Freeport Transport, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1975

220 N.L.R.B. 833 (N.L.R.B. 1975)

FREEPORT TRANSPORT, INC. 833
Freeport Transport, Inc. and Robert I. Carr. Case
3-CA-5664
September 29, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
National Labor Relations Act, as amended (29 U.S.C., Sec.
151, et seq.), herein called the Act; and also alleged certain
other conduct in violation of Section 8(a)(1).
Upon the entire record,' including my observation of the
witnesses, and after due consideration of the brief filed on
behalf of General Counsel and Respondent, I make the
following:
FINDINGS AND CONCLUSIONS
On June 23, 1975, Administrative Law Judge Irv-
ing M. Herman issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief, and Respondent filed a
brief in support of the Decision of the Administrative
Law Judge.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
' The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge . It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect . Standard Dry Watt Products, Inc., 91
NLRB 544 (1950), enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
IRVING M. HERMAN, Administrative Law Judge: This
case was tried before me on January 8 and 9, 1975, at
Buffalo , New York. The charge was filed May 8, 1974, by
Robert I. Carr, an individual, and duly served on Respon-
dent the same day. The complaint, issued November 12,
alleged the Charging Party's discharge on or about May 6,
1974, because of his activity on behalf of International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local 538 (herein called the
Union), was in violation of Section 8(a)(1) and (3) of the
1. RESPONDENT'S BUSINESS
The complaint alleges , the answer (as amended at the
hearing) admits, and I find that Respondent is a Pennsyl-
vania corporation with its principal office and place of
business at Freeport, Pennsylvania; that it operates as a
Class I common carrier under Interstate Commerce Com-
mission regulations, providing truck transportation and re-
lated services in parts of the United States 2 and the prov-
inces of Ontario and Quebec in Canada, with terminals
located at Freeport and New Eagle, Pennsylvania, and Ni-
agara Falls, Ontario;3 and that during the year immedi-
ately preceding the issuance of the complaint Respondent
derived gross revenues in excess of $50,000 from the trans-
portation of freight or commodities directly between and
among various States of the United States and between the
United States and Canada.
Respondent nevertheless contends, citing RCA OMS,
Inc. (Greenland), 202 NLRB 228 (1973), that the Board
lacks jurisdiction over its Ontario terminal where the
Charging Party was employed. I find no merit in this con-
tention. Carr, an American citizen residing in Niagara
Falls, New York, was hired at and worked out of the On-
tario terminal with about 20 other drivers, American and
Canadian. Denman, the terminal manager, is in regular
and frequent contact on a daily basis with Respondent's
headquarters in Freeport to coordinate operations, main-
taining a "Watts line" of direct communication for this
purpose, i.e., in the words of Respondent's president, "to
review the most effective way that the work is assigned to
the equipment available and drivers available." All payroll
records are kept in the United States, and the payroll is
transmitted regularly from Freeport via company equip-
ment . American citizens are paid in United States currency
and have deductions made in accordance with American
law, but the wages and fringe benefits of all employees who
work out of the Ontario terminal are different from those
applicable at the United States terminals.
Carr's driving was confined to points within the United
States or between the United States and Canada. Because
he did not possess a Canadian work visa he was not al-
lowed to drive between two Canadian points. About three-
fourths of his driving time was spent in the United States.
As a general rule his trips did not exceed 40 to 45 miles into
i In the interest of clarification, the typewritten transcript of testimony is
hereby corrected
2 Its operating authority extends to 42 States.
3 Respondent president's testimony adverted to an additional terminal at
Frankfort, Indiana, evidently not involved in any organizational effort here
under consideration
220 NLRB No. 125
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Canada as compared with 200 to 250 miles into the United
States . He was under instructions to contact the Freeport
dispatcher to receive his next assignment after dropping off
a load in the United States in the absence of further orders
in his original dispatch. Respondent's decision to discharge
Carr came from its Freeport headquarters.
In RCA OMS, the Board dismissed an IBEW petition to
represent certain employees at five Distant Early Warning
sites located in Greenland. The employer, a subsidiary of
RCA and a Delaware corporation, operated the sites (a
system of radar stations and a communications network
feeding information directly back to NORAD headquar-
ters in Colorado Springs) pursuant to a United States Gov-
ernment security clearance , were hired in and paid from
the United States, and on completion of their jobs were
returned to their original hiring location. The Board held
that "under all the relevant circumstances, particularly the
fact that Greenland is a possession of Denmark and gov-
erned as a county of that country . . . Greenland does not
come with the jurisdiction of the Act." citing Benz v. Com-
pania Naviera Hidalgo, S.A., 353 U.S. 138 (1957).
In my opinion RCA OMS is quite distinguishable. The
Benz case had involved a foreign crew on a foreign ship
registered in a foreign country, and operating under an
agreement made abroad under foreign law, " [t]he only
American connection [being] that the controversy erupted
while the ship was transiently in a United States port and
American labor unions participated in its picketing." 353
U.S. at 142. In RCA, although the employer and employees
were American and the hiring occurred in America, the
employees worked entirely in Greenland and any contro-
versy would occur in Greenland, so that the single element
in Benz that might have provided a basis for jurisdiction
was lacking in RCA. By the same token any resemblance
between RCA and the instant case is purely superficial be-
cause , although Carr was hired in Canada and worked out
of the Canadian terminal , his work was regularly-indeed
mainly-performed in the United States where he resides,
where Respondent's principal place of business is located,
and where the Union whose cause he espoused operates;
his dispatch was constantly coordinated with Freeport
through regular communication with headquarters there;
his pay reflected deductions pursuant to American law;
the decision to discharge him was made in Freeport; and
the predicate for Board involvement here is, allegedly,
Carr's participation in the Union' s organizational cam-
paign-by conduct virtually entirely in the United States-
that included the Pennsylvania terminals.4
It may be that if this case concerned only a petition by
the Union for certification as exclusive bargaining repre-
sentative of all the employees at the Ontario terminal-
even as part of an overall unit of all three terminals-the
Board would lack jurisdiction because of the involvement
of the working conditions of foreign employees, i.e., Cana-
dian citizens . See Windward Shipping (London), Ltd. v.
