Fredickson Motor Express Corp.

National Labor Relations Board - Board Decisions

Jun 8, 1971

190 N.L.R.B. 770 (N.L.R.B. 1971)

770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fredickson Motor Express Corporation and James H.
Reed and Donnie E. Rice . Cases I 1-CA-4235 and
11-CA-4250
June 8, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND KENNEDY
On March 10, 1971, Trial Examiner Eugene F. Frey
issued his Decision in the above-entitled consolidated
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the at-
tached Trial Examiner's Decision. The Trial Examiner
also found that Respondent had not engaged in and was
not engaging in certain other unfair labor practices
alleged in the complaint and recommended that these
allegations of the complaint be dismissed. Thereafter,
the General Counsel filed exceptions to the Decision
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this proceeding to a three-member
panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and brief, and the
entire record in this proceeding, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended , the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that Respondent,
Fredrickson Motor Express Corporation , Asheville
and Johnson City , North Carolina , its officers , agents,
successors , and assigns, shall take the action set forth
in the Trial Examiner 's recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE F. FREY, Trial Examiner: The issues in this case
are whether Respondent, Fredrickson Motor Express Corpo-
ration, interrogated employees about their union activity and
threatened to discharge them therefor, in violation of Section
8(a)(1) of the National Labor Relations Act, as amended, 29
U.S.C. Sec. 151, et seq. (herein called the Act), and whether
or not it discharged the charging parties, James H. Reed and
Donnie E. Rice, because they joined or assisted Drivers Local
Union No. 61, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (herein called the Union), in violation of Section
8(a)(3) of the Act, or for good cause unconnected with their
union activity. The issues arise on a complaint issued July 20,
1970, by the Board's Regional Director for Region 11,' and
answer of Respondent admitting jurisdiction but denying the
commission of any unfair labor practices.
These issues were tried before me at Asheville, North
Carolina, on October 13, 14, and 15, 1970, with General
Counsel and Respondent participating through counsel and
Reed and Rice appearing in person. At close of oral testimony
on October 15, the Trial Examiner adjourned the hearing sine
die to allow the parties to determine whether Everett W.
Fredrickson, president of Respondent who was unavailable
due to illness, might be well enough to testify at a later date.
Upon agreement of counsel the deposition of Fredrickson was
taken in written question and answer form and sworn to by
him on November 16, 1970, and submitted with certain addi-
tional exhibits to the Examiner for incorporation in the
record. By order of December 1, 1970, the Trial Examiner
admitted the stipulated testimony and exhibits in the record,
closed the hearing, and gave the parties permission to file
written briefs on or before January 8, 1971. Briefs filed by
both parties on January 11, 1970, have been carefully consid-
ered in the preparation of this Decision, which was signed
and issued by me on March 5, 1971, for transmittal to all
parties in the usual course.
Upon the entire record in the case, including my observa-
tion of the witnesses and their demeanor on the stand, I make
the following:
FINDINGS OF FACT
I RESPONDENT 'S BUSINESS,
AND THE STATUS OF THE UNION
Respondent, a North Carolina corporation, is a motor
freight carrier, licensed by the Interstate Commerce Commis-
sion, with terminals located in Asheville, North Carolina,
Johnson City, Tennessee, and other places, where it engages
in the business of transportation of freight by motor carrier.
In the 12 months prior to issuance of the complaint herein,
Respondent in course of its business received gross revenue
in excess of $50,000 from operations of its Asheville terminal
which handled freight transported to and from places outside
North Carolina. I find that Respondent is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
' In the absence of exceptions, we adopt pro forma the Trial Examiner's
findings of 8(a)(1) violations, and his dismissal of the 8(a)(3) allegation with
respect to employee Donnie E Rice
' The complaint issued after due Board investigation of a charge filed by
Reed in Case 11-CA-4235 on May 13, 1970, and a charge filed by Rice in
Case 11-CA-4250 on May 22, 1970
190 NLRB No. 142
FREDRICKSON MOTOR EXPRESS CORP
II THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Union Activity, and Respondent's
Reaction to it
At all material times herein, the following persons have
been officers of Respondent and supervisors within the mean-
ing of the Act: Everett W., Fredrickson as President; Harold
Thomas as District Terminal Manager; Richard Ray as
Asheville Terminal Manager; and Bob Lentz as Johnson
City, Tennessee, Terminal Manager.
In 1968 the Union filed a petition under Section 9(c) of the
Act in Case 11-RC-2845 for an election among a unit of
employees including drivers at its Asheville and Canton,
North Carolina, terminals. After a Board-conducted election
held on January 8, 1969, the Union was certified on January
16, 1969, as bargaining agent for unit employees at the Ashe-
ville terminal. In the preceding organizing campaign, Reed
and Rice assisted the Union by getting union authorization
cards signed by employees at the Asheville and Greensboro,
North Carolina, terminals and at their homes. Reed was also
a member of the union negotiating committee which met with
Respondent's officials in three or four meetings starting May
8, 1969. On February 9, 1970, Respondent received a letter
dated January 23, 1970, and signed by 44 employees at Ashe-
ville, including Reed and Rice, which advised it that the
signers had participated in union activity "in accordance with
Teamsters Local No. 61" and intended to do so in the future.
Once in February 1969, driver Joseph R. Niston was told
by then Asheville Terminal Manager Penland in his office,
that he would "clean out the union mess if he had to fire every
damn man there," that it might take a year or two, but he
would "ease them out one at a time." Once in February or
March 1969, District Operations Manager Thomas told Nis-
ton on the dock at Asheville that it might "take a year or two
but the union men would be eased out one or two at a time."2
On December 27, 1969, when local driver Arthur A. Buck
at the Johnson City, Tennessee, terminal, was checking out
before taking out a load as line driver, Supervisor Robert
Lentz' talked to him privately in his office, saying he liked
Buck and wanted to give him some advice. He said Respond-
ent was having union troubles at some terminals and he did
not want Buck involved in them or in trouble with the Com-
pany, and suggested that Buck should avoid having any talk
with anyone anywhere who tried to discuss unions with him.
