that Respondent has
violated Section 8(a)(1) of the Act in any respect alleged in
the complaint herein but not found in "II " hereof.
REMEDY
With regard to remedying the unfair labor practices
comprising the violations of Section 8(a)(1) and (3) which
have been found, I shall recommend the usual cease and
desist order and affirmative relief customarily ordered in
cases of this nature , involving interference , restraint, and
coercion , and discriminatory discharges and failures to
reinstate . The recommended Order will, accordingly,
require Respondent to cease and desist from the unfair
labor practices found; and to offer its discriminatorily
discharged employees Devillo Hubbard, Arnold Clark, and
Harrison Robinson immediate and full reinstatement to
their former or substantially equivalent positions , without
prejudice to their seniority or other rights and privileges,
and to make them whole for any loss of earnings they may
have suffered in consequence of their unlawful discharges,
by payment to them of a sum of money equal to that which
they normally would have earned as wages from the dates
of their respective discharges herein found, including any
losses to Harrison Robinson arising from his idled
equipment , to the date of Respondent's offer to reinstate
them to their former or substantially equivalent positions,
less their net earnings if any during such period, backpay
and interest to be computed in the manner prescribed by
the Board in F. W. Woolworth Company, 90 NLRB 289,
and Isis Plumbing & Heating Co., 138 NLRB 716.
Respondent shall also be required to make whole and to
reimburse "owner-drivers" Charles Clark and Keith M.
Woods , as well as any other "owner-drivers" similarly
situated, for any monetary loss including loss of pay or
income , with interest, sustained by them by reason of
es See in. 44, supra.
s+ Roosevelt Roofing and Sheet Metal Works, Inc, 205 NLRB No. 110 at
fn. I and cases cited.
ss Cf. N.LR B v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A 4).
se Petitioner Union in the representation case filed no objections to the
conduct of the election or to Employer conduct affecting the outcome of the
election.
Respondent 's discriminatory repossession of and other
actions affecting their trucks under the circumstances
described, such having been motivated, as herein found, in
controlling part as punishment for engaging in protected
concerted union activities .63 However, in the case of
Charles Clark and Keith M. Woods, since they were on
strike at the time of Respondent 's action against them, the
right to reimbursement for pay or income lost shall be
tolled during the period while out on strike , and shall
commence 5 days from the date of their respective
unconditional applications for reinstatement to the date of
Respondent 's offer of reinstatement 84 Respondent shall be
required to make available necessary records for computa-
tion of backpay to its discharged employees as well as for
computation of appropriate reimbursement to Harrison
Robinson for his idled equipment, and also for any
reimbursement to its said discriminatorily-treated "owner-
drivers" Arnold Clark and Keith M. Woods.
In view of the fact that the unfair labor practices here are
numerous and of a character striking at main roots of the
Act and its intended guarantees, I shall include a provision
requiring Respondent to cease and desist from any
infringement, upon the rights secured by Section 7 of the
Act 85 The usual notice posting will also be required.
Consideration of the question as to the appropriateness
of a bargaining order (cf. N.L.R.B. v. Gissel Packing
Company, 395 U.S. 575 (1969)) is not reached here,66 in
view of the fact that it has not been established by
substantial credited evidence as required that the Union
represented a majority of the employees in the appropriate
collective bargaining unit at the time of any of its demands
for recognition.67 Accordingly, the Union's representation
status or lack of it should, for purposes of this consolidated
proceeding, await the opening and counting of those
ballots to which objections are overruled.
Recommendations to the Board concerning disposition
of the challenged ballots in the election of May 10-24,
1973, are set forth in "III ," supra.
[Recommended Order omitted from publication.]
87 I do not regard the conclusory and self-serving testimony of General
Counsel's witnesses Hill and Hubbard that I I union cards were signed, nor
of Union President Hill that he told this to Respondent, as sufficient
without more to establish that the Union in fact represented a majority of
the employees in the bargaining unit here . No signed union cards or other
solid indicia of the Union's majority representation status were produced at
the trial.
FRALEY & SCHILLING, INC.
,APPENDIX
Count
445
Name
Hours Paid
1973
Jan . Feb. Mar.
Nature
of
Services
Form
Used a/
JFipi.
or
Not a
Part or
Full
Time b/
tPtnrs.
Challenge
to Ballot
Ballot or
Destroy
Unopened
Roy 0. Ross 0 19/ 40 Driving 1099 Not Part Sustained Destroy
Dean Perkins 38 24/ 22/ Driving 1099 Not Part Sustained Destroy
Landis Wandling 79' 39/ 111/ Driving 1099, W-2 Not S/ Part Sustained Destroy
Fred Bloom 159 157 124 Mechanic W-2 Empl. Part d/ Sustained Destroy
(Mingo
Jet.)
Kenneth Schmitt 95/ 98/ 85 Mechanic W-2 Empl. Part e/ Sustained Destroy
(Mingo
Jct.)
Robt. Scharfen - 155 177/ 162/ Mechanic W-2 Empl. Appx. Overruled Count
berg (Mingo full
Jct.)
Mitchell Holley 225 97 205 Driving 1099, W-2 Notc/ Part Sustained Destroy
Mitchell Holley, 0 0 118 Driving W-2 Not Part f/ Sustained Destroy
Jr.
I
a/ The parties have stipulated that where an individual is paid by Fraley
& Schilling, Inc., with the use of a Form W-2, income tax is withheld and
social security paid ; and that where he is paid with the use of a Form 1099,
he receives a lump sum with no withholding of income tax or payment of social
security (and that in the latter case he may , or may not, be merely the owner
but not the drier of a vehicle leased by him to Fraley & Seb ling, Inc.). It
would accordingly seem that , while use of the Form W-2 ould not ipso
facto establish the payment recipient to be an employee, at any rate use of
the Form 1099 would rule him out as an employee since it is not to be
presumed that he and Fraley & Schilling, Inc., violated the law in this
regard by failing to withhold income taxes or make social security
payments . Cf. Danielson v. Teamsters, Local 814, 355 F Supp. 1293
(D.C.N.Y.).
b/ See discussion supra, section 5, a.
c/ I.e., not established to be employee or to have any right to vote; not
shown how much is Form W-2 "pay" as distinguished from Form 1099
income (see In. a, supra). (Credited testimony of Arnold Clark shows
Wandlmg paid his own drivers on trucks leased by Wandling to Fraley &
Schilling, Inc.)
d/ Regular job is with Foote Mineral Company.
e/ A 16-year-old high school boy, like Robert Schilling
f/ Allegedly first appeared on Employer's "payroll" on March 14, 1973,
while employed and paid by father , Mitchell Holley (as a dual driver with
his father), an "owner-operator" paid with Form 1099 as well as Form W-2.
Not established to be a bona fide employee, and in any event only part time.
I