4 Ultimately the Union excluded the Canadian employees from Its repre-
sentation proceeding in the Pittsburgh Regional Office, and a sister local of
the same International instituted a similar proceeding before the Canada
Labour Relations Board , confined to the Ontario terminal, which it with-
drew in March.
American Radio Assn., 415 U.S. 104 (1974). What is in-
volved here, however, is whether the Act's protection is
available to an American citizen and resident allegedly dis-
charged for participating in an American organizational
campaign which for a time looked also to the organization
of Canadians. If one of the drivers from Freeport or New
Eagle had been discharged for signing a union card, the
Board's jurisdiction could hardly have been questioned.
That Carr's union activity was directed to securing collec-
tive assistance at the Canadian terminal did not remove
him from the Act's protection. His support must be
deemed, for present purposes, to have helped advance the
Union's protected area of operation. Besides , his joining
the Union was protected even insofar as his own cause was
concerned by providing a source of collective assistance
short of exclusive representative status and hence in no
way inconsistent, as far as the instant record shows, with
Canadian law or otherwise likely to produce any adverse
international reaction.
In all these circumstances, I find the American connec-
tion sufficient to establish that Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and thus to warrant attachment of the
Board's jurisdiction to this case. Cf. International
Longshoremen's Local 1416 v. Ariadne Shipping Co., 397
U.S. 195 (1970).
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges , the answer (as amended at the
hearing) admits , and I find that the Union is a labor orga-
nization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Carr worked for Respondent out of its Ontario terminal
for 6 or 7 months around 1969 or 1970 but quit. He re-
turned in October 1973. Respondent's drivers are paid by
the mile but also get overtime pay. Carr testified that when
he was assigned a run he was given no specific instructions
as to what route to take or where to sleep but that he was
supposed to travel "the shortest and quickest way." Ac-
cording to Andrew Smetanick, Respondent's president,
while the general rule is to use the most direct route, the
routing is subject to certain additional specific consider-
ations, including Respondent's operating authority, partic-
ularly as to points of entry to Canada; the varying propor-
tions of its vehicles and the varying character of their loads
which may bar them from certain routes; the need to file
mileage reports in the various States for tax purposes; time
requirements; the ability to maintain contact with the driv-
ers at the known truck stops so as to communicate new
pertinent information or orders, or to have one driver pro-
vide needed assistance to another on the same route; and
the substantially higher fuel costs in Canada. Smetanick
further testified that when a driver receiveds his particular
assignment he is asked if he is familiar with the route, and
if he is not he is given a detailed routing and told the time
he should reach his destination; and that a driver may be
FREEPORT TRANSPORT, INC.
rerouted or redispatched only by a dispatcher, the mainte-
nance superintendent, a terminal manager, or an officer of
the Company. Ontario Terminal Manager Denman testi-
fied that when a driver is hired he is shown the routes he is
to take and to disregard any prior routes he may have fol-
lowed for another employer. He also testified that when a
driver is assigned a run he is given the necessary toll tickets
with instructions as to where to enter and leave the toll
road. Respondent's detailed company rules, which Den-
man testified have been posted on the bulletin board at
least since he became manager over 4 years ago, and which
he tells newly hired drivers to read s specifies, "Failure to
follow routings as designated or instructed" as an infrac-
tion punishable on the first offense by termination of em-
ployment.6 Carr denied ever seeing these rules 7 He testi-
fied, however, that if a driver had a flat tire at Ripley, New
York, he would generally go to a truck station located only
about 3 miles off the route to get the tire fixed "if it was
authorized." Raymond Baker, secretary-treasurer and busi-
ness agent of the Union, testified that during contract ne-
gotiations with Respondent following the Union's certifica-
tion in March 1974 he learned of Respondent's policy of
discharge for going off route; that, although nothing on the
point was put into the contract concluded in August, it was
within the Company's prerogative; that, subsequent to the
Union's certification, Frank Couch, who had been far
more active in the Union's drive than Carr, was suspended
for 3 days without pay for deviating about 20-25 miles
from his route which enabled him to make the trip faster
than by the assigned route, the Union's intercession having
saved him from Respondent's initial purpose to inflict the
ultimate penalty of discharge; and that most of the em-
ployers the Union deals with have designated routes for
their drivers.
The Union instituted its organizational campaign in the
fall of 1973 by holding meetings in the United States to
which the Canadian employees were invited and obtaining
membership card signatures in various Pennsylvania coun-
ties, as well as at the truck stop in Ripley, New York. Nei-
ther Carr nor any other employees from the Ontario termi-
nal attended any of the meetings,8 but Carr signed a card
S Essentially corroborated by Paul Cooper , a driver who had opposed the
Union and who became an owner-operator in March 1974.
6 The list includes 30 other infractions similarly punishable , as well as 41
where termination is provided for the third offense and 21 others so punish-
able only for the fourth offense.
The only rule he admitted being aware of was one imposing a $100 fine
for stealing and offering a $100 reward for information leading to the arrest
of the wrongdoer.
Carr testified on cross-examination as follows-
Q. You have no knowledge if any of the Canadian employees came
to the States to attend Union meetings?
A. No.
Q. Then it is your testimony that you in fact never came into the
States to attend Union meetings; is that not a fact9
A. My...
Q. Is that your testimony?
A. I wish you 'd straighten it out a little bit, sir . I don 't understand.
Q. Have you ever come into the States to attend a Union meeting,
Teamsters Meeting?
A. At anytime in my life , yes, sir.
Q. Did you in 1973 and 1974?
A. Attend the Teamsters Meetings?
835
at Ripley on November 13 and, at the same time, accord-
ing to his testimony, lent four or five other drivers from
Ontario who were "broke" $2 each as a deposit required of
Canadian nationals who signed cards.9 Carr admitted on
cross-examination, however, that he had not been more
"outspoken" for the Union than any other employee and
would not deny "that there were numerous employees in
Canada much more outspoken in reference to the union,"
stating, "I didn't associate that much with Canadian em-
ployees over there." Baker, although not directly handling
the campaign in Ripley, was in overall charge and familiar
with the activists among the employees, but he had never
seen Carr before the instant hearing or had any knowledge,
prior to his discharge, that he had been a union supporter.