He added that if he did take part in such discussions, Re-
spondent would find out about it, and President Fredrickson
had told Lentz that any man "having any part for the union
would be weeded out one way or the other." Once in April
1970, Lentz had a short talk with Buck in which he said he
had a question which Buck could answer or not, but he had
reason to suspect that line driver Gene McKay was a member
of the Union and engaged in union activities, and asked if
Buck knew whether McKay carried a union card. Buck said
if McKay did, he knew nothing about it.' I find from the
I find these conversations from uncontradicted testimony of Niston
Neither Penland nor Thomas testified in the case
In this period, Lentz was not yet terminal manager at Johnson City but
exeicised some supervisory authority within the meaning of the Act He
became terminal manager formally on January 2, 1970
Buck, who was discharged for good cause on June 19, 1970, testified
that both talks with Lentz were quite short Lentz admits talking often to
Buck, whom he had known for some years, but denies categorically that
these discussions took place Lentz testified credibly that at the time of the
first talk, Buck was still a local driver and remained in that status for at least
3 more weeks before working as a line driver While these circumstances
indicate that Buck may have testified from partisan motives and raise some
question about his credibility, I credit his version of the talks, because in
view of the prior remarks of Penland and Thomas found above, I consider
771
above remarks of various supervisors that, as early as Febru-
ary 1969, Respondent displayed its union animus to em-
ployees, indicating in the process that it might implement
that animus by a gradual process of weeding out union adher-
ents. The latter remarks by Penland and Thomas were coer-
cive threats of discharge for union adherence, and Lentz'
similar remarks to Buck in December 1969, and questioning
him in April 1970, about the union activities of another em-
ployee, amounted to additional coercive threats of discharge
and interrogation of an employee which is chargeable to Re-
spondent. I find that by all of this conduct Respondent vi-
olated Section 8(a)(1) of the Acts
B. The Discharges of Reed and Rice
The record shows that James H. Reed and Donnie E. Rice
were both line drivers at the Asheville terminal at time of
their discharges, and that top management of Respondent
ordered the terminal manager , Richard Ray, to discharge
them, with Ray advising each that he was being discharged
automatically in accordance with company rules and policy
for having had three chargeable accidents within 1 year.
While the long existence and validity of the policy is not
questioned by General Counsel, the actual detailed operation
of the policy in its application to drivers must be reviewed,
because of the claim of General Counsel that it was applied
leniently or not at all to accidents of nonunion adherents,
regardless of the type or amount of damage, but strictly ap-
pled to minor accidents of Reed and Rice in order to furnish
an excuse to get rid of them.
1. The Safety Program
Since 1946 Respondent has had a Safety Program to gov-
ern driving habits of all employees who may at any time
operate company vehicles,' which was designed to improve
and maintain safe driving habits and reduce driving accidents
which might result in cost to Respondent. Since about 1962
the Program has been formalized and outlined in its present
form in a Terminal Manager's Manual issued to all terminal
managers to govern their management of terminal opera-
tions. Its scope and operation is made known to drivers in
various ways: When hired, it is explained to them in detail by
the terminal manager , often with quotations from the
Manual , and some new men are allowed to read the Program
in the Manual; they are reminded periodically of its operation
and purpose by Respondent's Safety Director, Gerald N.
Rogers, and terminal managers in regular and special safety
meetings for drivers, and they experience its operation per-
sonally when they file initial reports of their own accidents,
receive written decisions on chargeability thereof, and take
ensuing appeal steps in the Program.
As outlined in the Terminal Manager's Manual and dem-
onstrated by credible testimony of various drivers and com-
pany officials,' the Program is plainly designed to foster hab-
its of preventive and defensive driving in order to prevent
accidents, and for this purpose the Manual explicitly defines
it more likely than not that Lentz was aware of Respondent's animus toward
unions and was trying privately to forewarn Buck, a friend of his, that the
way to stay out of trouble was to avoid any union activity or the appearance
thereof
' In view of this finding, it is unnecessary to analyze or make findings on
this issue on testimony of similar remarks by Penland to Reed in 1968
6 This includes supervisors, office, and dock personnel to a limited extent,
and about 425 drivers, both local pickup and line (or road) drivers, operating
out of 13 terminals
' Gerald N. Rogers, Richard Ray, Robert H Lentz, and drivers James H
Reed, Donnie E Rice, and others
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the "defensive driver ."8 For purposes of making dnver
awards under the Program , a reportable accident is defined
as any involving a company vehicle, where death , personal
injury or property damage is involved ; all such accidents
must be reported "regardless of who is hurt, what property
is damaged or to what extent , where it occurred , or who was
responsible." A "preventable accident" is any reportable ac-
cident in which a company driver failed to exercise every
possible precaution to prevent it. Responsibility to prevent
accidents thus goes beyond careful observance of traffic rules
and regulations and rules out contributory negligence issues;
drivers must drive in a manner to prevent accidents , regard-
less of the other driver 's faulty operation or nonobservance
of traffic regulations . In reviewing accidents to determine
preventability, responsibility of the driver is based on whether
it was preventable by him, not on who was primarily respon-
sible or at fault. Thus, unless the facts from thorough investi-
gation show extenuating circumstances quite beyond the dri-
ver's control, all driving and other accidents , particularly a
long list specified in the Manual ,' are considered preventable.
If three preventable accidents are charged to a single driver
in a 1-year period , this is considered grounds for dismissal.