On November 8, 1973, Respondent sent the following
letter, over President Smetanick's signature, to its Pennsyl-
vania employees:
Dear Employee:
It has come to my attention that the International
Brotherhood of Teamsters is engaging in a campaign
to have you sign a card appointing the union as your
representative. In view of this action and purpose, I
have decided to state the company's policy so that
there will be no mistake or misunderstanding in
anyone's mind.
I do not feel or believe that this company's employ-
ees want a union, nor that they need a union to get fair
and just treatment. Therefore, I state positively that
the company intends to oppose this union by every
possible and lawful means available to it.
If you are approached by anyone who wishes you to
sign a union card, you are, of course, free to take any
action which you desire with respect to exercising your
right to sign or not to sign a card. While federal law
protects employees' rights to engage in lawful union
activities, the law is also quite clear that employees
have the right to refrain from such activities, and that
a labor organization or its agents who attempt to re-
strain or coerce employees in the exercising of this
right are in violation of federal law.
If anyone is causing you trouble on your job or is
trying to coerce you to sign a card or to join a union
against your will, you should let the company know
about it immediately and we will take steps to see that
the matter is stopped.
It is not uncommon for union organizers to tell you
that signing a card means only that you can vote in an
election later on and that signing a card in itself means
nothing else. If you are told this, do not believe it. The
card is a legal statement that you want the union to
represent you and a union card can be used in such a
way by the Teamsters under federal law that you may
not get a chance to vote in an election.
It is my firm belief that a democratic election, by
secret ballot, conducted by the National Labor Rela-
tions Board where employees are free to vote accord-
Q. Yes
A. No, sir.
9 No explanation has been given for such a requirement, and Business
Agent Baker testified he knew nothing of such a requirement.
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing to their own conscience to what they think is best
for their company, themselves and their family, is the
only fair way to determine whether we should have a
union here at Freeport Transport, Inc.
You should realize , therefore , that signing a card is
a very meaningful thing. It assigns your right of repre-
sentation to the union . You should not sign a card
unless you are willing to accept the consequences and
the obligations of this representation.
Should questions arise in your mind with anything
connected in this matter , please feel free to ask any
management official about it.10
Carr testified that around December, while sitting in his
tractor in the company garage, Paul Cooper, a Canadian
driver, came over with a petition for him to sign, saying it
was to get a company union; that Carr refused, saying he
favored the Teamsters; that Carr later discussed this peti-
tion with Gil Therberg, the licensed mechanic at the Ontar-
io terminal, who said that his (Therberg's) name had bet-
ter not be on it, and Carr replied, "as far as that goes, he
could have put my name on it. I never seen the petition. He
could have put the president' s name on it , as far as that
goes . I never seen it"; that he asked Therberg where
O'Keefe (another driver) was, Therberg said O'Keefe had
been fired for union activities, and Carr replied that he had
been "led to believe that O'Keefe was let go because he
had a bad heart"; that about an hour after Carr got home
that night he received a phone call from Denman charging
him in effect with "accusing one of my drivers of signing
your name to . . . a petition that was against the Teamsters
Union"; that Carr said he had not accused Cooper but
only said that Cooper could have done it, and Denman
said, in effect, "you people may do that over in the states,
but I want you to understand, you do not do that over here
in Canada." 12
Carr further testified that in mid-December the follow-
ing conversation occurred while he was in the dispatch of-
fice:
Mr. Denman said to me, he said, "You signed one of
those union cards, didn't you?" I said, "Yes, I did." he
says, "Bob, you know what you are getting into?" I
says, "Harry, look, all I know, I don't have hospitali-
zation. I don't have any sick pay. I don't get any-
thing like what the Canadian drivers are getting." I
says, "They are getting all the benefits." I said, "They
are dust laughing at us. At least if I go union, I'll end
up having the benefits, the Teamsters benefits." He
says, "Bob, this is not a union barn. As far as I'm
concerned it will never be a union barn," and he says,
"And if you want to work here," he said, "you cannot
become a union member. So make up your mind."
10 The letter was not sent to the Canadian employees, nor was any other
statement of Respondent 's position communicated to them, according to
Respondent 's counsel , because Canadian law provides less latitude to em-
ployers in this regard.
Three other mechanics are employed there but are unlicensed
12 Asked on cross-examination when this conversation occurred, Carr
said he "believe[dl it was in mid -December " Pressed to refresh his recollec-
tion because "the time here is important ," he qualified it to "Between De-
cember and February, approximately "
After some prompting, he also recalled, as part of the
same conversation:
Harry, Mr. Denman had mentioned that Freeport
Transport, Andrew Smetanick owned Lane Leasing,
which is out of Freeport, Pennsylvania. He turned
around and Harry says, "You know, Bob, there's
nothing in the world stopping Andy from turning
around and laying off all those American drivers
down there, except for three or four of the men he
wants to keep, and turning this equipment over to
Lane Leasing and then leasing all this equipment out.
That way they won't have to go union at all. All we
have is the Canadian drivers and non-union men
down there. What would you do then if that hap-
pened?" So I didn't know how to respond to him. I
just gave up on it then. But, he did mention that fact
that Lane Leasing was a possibility of Andy turning
the Freeport terminal over into Lane Leasing and get-
ting rid of all the American drivers except for a few
that he wanted.
Carr then testified to still another conversation with
Denman, as follows:
THE WITNESS: This was on a particular time . I believe
it was on a Saturday. It would have to be on Saturday
morning. Mr. Denman and Mr. Cooper were down at
the Lower Arch Bridge, checking, standard procedure
to go down and check and see which equipment is
down there, as far as trailers and loads and things like
this, in the Government compound at the lower arch
bridge. They were down there, I believe, stopped off
and had breakfast, the way I understood, which they
all do. When they got back, they didn't realize I was
there. Before they got back, Flint 19 or Flintstone is the
way I refer to him, he was in there and checked me
out, as far as checking my logs and reevaluating my
logs to make sure I wasn't out of hours or off hours or
something, if I was off hours or anything. Either Mr.
Denman or Mr. Flint would take and have me make
out a new log to correspond, to allow for hours and
mileage. In other words, if I put down that I ran so
many miles in X number of hours, he would say, "You
couldn't run those many miles in those hours." He
says, "Totally impossible." Well, he would take an ex-
tra log book out from underneath the counter and
have me remake the log again to correspond to his
liking.