Awards are provided for drivers who drive for 12 consecu-
tive months without a chargeable accident , and additional
awards, of increasing value, are given for each additional
12-month accident-free driving period On the other hand, a
driver is penalized for any chargeable accident in a 12-month
period by having the beginning of a 12-month period for
award purposes postponed for 6 months after the date of that
accident . This penalty is assessed on any chargeable accident,
regardless of the extent or monetary amount of damage in-
volved.
Both in the Manual and in oral instructions to drivers,
Respondent has stressed repeatedly that all accidents must be
reported at once to the terminal manager or other supervisor
of the employee , and failure to report any will cause it to be
counted as a chargeable accident and as grounds for dis-
missal."
When involved in a reportable accident as defined above,
a driver must report it promptly to his terminal manager or
supervisor , who will assist him to make a written report of the
driver's version of the accident. This is signed by the driver
and sent to Safety Director Rogers, at Respondent's main
office in Charlotte, North Carolina." The terminal manager
makes no comment or recommendation on the driver's re-
port , or separately , to the Safety Director at the time or after
the report is sent in , nor does he normally investigate the
A defensive driver is one who is careful to commit no driving errors
himself, who makes allowance for lack of skill or improper attitude on the
part of the other fellow , and who does not allow hazards of weather and road
conditions or the actions of pedestrians and other drivers to involve him in
an accident. He keeps continually on the alert , recognizes an accident-
producing situation far enough in advance to apply the necessary preventive
action and concedes the right-of-way when necessary to prevent an acci-
dent
9 The list, which is set forth in part to guide the Accident Review Board
in deciding whether an accident should be charged against a driver 's record,
includes, in pertinent part Backing accidents , squeeze plays and shutouts,
accidents involving movement in and out of parking spaces , driveways and
alleys , noncollision and collision with fixed objects , accidents due to faulty
brakes , and about 14 other specific types. On those listed , the reason for the
rule and the decision that the driver is normally charged therefor is stated
in some detail
11 I credit testimony of drivers A Dale Robinson , Lonnie E King , Arliss
A. Sluder, Oder R Anders, and Garren Rogers on this, as corroborating the
Manual terms and testimony of company officials Gerald N Rogers, Ray
and Lentz
11 The Safety Division is one of seven main operating divisions of Re-
spondent , and its director reports directly to President Frednckson
accident in person and send any report thereof to the Safety
Director."
When the report comes in, Rogers records it in cumulative
records of accidents of all drivers , and checks to see if it is
the first , second , or third in a 12-month period , and also
whether it appears to be a serious accident involving unusual
carelessness by the driver . If the latter appears, Rogers sub-
mits the report at once to President Fredrickson , and the two
decide whether it is bad enough to discharge the driver at
once, or whether to submit it to the Review Board described
hereafter . If they decide the accident was serious and involved
flagrant carelessness by the driver , Fredrickson may order the
terminal manager to discharge him on the spot , regardless of
whether it is the first or second accident in a year ; if it is the
third , and it appears to them to be preventable and thus
chargeable , Frednckson will order his discharge under the
three-accident rule without further ado . If they have any
doubts as to its preventability in any instance , Rogers will
send the case to the Review Board . If the Board finds the
accident preventable and chargeable , Rogers enters it as such
on the driver 's record if it is the first or second in a year, but
if it is the third he is discharged at once."
Where Rogers and top management decide the accident
should be reviewed by the Accident Review Board , Rogers
accumulates such reports and, once a month , travels to the
various terminals to have them reviewed by a Review Board
of impartial drivers. He brings to one terminal the accumula-
tion of accident reports of drivers from other terminals, asks
the terminal manager to select and convene while he is there
a Board of three drivers. In selecting that terminal, he
chooses one where there have been no accidents reported for
at least a month past . After the Board is chosen , but without
prior knowledge of its composition by Rogers , he meets with
it in some private room or part of the terminal and details its
duty to appraise accidents he is presenting in accordance with
the procedures , standards, and rules set forth in the Safety
Program ; if Board members ask questions about the Pro-
gram , as where a driver never before sat on a Board , he lets
them read copies of the Safety Program from the Manual, or
explains specific portions as desired . He then details the facts
of each accident from the driver 's accident report , including
all facts he states in defense of his conduct , but without
stating his name , terminal , or location of the accident, or any
data about the amount of damage. The Board then decides if
in their opinion the driver did everything in his power to
prevent the accident , and votes orally on whether the acci-
dent was preventable . Rogers makes no suggestions or recom-
mendations on this, only answers questions about the facts or
the application of the Safety Program , if asked. He presents
each accident , and the Board decides on it , in the same way.
If the Board holds an accident was preventable , Rogers ad-
vises the driver by letter of its decision. The driver may appeal
this decision by requesting review of it by the Board within
7 days after receipt of the notice of initial decision . On such
review , he may present his arguments or defense by letter. If
" On occasion , the manager may visit the scene of an accident at the
request of the driver involved, to assist injured persons or have wrecked
vehicles removed , or to call police to the scene
" Aside from review of accidents by the Safety Division, top manage-
ment, and the Review Board in the Safety Program, a terminal manager has
full authority to discharge a driver for a single accident, whether or not it
is his first , if he decides that the circumstances show an accident caused by
such conduct of the driver as to indicate a disregard of his basic responsibil-
ity to his employer in handling company property and doing his work
properly . Exercise of this authority by a manager is apparently part of his
basic discharge power as the top supervisor of a terminal; he can exercise
it without prior approval of either Rogers or top management , and Rogers
has never sought to review such a discharge under the Safety Program
FREDRICKSON MOTOR EXPRESS CORP.
the Board affirms its decision , Rogers informs him of it, and
the driver may within a similar 7 days seek a second review
by letter, on which occasion he may appear before the Board
in person , or in unusual cases may tell them his arguments
over the telephone . If the Board still reaffirms its decision, the
driver is notified by letter and charged with the accident."
The application of the above Program to Reed and Rice is
now considered.
2. The conduct of Reed
Reed was hired by Respondent in 1954 and worked about
13 years as a line driver, then as local pickup truckdriver for
a year . In 1968 he was made a dock supervisor , but after a
year at that job was transferred to local driving at his own
request , and continued in that job until his discharge on May
8, 1970 . As found above , Reed was an active organizer for the
Union in 1969 , and was an open member of its negotiating
committee during negotiations with Respondent early in
1969.
In the year before discharge Reed had three accidents with
his company truck . In August 1969, while driving his pickup
truck out of a parking lot after making a delivery at a local
hospital , he sideswiped a parked car, putting a large dent in
its fender . He reported it to Terminal Manager Ray, and with
his help made out the usual accident report for Safety Direc-
tor Rogers , who reviewed the report and submitted it to a
Review Board in usual course . The Review Board voted
unanimously that it was preventable . Rogers advised Reed by
letter in December that it was ruled chargeable to him. Reed
did not appeal that decision further. Respondent or its insur-
ance carrier paid for the damage to the private car.
On November 25, 1969 , while Reed was backing his truck
up to a loading platform of a consignee , Haywood Auto
Parts, in Waynesville , North Carolina , he struck a closed
overhead door at the platform with the rear chassis of the
truck , slightly scratching the paint on a door panel. He
showed the mark to the store manager who told him to forget
it, saying no damage was done . Reed duly reported the acci-
dent to Ray the same day and signed and sent a report in-
dicating how it happened , including the consignee's state-
ment of no damage . He also had the store manager send
Rogers a letter indicating the minor nature of the damage,
and praising Reed for reporting it promptly to the manager.
Haywood Auto Parts did not make any claim against Re-
spondent for the damage . 15 Rogers submitted Reed 's report
to a Review Board in the usual course , which ruled unani-
mously that it was preventable . Rogers notified Reed of the
decision in January . Reed appealed it again to the Board,
within 7 days as required by the Safety Program rules. After
further review the same Board unanimously affirmed its first
decision , and by letter of February 3, 1970 , Rogers advised
him that it was chargeable because he had hit a fixed object
while backing his truck . On February 8, 1970 , Reed appealed
that decision , seeking a personal appearance before the
Board , on the ground that the accident caused no damage or
loss to anyone . On April 3 , the Board advised him that after
further review it still considered the accident preventable and
chargeable.
On May 4 , 1970, while backing his truck into a loading
platform at the Pet Dairy Milk Company plant in Waynes-
ville, Reed 's large pickup truck struck and bent a gang board,
a sort of small platform hinged on the dock edge for use by
" These facts are found from credible and mutually corroborative tes-
timony of Gerald Rogers, Reed , Rice, and Lentz.
" Sometime after the accident Ray personally inspected the damage to
the door at the request of Reed but did not make any report to Respondent
about it
773
Pet Dairy trucks in loading milk. While backing in, Reed was
guiding his truck movement by watching hand signals of a
Pet Dairy shipping clerk who stood at the rear of his truck
near the platform to tell him when to stop backing . Although
Reed had made deliveries at this dock twice a week for over
a year , a clerk had always assisted him thus on past deliveries,
because Reed had to back his truck into a narrow space, while
watching vehicles parked on both sides and traffic in the
street . Reed at once reported the damage to the Pet head
shipping clerk who told him to forget it , as the damage could
be repaired in the Pet shop . Reed reported the accident that
day to Ray, and with his help made out and signed the usual
report , which was sent to Rogers the same day . Respondent
paid for the damage itself. As this was Reed 's third accident
within 12 months , Rogers reviewed it with Fredrickson at
once, they decided it was preventable and chargeable, and
direected Ray to discharge him under the three -accident rule.
On this decision , the accident was not sent to a Review Board.
On Monday , May 8 , 1970, when Reed came to work, Ray
told him he had to let him go because he had three chargeable
accidents in a 12 -month period . Reed asked if the report had
gone to the Review Committee , and Ray said he did not
know , as he only knew what Reed had said in his report. Reed
said he had been expecting the discharge. Reed did not work
that day and has not worked for Respondent since."
Prior to these accidents , Reed had had only three acci-
dents, two of them chargeable to him , during his 13 years'
employment , but never three chargeable in a 12-month
period."
3. The conduct of Rice
Donnie E . Rice was hired by Respondent in 1962. After
working on the dock about 9 months, he became a local
driver at Asheville terminal and continued in that job until
his discharge on May 18, 1970. I have already found that he
assisted the Union during its 1969 organizational drive and
also formally notified Respondent of his union activity about
February 9, 1970.
In the year before discharge , Rice had three driving acci-
dents charged to him , as follows: On August 28, 1969, while
driving a tractor-trailer unit on a main street in Asheville,
North Carolina , which was free of other traffic at that point,
he struck a tree limb hanging over the roadway and mashed
in the top right -hand corner of the trailer box. He knew the
street well , as he drove over it two or three times a week. He
filled out the usual report with the help of Ray After review
in due course by Rogers , and a Review Board , Rogers notified
him that it was ruled a chargeable accident . He did not appeal
the decision . In late December 1969 or early January 1970,
while driving his unit through a gate at a telephone company
plant in Asheville , his trailer struck a car parked near the
gate. On complaint to him by the car owner , Rice reported
it by telephone to Ray , and then to the local police who
investigated the accident . The car owner also called Ray
about it. Rice and Ray promptly sent the usual report to
Rogers, and after due review by a Board , Rogers advised Rice
that the accident was chargeable . Respondent apparently
paid for the damage. On February 27, 1970 , Rice brought a
leased trailer back to the terminal after deliveries, and while
16 The above facts are found on credited testimony of Reed, Philip R
Smathers , Gerald Rogers, Ray, and documentary evidence
" In 1959 he was charged when he damaged a fender on his truck while
backing into a driveway In 1964 was charged when he damaged both his
truck and one alongside it while backing into the terminal dock He was not
charged when he scraped a rock in 1968 while trying to avoid an oncoming
vehicle on a narrow mountain road, although the damage to one side of his
trailer was extensive
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
backing it up to the dock platform the top of the trailer struck
and damaged a railing at the top of the dock, bending a gutter
and breaking three clearance lights on the top of the trailer.