Q. Why don't you describe the conversation between
you and him?
A. Anyways he cleared me all off on that, and took
my toll tickets that I had, that I paid for, that I was
supposed to be reimbursed for and added them all
up. He says, "Harry, when he comes back he will
give you the money." I waited for Harry. I was sit-
ting out in the garage at Gil's desk out there, which
is up against his wall, up against the dispatch wall
there. I was sitting there and Cooper and Harry
came back and they were talking. They came back
13 Denman's assistant.
FREEPORT TRANSPORT, INC. 837
from the bridge and they were talking about .. .
their conversation when they got into the
dispatcher's office led up to the fact that Harry
turned around, he told Mr. Cooper, he says, "Well,
you can't word that thing that way. You have to
turn around and record it, that the employees of
Niagara Falls, Ontario Terminal do not want the
union" and he was writing this out, and when I
walked in the office, he was writing this out in long-
hand, and he was sitting over at the secretary's,
Harry, I believe you call her secretary or office girl;
he was sitting at her desk where the typewriter was,
and he was typing this stuff out on a piece of paper.
I didn't see what it is , but the only thing I can as-
sume that it ... .
Q. Just describe what you saw and heard?
A. Just that Mr. Cooper was sitting there at the type-
writer typing out this piece of paper, and when I
walked in, I said , "Harry, where did you get this
new blond-haired secretary?" And everything was
shuffled and they put everything underneath the
blotter and Harry said, "Here's your pay check."
He says, "I'll see you." I went home.
On cross-examination, Carr testified as follows concern-
ing the same incident:
Q. Now, when one comes into the garage, how far
would you say Mr. Gil's desk is to the entrance into
the garage, how many feet; 150 feet?
A. Two doors in the garage, so the drivers come from
the exit, some of the drivers come from the other
end of the garage.
Q. How far would it have been from the point where
you said Mr. Cooper and Mr. Denman came into
where you were sitting behind Mr. Gil's desk?
A. As close . . . with a wall between; I'd say as close
as I am to your Honor, the Judge here.
JUDGE HERMAN: About three feet.
THE WITNEss: Allowing space, about a little bit more.
It could be like from here to the lawyer; I don't
know.
Q. (By Mr. Cabot) Could it be about 150 feet, 200
feet, sir?
A. I don't know.
Q. There are partitions between the desk where you
were sitting, allegedly sitting?
A. Cinder block wall there. I believe a cement, cinder
block.
Q. Do those cinder block walls separate at that point,
where you are sitting and Mr. Denman came in?
A. Yes, sir.
Q. How thick is the cinder block wall?
A. I don't know.
Q. Could you estimate, sir?
A. No, sir. I might say a six inch block. It could be a
12 inch block. 12 inch block, 18 inch block. I have
no recollection . It may be a 2 inch block; I don't
know. 14
Cooper denied that the foregoing incident ever occurred
or that he ever discussed the umon attitudes of any em-
ployees with Demean or even discussed the Union with
Denman . He testified that the antiunion petition had been
drafted on the advice of certain named counsel retained by
him and about four other employees at their own expense
and with no guidance from Respondent, and that he had
never discussed the petition with Carr. On direct examina-
tion he said he did not "really know" whether Therberg
signed the petition "because I didn't get all the signatures,"
but that he thought Therberg had not signed. On cross, he
testified that he had asked Therberg to sign but Therberg
had refused, saying "he signed a union card and wanted
the union." About 40 percent of the employees did not sign
the petition, according to Cooper.
Cooper also testified that about 2 months before Carr's
discharge Carr came up to him and said in effect, "You
know I did work at this fucking place before. It ain't any
fucking better now than it was before. I don't know why I
come back"; that Cooper replied, "The easiest solution for
you, if you don't like it, don't let the door bang you in the
ass on the way out"; and Carr rejoined, "The company
isn't any better now. I will fuck them for everything I can
whenever I do leave." Carr denied any such conversation,
saying he does not use "that kind of language."
Denman denied ever discussing the Union or the peti-
tion with Cooper or Carr or asking any employee to circu-
late an antiunion petition, or discussing Lane Service Com-
pany with Carr. He denied knowing that Cooper was
circulating a petition and testified that he informed Coop-
er, Carr, and other drivers that he was neutral on the union
matter. He also testified to having measured, on the previ-
ous evening with company counsel, the garage area men-
tioned in Can's testimony; that the door leading to
Denman's office, which is entirely enclosed and separated
from the garage proper by an 18-inch concrete wall, is
about 16 feet from Therberg's desk in the garage; and that
the entrance to the building is about 40 feet further away.
On Saturday, March 9, the day of the election, notwith-
standing that the Canadian-based employees had been ex-
cluded from the unit, Carr, who was off from work, drove
to Freeport, apparently to attempt to cast a ballot. He ar-
rived after the polling hours. According to Can, Cecil
Saye, who, despite his prounion attitude, was the company
observer, informed Carr that he was too late; Paul Hind-
man, Respondent's corporate secretary and operations su-
pervisor, added that he could not have voted anyway; Saye
asked why not since Can had signed a union card, and
Hmdman replied that the Company knew he had signed
but that he was ineligible because he worked out of the
Canadian terminal. Hindman testified that he was alone
when Carr arrived, about a half-hour after the polls had
14 Carr also testified on cross-examination that the desk was about 6 feet
from the other side of the wall separating the dispatch office from the ga-
rage proper.
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
closed, and that no one else was present during their brief
conversation in which he simply informed Carr of his ineli-
gibility and the reason therefor; that Carr did not indicate
how he had intended to vote; and that no one had ever
indicated to him that Carr had signed a card for any union,
nor did he have any knowledge prior to the filing of the
instant charge that Carr was interested in any union. The
following Monday , according to Denman , Carr informed
him of his visit to Freeport, without disclosing how he had
intended to vote, and Denman reminded him of his desire
to be neutral and declined to discuss the matter.