In his report of the accident, Rice noted that it was a high
trailer, the height of which was not marked on it in the
normal way, hence he did not know it was unusually high
trailer.18 As it was Rice's third accident in a year, Rogers and
President Fredrickson reviewed it, but disagreed on whether
it might be chargeable, so they sent it to a Review Board,
which decided unanimously that it was preventable and
chargeable after considering the excuses Rice had stated in
his report. Rogers advised Rice of this decision by letter of
May 12. Rogers and Fredrickson then decided to discharge
Rice, and told Ray to do so. When Rice reported for work
on May 18, Rice told him he was being discharged for three
accidents in 1 year.19
Prior to these accidents, Rice had had five earlier accidents,
three chargeable and two nonchargeable, but never three in
one 12-month period.20
4. Contentions of the parties, and conclusions
of fact and law thereon
Comparison of the handling of the three accidents of each
driver with the policy and procedure under the Safety Pro-
gram outlined above indicates at first blush that Respondent's
treatment of each basically followed that procedure and was
well within the safety standards of the Program. However, in
view of (1) General Counsel's claim that the Program was
applied strictly "according to the book" in the case of Reed
and Rice, but far more leniently in the case of other drivers
not shown or known to be union adherents, (2) the facts of
Respondent's existing union animus manifested by coercive
statements by supervisors that Respondent might well take
steps to "weed out" or "ease out" union adherents by some
pretexts, and (3) also considering that the transportation in-
dustry has long been recognized by the Board as one in which
an antiunion employer has unusual opportunity to find pre-
texts for elimination of drivers upon the pretext of violation
of any of a multitude of private or governmental regulations
that normally govern operations of truckdnvers,21 I must
examine carefully Respondent's handling of these two men in
comparison with its treatment of accidents of other drivers,
particularly actual practice on the need for reporting acci-
dents, and the effect of the amount of physical damage, or
lack of it in an accident, and actual payment of a claim
therefor by Respondent, on the reporting requirement.
General Counsel adduced uncontradicted testimony of
various drivers, past and present,22 on which I find that from
about 1964 through June 1969, when one Penland, first assis-
tant manager and,then manager at Asheville terminal, on
about eight occasions did not require a driver to sign and send
in a formal accident report under the Safety Program, after
the occurrence had been duly reported to him. In three in-
" He testified credibly that it was 13 feed, 6 inches, high, which was
about 2 feet higher than those he usually drove
" These facts are found from documentary evidence, and credited tes-
timony of Rice, Ray, and Gerald Rogers
10 The chargeable accidents were, backing his unit into an awning over
a door in 1962, sideswipping a parked vehicle on an icy highway in 1964,
and damaging the back door of his trailer while backing into a dock late in
1967 Each of these cases was decided by a Review Board He appealed at
least one to the Board for a second review, and was allowed to present his
arguments to them by telephone, the Board reaffirmed its prior decision
" Houston Cartage Company, Inc., 2 NLRB 1000, 1005, 1006 (1937);
E B Law and Son, 92 NLRB 826, 856, Campbell Coal Company, 112
NLRB 941, 956.
" Arliss A Sluder, Donald R. Brown, Garren Rogers, Alan D Robinson,
Oder A Anders.
stances, there is no explanation why he did not require or
process a written report, but in five others he waived it when
the driver promised or arranged to pay for damage to prop-
erty of others, or the damage to his truck or other company
equipment was repaired in company shops. In these cases, the
damage to property of others varied in dollar amount from
very small to fairly large sums. However, during Penland's
tenure, despite waivers of reports from Donald R. Brown,
Garren Rogers, and Anders on their private settlement of
claims in 1968, he insisted on formal reports on three later
accidents of Brown in 1968 and 1969, where Review Boards
found him chargeable on two, and nonchargeable on one;
from Brown's testimony, it appears the damage in both pre-
ventable accidents was minor in type and extent, although the
monetary damage does not appear. Penland waived a report
on Rogers' August 1968 accident (which his testimony shows
was clearly his fault), when he arranged to pay the damage,
but the manager insisted on a report on serious damage to
company equipment which he drove carelessly a month ear-
lier, and he was charged by a Board on this. While Robinson's
1968 accident report was waived, Penland insisted on one
from him on one early 1969 accident, where a Board charged
him with it. Anders had had an earlier accident in 1955,
where he made out a formal report for an earlier terminal
manager, after the owner of the damaged property com-
plained to Respondent; it appears that Anders had deliber-
ately not reported the accident to his manager as required.
While driver Sluder had two accident reports waived by Pen-
land in 1964 and 1966, Asheville Manager Thomas insisted
on formal reports of two other accidents in 1966 and 1968.
However, all of these drivers, and others who testified," duly
reported accidents in late 1969 and during 1970, which were
processed through Review Boards. I note also from credible
testimony of Donald R. Brown and Sluder, as well as admis-
sions of Ray, that single accidents of each in 1968 and 1966
never were reported, where they first reported the accidents
to Ray, then dispatcher at Asheville; he told Sluder he would
report his accident to the manager, and suggested to Brown
that he settle the damage claim on his accident himself and
not report it, because he lacked only 3 weeks of an accident-
free year to qualify him for a safety award, and Brown took
this suggestion. In both cases, however, the drivers violated
the Program requirement of reporting all accidents person-
ally to the supervisor, in reliance upon action and suggestions
of Ray, who was only another rank-and-file employee (he
voted in the election of 1968), so that at least in the case of
Brown, Respondent cannot be charged with knowledge of an
accident which never came to the attention of the manager
because of connivance between two rank-and-file employees.