Carr admitted on cross-examination that on April 23,
1974, he was suspended for 3 days without pay for having
been too drunk to perform an assignment . He complained
to no one about such punishment . He denied , however,
having been warned by Denman, as Denman testified, that
any further breach of rules would result in his dismissal.15
On the last day of his suspension, a Thursday , Denman
called him and said he had a dispatch for him the next
morning . Carr refused it, saying that he had not worked all
week and would not be available until Monday, April 29.
On the morning of April 29, Carr was dispatched to the
Freeport terminal with two empty trailers for the state in-
spection . He testified that Denman told him to get his trac-
tor fixed,16 and when he arrived he parked his tractor near
the garage doors , shut it off , and went in to see John Wes-
tendorf, the maintenance director ; that Westendorf told
him to put the trailers somewhere else, but that he was
unable to start the tractor and had to be towed to get it
started . '7 He then asked Westendorf to see what was wrong
with it, but Westendorf demurred, according to Carr's di-
rect examination, saying they were all tied up with inspec-
tions and that if it was not critical Carr should get it fixed
at another time . 18 Carr confirmed this on cross , stating,
Mr. Westendorf didn't try to route me any place. Mr.
Westendorf said he didn't have the time and couldn't
fix the tractor at that particular time.
On redirect, however the following emerged:
Q. Did Westendorf give you any instructions as to
where you may or may not take the truck for repair?
A. Mr. Westendorf was very busy, which you could
see and Mr . Westendorf said , "We can't fix the
truck here, Bob. See if you can't get it to your own
terminal and see if they can do something for it up
there."
Westendorf denied telling Carr that they did not have time
to fix the truck.
In any event, the tractor required inspection by April 30,
and it was left there until late afternoon of April 30 while
Carr was lent another tractor to work with pending the
return of his . Parts of 2 days were thus spent inspecting
IS Denman advised Freeport headquarters of the incident by telex mes-
sage.
6 Presumably for the problems appearing infra.
17 Westendorf did not recall the towing but conceded "it could have
been."
18 The engine had been tuned and other engine work done about 15,000
miles earlier ; the normal period between tuneups is about 75 ,000 to 100,000
miles.
Carr's tractor and, in Westendorf's words, making it "road-
worthy." However, nothing was done with the starter, the
engine, the fuel system, or the electrical system affecting
the engine despite Carr's having informed Westendorf of
problems in starting and lack of power. The only repair
work' done was that required by the state inspection.
After completion of the inspection and related repairs,
the truck was returned to Carr who was dispatched to
Newell, West Virginia,19 to pick up a load for Sault Ste.
Marie, Ontario. After making his pickup, Carr testified on
direct examination , "the tractor acted the same way as
when [he] brought the tractor down to Freeport," so he
telephoned the dispatch office at Freeport at about 10:30
p.m. on April 30, a man answered, identifying himself only
as "a mechanic" and saying no one else was there, and,
when Carr explained the trouble, told him to "bring it back
here and we'll fix it in the morning," but that when Carr
voiced doubts as to how they could do that since they had
not fixed it in the previous 2 days the man said, "Well, take
it back up to your own terminal then"; and Carr did so,
admittedly going 140 miles out of the way 20
On cross-examination , Carr's testimony as to this con-
versation was as follows:
Q. Is there any reference on Page 14 of your affidavit
that some mechanic told you to go take the vehicle
that you were driving to the Canadian Terminal?
A. No, sir, not that I see there.
Q. Is there a statement in your affidavit which says, "I
then decided to take the rig to Niagara Falls Termi-
nal to get it fixed." You took it upon .. .
A. Yes.
Q. You took it upon yourself to make the decision?
A. In a form, yes.
JUDGE HERMAN: What do you mean, "in a form."
THE WITNESS: I was down there and they told me I
... they could not fix the vehicle, that they didn't
have time to fix the vehicle. I was stuck out on the
highway with it and at that time I went through two
or three different breakdowns and never received
breakdown time . I'm not going to get stuck out in
the middle of the highway and stay here all night
and not get paid again. I decided to take the truck
to Niagara Falls, Ontario.21
Carr arrived at the Niagara Falls terminal on the morning
of May 1 where, he testified, a mechanic found one of his
fuel filters "full of gunk" and that his starter had been "hot
lined," i.e., some makeshift device had been used to bypass
the ignition switch.
President Smetanick happened to be at the Ontario ter-
19 About 75 miles west of Freeport.
20 Carr admitted that no driver had ever gone as much as 100 miles off
route.
21 Smetanick testified that following Carr's testimony concerning his al-
leged conversation with the Freeport mechanic he spoke via telephone with
each of the seven Freeport mechanics whose timecards indicated that they
had been on duty on the night involved (April 30, though frequently re-
ferred to as May I) as well as with the dispatcher then on duty, that none
indicated any conversation with Carr, that there was no record of any call
from Carr , and that there was no one on duty with authority to redispatch
him to Niagara Falls. Respondent 's counsel , who was with Smetanick
throughout these conversations , verified the substance of Smetanick 's testi-
mony by a statement on the record.
FREEPORT TRANSPORT, INC.
minal at that time for 3 days of meetings with certain cus-
tomers, and , when he learned Carr was there instead of on
his way to Sault Ste. Marie by a totally different route, he
sent for him to report to the dispatch office. According to
Carr, Smetanick asked Carr what he was doing there, and
Carr replied that he could not get the tractor fixed in Free-
port, that Westendorf had said he lacked the time or men
because they were "busy with inspection," and had told
him, "See if the truck won't run right. If it doesn't, take it
down to Niagara Falls terminal and see if they can get it
fixed for you. There must be something minor wrong with
it." Carr testified further on direct examination that Sme-
tanick said he could not believe that Westendorf would
have told Carr to go 140 to 150 miles off route entailing a
substantial additional fuel cost 22 and further complica-
tions,23 to get the truck fixed at Niagara Falls, but Carr
insisted that it had happened, and Smetanick said he would
be fired if it recurred.
Smetanick testified that his conversation with Carr end-
ed with Carr's informing him that he was there at
Westendorf's direction, and that the only reason he did not
fire Carr "on the spot" was that he wanted to check out
Carr's story with Westendorf despite his incredulity that
Westendorf would have suggested such "a very costly way
to attempt to make a repair" which either could have been
done at any truck stop on the way up to Sault Ste. Marie or
was something more than the kind of "running road re-
pair" that was within the Niagara Falls terminal's capacity
at all 24
Smetanick testified that he returned to Freeport on Fri-
day, May 3, and met that weekend with Westendorf who
told him that he had not instructed Carr to go to Niagara
Falls; that he then discussed the matter with Denman by
telephone and reviewed Carr's prior record, including his
3-day suspension and his frequent requests to have his de-
liveries completed by other people, and they agreed to dis-
charge Carr . This was confirmed in general by Denman's
testimony. Smetanick testified he had the earlier 3-day sus-
pension in mind when he made the discharge decision be-
cause it had happened so recently, but that he deemed the
going off route as sufficient in itself to warrant discharge.
He denied knowledge of Carr's union activity or of that of
any employee, saying that as a matter of policy, he made
himself "unavailable" for discussion of such activities.
Denman also denied knowledge of his employees' union
activities.
Meanwhile , on May 1, Carr had asked to have someone
22 Besides the extra mileage, the planned route would have been virtually
entirely in the United States where fuel prices are much lower than in Cana-
da,
23 Like the prevailing fuel shortage and the "far inferior" roads involved
in the rerouting, according to Smetanick.
24 According to Smetanick 's uncontradicted testimony , Respondent em-
ploys 4 mechanics at Niagara Falls, I each at Frankfort and New Eagle, and
22 at Freeport , although , according to Westendorf, only 19 were working at
Freeport during the period here involved . Smetanick also testified that the
Canadian terminal , lacking parts , tools, and staff, is not equipped to make
repairs other than change of tires , lubrication , oil change , and small electri-
cal running repairs , and, in the case of a starter, something very minor like
a loose wire; and that the employees are aware of this because they see
where the work is actually performed . This was generally corroborated by
Denman.
839
else drive his load to Sault Ste. Marie, but Denman re-
quired him to complete the dispatch. He then drove a load
from Sault Ste. Marie in Portsmouth, Ohio, where he
picked up another load for Ontario, arrived with it at Niag-
ara Falls on Saturday, but was unable to clear customs
because of the weekend, so he left it there and brought the
tractor to the terminal.25 On Monday, May 6, Denman
asked Carr into his private office where he discharged him.
According to Denman, with Carr's file on his desk, he
spelled out his accidents, "went right down the line on
what a poor employee he had been," and said that in view
of his two grave infractions in a short period of time he
could be tolerated no longer; Can said he thought he was
being dismissed because Denman had learned of a phone
call to Can from Business Representative Marinelli of the
Canadian Teamsters' local; and Denman denied this, say-
ing he knew nothing of Carr's union activity and that any
such activity had no bearing on his discharge.
Carr's version of the discharge was that Denman told
him he did not "fit in this organization anymore," that he
asked what Denman meant, and Denman said, "You can't
come over here and tell me or my men that they have to go
union," referring to the $2 loans Can testified he had made
at Ripley; that Can said O'Keefe had done the same thing
a few days before he had, and Denman replied, "Yes. You
know where O'Keefe is." Following a lunch recess after
concluding his direct examination, Carr resumed the stand
on direct to testify that Denman had raised Marinelli's
name , accusing Can of talking with him; and to testify
further that Denman had said Carr and O'Keefe were the
two "thorns in [his] side" or the "two biggest [union] trou-
ble makers." Denman denied that O'Keefe's name came up
in that conversation, or in any other business conversation,
and testified without contradiction that O'Keefe had not
been fired but left voluntarily to undergo open heart sur-
gery. Can initially denied that Denman ever opened up his
"portfolio" or "dossier" during the discharge interview or
adverted "at all" to his going off route or to his work being
unsatisfactory. On redirect examination, however, he re-
sponded affirmatively to the question, "Only on the day of
discharge was anything said about going off route?" And
he confirmed this on cross-examination in rebuttal, after
having reiterated his denial on direct, but he hedged on it
on redirect, asserting a memory lapse.
The drivers are obliged to call a terminal when they en-
counter mechanical problems, and if they are closer to
Freeport than to Niagara Falls they are supposed to call
Freeport. Can testified in this connection, however:
Q. And when you called Freeport Terminal, who did
you generally talk to?
A. You got a hold of the Dispatcher first and you
explained your trouble and if it was serious enough,
he'd get a hold of John Westendorf or one of the
top mechanics and explain your trouble to him.
Q. When you had a problem at night, who was the
terminal you could talk to?
A. Niagara Falls Terminal only; Harry.
25 Carr encountered no further mechanical difficulties, but the starter
problem had evidently still not been cured because shortly after his dis-
charge the truck had to be returned to Freeport for such repair.
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. He was there at night?
A. He lives above the terminal.
Q. Who was at Freeport, who was there at night?
A. Freeport Terminal, to my knowledge, only the me-
chanic on duty, I'd say from 10:00 o'clock. I don't
know what hour he comes on. He is there in the
evening.
Yet he stated that his call to Freeport on the night of April
30 accorded with "general procedure." In any event, ac-
cording to Denman's uncontradicted testimony, if the driv-
er calling Freeport is from the Canadian terminal and is
unable to reach someone in authority at Freeport he is
obliged to call Denman who, as Carr stated, is available at
any hour because his apartment is directly over the termi-
nal. Denman so advised Carr in February, shortly after
Carr's involvement in an accident. Depending on the na-
ture of the problem, the driver might be directed to a near-
by truck stop or told to await the arrival of needed parts or
of a mechanic dispatched by the terminal, or of another
tractor to replace the damaged one, and on the rare occa-
sion when no dispatcher is on duty, and the terminal man-
ager of the maintenance superintendent is not available
and no officer can be reached, the driver will be instructed
to get some sleep and call in the following morning.
The complaint was amended at the hearing to add a new
subparagraph (e) to paragraph 6, alleging that Respondent
told Carr that it was opposing his unemployment compen-
sation claim because he had filed the instant charge. A
hearing was held on October 29 in Niagara Falls, New
York, on Can's claim which Respondent opposed on the
ground that the discharge had been for cause, i.e., for going
off route.26 After the conclusion of that hearing, according
to Carr, he asked Denman why Respondent opposed his
claim and Denman replied it was because Carr had filed
the instant charge.21 Denman denied mentioning the filing
of the charge. His testimony as to that conversation was
that Carr said he had been unable to get a job and accused
Denman of not giving him a good recommendation, and
that he replied that he had merely told the truth when any-
one inquired about Carr, and that Carr then repeated that
he thought he had been discharged for his union activity,
which Denman denied.