I must also appraise all of the above instances in light of
credible testimony of practically all of these drivers, plus that
of Gerald Rogers, Lentz and Ray, that over the years the
drivers and supervisors knew all accidents, regardless of type
and amount of damage involved, must be reported and go
through the Safety Program, under penalty of possible dis-
charge for drivers, and discipline up to discharge for super-
visors, who did not obey the report requirements, and that
terminal managers and other supervisors have no authority
to deviate from this requirement where damage is slight or
the driver pays it himself. It is also quite significant that under
the Safety Program, Director Rogers processes between 250
and 275 accidents a year through Review Boards.24 In light
" Walter Rice, Robert Brown, Robert A Blankenship
" Some indication of an exception to the reporting requirement if there
is no payable damage can be inferred from testimony of present terminal
managers Ray and Lentz that accidents must be reported "if there is damage
done," and that the terminal manager has authority to decide if damage is
FREDRICKSON MOTOR EXPRESS CORP.
of these circumstances, I must conclude that the deviations
from the reporting requirement in no more than 15 accidents
over a period of 3 years in which at least 750 accidents of all
types were reported and processed through the Safety Pro-
gram, where most of the deviations emanated from nonaction
or omissions of one elderly and ill terminal manager at Ashe-
ville," and were sporadic and isolated cases interspersed with
other instances where he enforced the reporting requirement,
and have not been continued by later terminal managers at
Asheville or elsewhere since late 1969, are far from sufficient
to establish a definite pattern at Asheville, much less through-
out the entire company system, of waiving reports of minor
accidents involving little or no damage. Instead, I conclude
that they can only be attributed to personal idiosyncrasies of
a single manager at one terminal in a short period when he
was in ill health, working only part-time and close to final
retirement. Hence, I can view these few deviations, being no
more than 2 percent of all accidents occurring in a 3-year
period, only as exceptions which highlight the normal report-
ing requirement and its continued use, but not as substantial
proof of a general exception thereto. Even if a vague outline
of a pattern of exception could be inferred from so few spo-
radic deviations, it would be far outweighed by testimony
adduced by Respondent showing they could only have oc-
curred secretively and without the knowledge of top manage-
ment concerned about the Safety Program, in light of tes-
timony of top company officials that they knew nothing of
Penland's failure to report these accidents as required, and
the substantial documentary proof adduced by Respondent,
supported by admissions of various drivers that, over the
years before and since the 1968 election, Respondent has
enforced the reporting, review, and charging procedures of
the Program uniformly with regard to all types of driving
accidents, ranging from serious to trivial, discharging drivers,
both prounion and antiunion, for violations of the three-
accident rule and in some instances for two or one accident,
with or without a Review Board, where the circumstances
indicated unusual carelessness or flagrant disregard of duties
in handling of company equipment. 16 Another indication that
done in any case, and testimony of Lentz that he did not require formal
reports from one driver, Arthur A Buck, where Buck paid for the damage
himself However, Lentz does not detail the number or dates of these acci-
dents, and Buck himself does not support Lentz' story The testimony of
both managers on this point is contradicted by the terms of the Safety
Program quoted above, and testimony of Comptroller Joe B Moose, Presi-
dent Fredrickson, and Gerald Rogers. I credit the testimony of the three
officials on this point , because Lentz at another point admits accidents must
be reported , no matter how slight the damage is, which is consistent with
the credible testimony of Rogers, Ray, and Fredrickson that the reason for
not considering amount of damage in deciding the need for report of an
accident and its chargeability is to impress on drivers the continuing need
to do everything in their power at all times to prevent accidents , not just to
have only small or trivial accidents, by teaching and inducing them through
the award and penalty procedures of the Program to learn by their mistakes
and avoid them in future driving, and thus prevent them from falling into
a relaxed or indifferent attitude toward prevention of accidents and handling
of company equipment, which might well apse if they were led to believe
that slight accidents involving small damage would be overlooked. It is
obvious that if this were allowed , dnvers would soon develop an attitude of
indifference in handling of company equipment which would inevitably lead
to serious accidents causing Respondent and others substantial loss
" Penland was apparently a long-time employee of Respondent who
finally retired in June 1969, after a period of poor health in which he was
only able to work as a supervisor part-time
" On this point, I credit admissions of drivers Rice, Reed, and Buck, and
note that, in Respondent's Exhibits R-9 through R-25 attached to the depo-
sition of President Fredrickson, there are at least 14 instances from 1959
into 1970 where accidents involving small and even trivial damage were
processed through Review Boards, and some of them were second or third
accidents which resulted in discharge of dnvers
775
Respondent has not relaxed its insistence on preventive driv-
ing under the Program in recent years lies in credited tes-
timony of officials Ray, Lentz, and Moose, as well as drivers
Garren Rogers, Robinson, Anders, and Reed that: In late
1969, President Fredrickson stressed to all supervisors in a
meeting that the Safety Program and its rules and procedures
must be applied equally to all personnel, regardless of the
advent of the Union, and that in an Asheville drivers' safety
meeting shortly after the election, Manager Thomas, in an-
swer to questions of drivers about operation of the Program,
told all that a driver could be discharged for less than three
accidents in 1 year, depending on the attitude of the man
toward the Company and his handling of his equipment, and
that a single accident might result in discharge if it was
serious and indicated a bad driving attitude.25
There is also some testimony from warehousemen and
dockhands28 indicating that in a few cases in 1969 and 1970,
they were not required by dock foremen or the Asheville
terminal manager to make formal reports of accidents involv-
ing their movement of material-handling equipment, trucks
or trailers in and around the loading dock. However, I do not
consider this substantial proof of a general waiver of the
reporting requirement or the standards as to chargeability of
accidents as to drivers, because the record shows that dock-
hands and warehousemen are not normally covered by the
reporting and awards procedure of the Safety Program, but
have been required to submit reports only in a few instances
of serious damage when driving company equipment; for the
most part they file 0, S. and D reports29 only where damage
to customers' merchandise is involved.