Carr admitted that his testimony at the unemployment
hearing did not mention that a Freeport mechanic had told
him to go to the Canadian terminal, saying he "was not
asked this question."
B. Concluding Findings
The General Counsel's entire case rests on Carr's credi-
bility. Because I am not satisfied that the confidence thus
reposed is justified, I find that the General Counsel has
26 The transcript of that hearing was referred to the appropriate authority
in Pennsylvania where the claim had been filed and to which Respondent is
subject. A preliminary decision of December 30, allowing the claim, was on
appeal in Pennsylvania as of the date of the instant hearing.l
Carr's testimony also linked Denman's alleged statement concerning
the filing of the charge to Carr's asking Denman why he was giving bad
recommendations to employers to whom he had given Denman's name as a
reference. This testimony was stricken as beyond the scope of the com-
plaint.
failed to sustain his burden of proof. Can's manner on the
witness stand was unimpressive and evasive, and his testi-
mony was frequently evasive and self-contradictory, as
well as generally unconvincing. Hence, although I am not
completely satisfied with the candor of Respondent's wit-
nesses,28 I find that Carr's overall account of the events,
particularly as to the essentials involved, rings sufficiently
less true to defeat his claim.
A meaningful starting point is the alleged linkage of Re-
spondent to the antiunion petition. Carr's testimony would
have it that he just happened to go to the Niagara Falls
terminal on a Saturday morning to get reimbursed for his
toll expenses and so was able to overhear an incriminating
conversation between Denman and Cooper which fortui-
tously had been delayed until they entered the garage.
Numerous flaws in the account render it unbelievable.
First, the determination of the amount due required some
calculation on the part of Flint, Denman's assistant, who
for some unexplained reason could not give Carr the mon-
ey but made him wait for Denman. When Carr then sur-
prised Denman and Cooper in the act of redrafting the
petition, Denman, flustered, handed him his "pay check"
which was evidently all prepared, and Carr went home.
Now, if "pay check" meant the toll money, it does not
appear how it got into Denman's possession or how it bore
an authorized signature since surely Flint, who had com-
puted the amount, had no authority to sign checks. On the
other hand, if "pay check" referred to Carr's regular pay,
then it would appear that Carr went home without protest
although he had not been reimbursed for his toll expenses,
the only reason for his continued presence in the terminal.
Second, when Carr walked into the office, Denman was
rewriting the petition "in longhand," which suddenly trans-
formed into "typing," and just as suddenly shifted Cooper
to the typewriter. Third, when on cross-examination
Respondent's counsel sought to elicit some pertinent de-
tails concerning Carr's ability to overhear the conversation
he had testified to on direct, Carr estimated the distance
between Therberg's desk, where he had been sitting, and
the point where Cooper and Denman had entered the ga-
rage, at about 3 feet or perhaps "a little bit more," but
replied he "d[id no]t know" when asked if it could have
been as much as 200 feet; similarly, he variously estimated
the thickness of the cinderblock wall separating the office
from the garage proper at between 2 inches and 18 inches,
281 am unable, for example, to credit President Smetanick's testimony
that he was not aware of the union tendencies of any of the emloyees (he did
not limit this to Canada) because it was not his policy to discuss union
matters with the men and he "made [himself] unavailable" therefor. In my
opinion, this is entirely belied by the last sentence of his letter of November
8, which is a virtual invitation of such discussion. Nor is credence to be
given to Denman's denial of knowledge of any organizational attempt by
the Teamsters prior to the notice from the Canada Labour Relations Board
on February 4, 1974, of the Canadian local's filing a petition. Since the
Union's petition to the Board initially extended to the Canadian terminal, it
passes belief that Denman would not have been informed thereof by the
Freeport officials. Again, I note the inherent inconsistency between the
clear implication in Cooper's direct examination that he had not solicited
Therberg's signature on the antiunion petition and his testimony on cross-
examination that he had solicited it. I also have in mind Respondent's fail-
ure to supply a promised copy of the transcript of testimony in the unem-
ployment compensation proceeding to support Denman's testimony here
that Carr had there testified that he had only gone 40 or 45 miles off route.
But Respondent 's testimonial lapses do not go to the heart of the case.
FREEPORT TRANSPORT, INC. 841
which latter figure was correct ; and finally , after stating on
direct examination that Therberg's desk was "up against
the dispatch wall," he conceded on cross that the desk was
about 6 feet from that wall.
Carr's alleged conversation with Therberg , also related
to the antiunion petition , likewise taxes credulity , for de-
spite the fact that the conversation supposedly occurred
sometime after O 'Keefe 's cessation of employment Carr
testified that he asked Therberg where O 'Keefe was, as
though he was still employed.
Most telling, however, is the infirmity in the General
Counsel's position in respect to the incident precipitating
Carr's discharge . Carr's direct testimony of his conversa-
tion with Westendorf upon his arrival at Freeport on April
29 made no mention of Westendorf's telling him to take
the truck to the Canadian terminal. Indeed, on cross, Carr
confirmed this, saying, "Mr. Westendorf didn't try to route
me any place." All that he testified Westendorf told him,
again essentially reiterating his direct examination, was
that "he didn't have the time and couldn 't fix the tractor at
that particular time." By contrast, Can testified on direct
that when he arrived at Ontario on May 1 he told Smetan-
ick that Westendorf had told him that if the truck did not
run right he should take it to the Niagara Falls terminal to
see if they could fix it because the trouble "must be some-
thing minor." Somehow a transference occurred thereafter,
with Carr testifying on redirect for the first time that Wes-
tendorf had told him to get his truck fixed at the Canadian
terminal.
Strangely, however, Can never told Smetanick of the
alleged telephonic authorization from the Freeport me-
chanic on the night of April 30, to go to Niagara Falls, on
which authorization he now relies . Moreover, this omission
was consistent with its absence from Carr's statement to
the Board 's investigator . Nor did Can mention such a con-
versation in his testimony at the unemployment compensa-
tion hearing. His expressed reason for this lapse-that he
had not been asked the question-hardly suffices since it
offers no explanation for his failure to provide a relevant
response to Respondent 's contention there of a discharge
for cause. The instant hearing, then, constituted the first
occasion for Carr's shift to this tack. However, he also tes-
tified here that he decided to go to Niagara Falls because
he was "not going to get stuck out in the middle of the
highway and stay here all night and not get paid again."
But whether he took it upon himself to decide or acted at
the suggestion of the alleged mechanic-and I am inclined
to the view that no such call was ever made 29 -such be-
havior was not in keeping with applicable requirements.
Carr himself testified that night calls were to be made only
to Denman . But assuming his proximity to Freeport war-
ranted a call to that terminal instead , and assuming he
spoke with the mechanic , as he testified , he knew or should
have known that the mechanic lacked authority not only to
29 In this connection I deem it unnecessary to rely on Carr's official log
for April 30 which shows him almost in Niagara Falls at the time he suppos-
edly made the call from Newell . Having some doubt on this record as to the
accuracy of the hours reflected by the logs in evidence , I have relied thereon
in only one respect, i.e., for my finding that Carr left Newell for Freeport on
April 30, a matter unaffected by the questions of accuracy raised and which
finds independent corroboration in the record.
reroute him to Niagara Falls but even to reroute him back
to Freeport and that, failing to reach someone with greater
authority in Freeport, which he did not even attempt, he
should have called Denman before undertaking on his own
to travel some 140 miles out of his way. Even if he had had
to make a choice between the two terminals, Freeport
would seem to have made more sense in view of its vastly
greater service capacity. Carr's alleged concern that if they
had not been able to make the necessary repairs in 2 days
the prospect was bleak for the next day ignores the fact
that the inspection period (the reason for the tieup at Free-
port) was due to expire about an hour after his alleged
phone call.
I find the convolutions in Carr's account so complex and
devious as to manifest a cover for another purpose of his. I
believe that Can wanted to get back to Niagara Falls soon-
er than events permitted and chose this way to do so. I find
this evidenced by his request at Niagara Falls on May 1 to
be relieved of the obligation to complete delivery of his
load to Sault Ste. Marie, a request fairly typical of Carr's
practice.
I credit Respondent's evidence, supported by Business
Agent Baker, that going off route was a capital offense,
and Smetanick's further testimony that the Carr episode
was a particularly outrageous example, and the only reason
he did not fire him "on the spot" on May I was the need to
check out Carr's story with Westendorf.30 I also credit
Denman's testimony that he used the discharge interview
to mention Can's failings as an employee over Carr's far
less likely initial testimony that Denman confined himself
to Carr's union activity which Can himself conceded was
not outstanding and which the evidence as a whole estab-
lishes to have been minimal.31 In the first place, Carr subse-
quently changed his testimony to admit that Denman had
indeed mentioned his going off route.32 Secondly, the
union activity to which Carr attributed his status as a
"thorn in [Denman's] side," and which allegedly constitut-
ed the reason he did not "fit in this organization anymore,"
consisted merely of his alleged $2 loans to a few employees
so as to enable them to join the Union which, it must be
presumed, they would have done anyway as soon as they
had the money, to wit, on their next trip, assuming the
existence of such a requirement. Evidently aware that such
activity did not quite make him either the Robert Morris or
the Chaim Salomon of the Freeport Revolution, Can attri-
buted the same activity to O'Keefe, long separated from
Respondent, and on Denman's lips, in reply to Can's men-
tioning the event, placed the words, "Yes. You know where
O'Keefe is." In view, however, of the general belief mani-
fested by Carr's own impression that O'Keefe's departure
30 I specifically discredit Carr's testimony that Smetanick told him at the
time that he would be fired if it happened again . This would have made no
sense at all because , as Smetanick explained, if Westendorf had told Carr to
make the trip Carr would not have been at fault , and surely Smetanick
would not have threatened Carr with discharge for a recurrence at his
supervisor's orders.
Carr's testimony could hardly have been more evasive in leading up to
his concession that he had not attended any union meetings during its re-
cent campaign . Moreover, his testimony that he "didn 't associate that much
with Canadian employees over there" marks him as somewhat less than the
"strong" supporter of the Canadian local and the organizational threat that
the General Counsel's brief calls him
32 And changed it twice again before pleading a loss of memory.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was voluntary and on account of his health, and the ab-
sence of any allegation by the General Counsel regarding
O'Keefe, I credit Denman's uncontradicted testimony that
O'Keefe had quit to undergo open heart surgery, and find
that this statement attributed to Denman by Carr, like
much of Carr's testimony, was pure fabrication. Finally,
the probabilities of the situation compel rejection of Carr's
account. There can be no question that the discharge was
precipitated by Can's going off route. The sole issue is
whether this constituted the real motive or only a pretext
for Respondent's action. In either event it would seem in-
credible that Denman would have failed to mention it in
effecting the discharge. I believe Carr had difficulty work-
ing this out in his mind, and it was his uncertainty as to
which would be the more effective approach rather than
loss of memory that produced all of his testimonial shifts in
this regard.
What this case boils down to is the highly dubious story
of a single individual, with an undistinguished work record
at best, wholly uncorroborated, and unsupported even by
allegations by the General Counsel of unfair labor practic-
es directed to any other employee, including far more ac-
tive unionists , who was discharged almost 2 months after
the Board's certification of the Union he had supported
and the withdrawal of the Canadian petition in which he
had played no role whatever, for conduct strictly pro-
scribed as a capital offense by this Employer as well as the
industry generally, less than 2 weeks after the employee's
suspension over another serious offense as to which he
failed to protest despite the absence of any union activity
in the interim. Of such gossamer are unfair labor practices
not proved. Accordingly, I shall recommend dismissal of
the entire complaint.
CONCLUSIONS OF LAW
1. Freeport Transport, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local 538, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. General Counsel has failed to establish by a prepon-
derance of the credible evidence that Respondent violated
the Act as alleged in the complaint.
RECOMMENDED ORDER 33
Upon the foregoing findings of fact and conclusions of
law, it is recommended that the complaint be dismissed in
its entirety.
33 In the event no exceptions are filed as provided by Sec . 102.46 on the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.