The claim of discriminatory application of the Safety Pro-
gram is further weakened by credited testimony of Ray and
admissions of Rice indicating that union adherent Arnold
Fox was discharged, like Reed and Rice, under the three-
accident rule, and union adherent Warren S. Rathbone either
quit or was discharged for the same reason, all after the
election. Fox had been the subject of a request by Supervisor
Wylie Rice in the fall of 1968 to Reed, then supervisor of Fox,
to make sure the latter worked a full week, which Reed
refused to impose. There is no proof that Fox' union adher-
ence was mentioned by Rice, so that a discriminatory motive
cannot be inferred but only suspected. General Counsel does
not charge discrimination against Fox in his discharge.
Hence, this testimony cannot overcome the substantial
record facts showing that Fox' actual discharge much later
was only another normal application of the company policy
under the Safety Program that three accidents in 1 year in-
dicated an accident-prone driver whose continued employ-
ment was undesirable for that reason. Although there is some
testimony that Former Manager Penland had in the past
indicated animus toward specific drivers suspected of union
action or sympathies, any inference raised thereby of dis-
crimination against union adherents generally is weakened by
the lack of proof that the drivers he mentioned (Moody, Fox,
and James Wolf) were subjected to any discrimination later,
and also by record facts showing Penland did not carry his
animus into action, for he waived two accidents reports for
" I do not credit vague testimony of some of these drivers tending to
indicate that Thomas said discharge depended on "how Respondent felt
toward the man, what type of man he was," for this is an equivocal interpre-
tation rather than clear recollection of what was said, even if credited, it is
in its context just as susceptible of the implication that Respondent was
viewing only a man's attitude toward his equipment and his driving respon-
sibility toward Respondent, as of the implication that his union sentiment
or attitude was being reviewed
" Ronald B Stanfield, Thomas F Robertson, David K Foster, and Lon-
nie E King
11 "Over, short and damage" reports
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
driver Sluder, the second coming in 1968 when he might well
have known of Sluder's prounion sentiments; he waived one
for Donald R. Borwn in mid-1968, allowing him to settle an
accident claim privately. Anders was the beneficiary of single
waivers by Penland and Thomas in 1966 and 1969, but re-
ports were required from him by Ray and Wylie Rice on two
accidents in 1970.
General Counsel attempts to show Respondent had a par-
ticular animosity toward Reed ever since the election, from
his testimony that in the first bargainign session of May 8,
1969, between Respondent and the Union, where Reed was
the only employee member of the union bargaining commit-
tee, President Fredrickson openly told him he must thereafter
refrain from talking to anyone in the terminal when reporting
in or leaving the terminal, and thereafter Manager Ray used
to watch his movements closely when he checked in and
checked out, once cutting short Reed's discussion with other
drivers about an accident by telling him his wife wanted him
at home. While Fredrickson in his deposition does not deny
Reed's story in detail, Comptroller Moose testified that at this
meeting Fredrickson greeted Reed at the outset , and then
secured an agreement from the union agent that Reed would
not be paid by Respondent for any time he spent in bargaining
sessions as a union or employee representative . In addition,
he asked the union agent what Respondent could do about a
driver like Reed who disrupted the work of other employees
by talking to them in the warehouse during their working
hours, and if Respondent could insist that the driver have his
truck loaded and his bills already prepared so that he could
drive on his route as soon as he punched in for work, and the
union agent said if the driver was on the payroll Respondent
could supervise his work in any way it saw fit. Ray denied
categorically any special surveillance of Reed before or after
he went on his delivery runs, explaining that he often went
into the drivers' room when a group of drivers report in, to
make sure they did their paperwork before and after their
runs, and that after each driver finishes signing in and unload-
ing his truck, he reports to Ray who then tells him to leave,
and that he treated Reed in this respect like other drivers. I
credit the testimony of Moose and Ray in this respect, and
make no finding of any special restriction on or surveillance
of Reed before his discharge. I also note that both Reed and
Rice indicated they were fully aware of their rights under the
Safety Program, and the record shows both took full advan-
tage of them, without hindrance from Respondent, in taking
second appeals to the Review Boards on several of their
accidents ; 30 Rice was even allowed to present his arguments
by telephone to a Board on a third appeal in lieu of a personal
appearance before the Board. Rice tried to indicate in tes-
timony that he was denied a right of appeal on the third
J0 Reed's last two accidents were backing accidents Since Respondent
has experienced more of these over the years than any other type, its Manual
specifies in detail why such accident is usually preventable and chargeable,
including the fact that assistance from an outsider in backing a truck does
not excuse the driver Rogers testified that this part of the Manual has often
been stressed to drivers in safety meetings Although Reed 's last accident
involved assistance from a customer 's clerk, and he noted this in his report
of it , Rogers and Fredrickson applied the Manual rule on this point in
determining Reed was chargeable , just as a Board had done on a similar
accident of Sluder in 1968 Even if I were permitted to substitute my
judgment for the rule in the Manual , and give some weight to the fact of
outside assistance to a driver backing his truck , I would be forced to con-
clude here that Reed was nevertheless careless in handling his truck on this
occasion, for the Pet Milk clerk, Smathers, admitted that Reed may already
have hit the Pet Milk dock with his truck before Smathers gave him the stop
signal These facts indicate that Respondent made a normal and nondis-
criminatory application of the rule on backing accidents here, and Reed
knew it, which explains why Reed told Ray on discharge that he had been
expecting it
accident which resulted in his abrupt discharge, because he
had been planning to appeal the Board decision on it. I do not
find any discrimination here, because Rice knew he had 7
days in which to make a second appeal to the Board after
Rogers' letter of May 12, 1970, advising of its first decision,
but he had not done so by the 18th, when he was discharged,
and he did not ask Ray at that time to withhold discharge
action to give him time to appeal.
Finally, General Counsel produces no substantial proof
that Respondent has ever failed to enforce the rule of dis-
charge after three chargeable accidents in 1 year, which is
sufficient to overcome testimony of company officials claim-
ing strict enforcement of the rule. Hence, I can only conclude
on all the pertinent evidence noted above that, notwithstand-
ing occasional aberrations by one or two terminal managers
on the reporting procedure in the past, Respondent has uni-
formly enforced the three-accident rule over the years, in-
cluding the cases of Reed and Rice, without regard to any
factors other than the driving attitude and conduct of em-
ployees involved."
Having considered all the facts and arguments pro and con,
I conclude that all the pertinent facts and circumstances,
when viewed in the light most favorable to the claim of Gen-
eral Counsel, raise at most some suspicion that Respondent
may have been waiting for Reed and Rice to commit enough
driving violations under the Safety Program, so that Re-
spondent could dismiss them on that pretext. But suspicion
is not proof.32 One may suspect that Respondent welcomed
this chance to get rid of both known union adherents, but
neither their union activities nor Respondent's attitude gave
them privileges under the Safety Program greater than those
accorded to other employees, they were still subject to dis-
charge for cause under that Program like any other em-
ployee." I conclude that General Counsel has failed to sustain
his ultimate burden of proof on the record as a whole that
Respondent discharged Reed and Rice because of their union
adherence and activity. I therefore grant Respondent's mo-
tion to dismiss the complaint accordingly.
III THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II, above,
occurring in connection with its operations described in sec-
tion I, above, have a close, intimate, and substantial relation
to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
IV THE REMEDY
I have found that Respondent engaged in acts of coercive
interrogation and general threats of discharge of union adher-
ents in violation of the Act. Although it did not implement
the threats, such remarks in themselves are serious indica-
tions of a disregard of employee rights protected by the Act,
and warrant a broad cease and desist order, which I shall
recommend.
" See Formed Tubes Southern, Inc., 188 NLRB No 3
33 I have carefully considered corollary arguments of General Counsel on
other facts , but make no specific findings or conclusions on them because
such would not alter my ultimate findings and conclusions herein.
33 Republic Cotton Mills, 101 NLRB 1475, 1479, 1480
FREDRICKSON MOTOR EXPRESS CORP
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and
the above-named Union is a labor organization within the
meaning of the Act.
2. By interrogating employees regarding their union senti-
ments and activities, and threatening them with discharge if
they engaged in such activities, Respondent has interfered
with, restrained, and coerced them in the exercise of rights
guaranteed to them by Section 7 of the Act, and has thereby
engaged in unfair labor practices affecting commerce within
the meaning of Section 8(a)(1) of the Act.
3. Respondent has not violated the Act by its discharge and
failure to reinstate James H. Reed and Donnie E. Rice.
Upon the foregoing findings of fact, conclusions of law, and
the entire record in the case, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:J4
ORDER
Respondent, Fredrickson Motor Express Corporation, its
officer, agents, successors, and assigns, shall:
1. Cease and desist from interrogating its employees re-
garding their union sentiments or activities in a manner con-
stituting interference, restraint, or coercion within the mean-
ing of Section 8(a)(1) of the Act, or threatening them with
discharge if they engage in such activities, or in any other
manner interfenng with , restraining , or coercing its em-
ployees in the exercise of any rights guaranteed to them by
Section 7 of the Act.
2. Take the following affirmative action which I find will
effectuate the policies of the Act:
(a) Post at its terminals in Asheville, North Carolina, and
Johnson City, Tennessee, copies of the attached notice
marked "Appendix."" Copies of said notice, on forms pro-
vided by the Regional Director for Region 11, after being
duly signed by Respondent's representative, shall be posted
by it immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places,
" In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, recommendations, and recommended Order herein shall, as
provided in Sec 102 48 of the Rules and Regulations, be adopted by the
Board and become its findings , conclusions , and order, and all objections
thereto shall be deemed waived for all purposes
" In the event that the Board's Order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
777
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Respond-
ent to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for Region 11, in writing,
within 20 days from date of receipt of this Decision, what
steps Respondent has taken to comply herewith."
IT IS FURTHER ORDERED that the complaint herein be dis-
missed insofar as it alleges discriminatory discharges and
refusals of re'nstatement of James H. Reed and Donnie E.
Rice.
" In the event that this recommended Order is adopted by the Board
after exceptions have been filed, notify the Regional Director for Region 11,
in writing, within 20 days from the date of this Order, what steps Respond-
ent has taken to comply herewith
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees regarding
their union sentiments or activities in a manner con-
stituting interference, restraint, or coercion within the
meaning of Section 8(a)(1) of the National Labor Rela-
tions Act, or threaten them with discharge if they engage
in such activities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of any
rights guaranteed to them by Section 7 of the Act.
All our employees are free to become or remain, or refrain
from becoming or remaining, members of any labor organiza-
tion.
FREDRICKSON MOTOR
EXPRESS CORPORATION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced, or
covered by any other material.
Any questions concerning this notice or compliance with
its provision may be directed to the Board's Office; 1624
Wachovia Building, 301 North Main Street, Winston- Salem,
North Carolina 27101, Telephone 919-723-9211, ext. 306.