Hi-Way Dispatch, Inc.

National Labor Relations Board - Board Decisions

Jun 21, 1965

153 N.L.R.B. 154 (N.L.R.B. 1965)

154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NOTE.-We will notify any of the above-named employees if presently serving in
the Armed Forces of the United States of their right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948, as amended, after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board's Regional Office, 614
National Newark Building, 744 Broad Street, Newark, New Jersey, Telephone No.
645-3088, if they have any questions concerning this notice or compliance with its
provisions. .
Hi-Way Dispatch , Inc. and Local 135, International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers of
America. Case No. 25-CA-1933. June 21, 1965
DECISION AND ORDER
On January 21, 1965, Trial Examiner Sidney Sherman issued his
Decision in the above-entitled proceeding, finding that the 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 attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed a statement of exceptions to
the Trial Examiner's Decision, and brief in support thereof. The Gen-
eral Counsel filed a brief in support of the Trial Examiner's Decision
and an opposition to Respondent's motion.'
i In its brief to the Board, the Respondent requests the Board to take judicial notice of,
or in the alternative, subpena as evidence a pretrial affidavit of Respondent's President
Bove The Trial Examiner found, in part, that Bove's credibility was impaired by his
repudiation at the hearing, without any explanation, of it statement made in the pretrial
affidavit in question. The affidavit was not introduced into evidence The Respondent
now challenges the credibility findings of the Trial Examiner relating to Bove, contending
that Bove did not repudiate his pretrial affidavit, but that his testimony was in complete
accord with his pretrial affidavit. Respondent thus seeks to reopen the record in connec-
tion with a matter which hardly may be considered to be newly discovered and which it
did not seek to introduce at the hearing. For this reason alone we would deny Respond-
ent's motion.
It appears, moreover, that the Trial Examiner considered the apparent discrepancy be-
tween Bove's testimony and his pretrial affidavit as only one factor in determining whether
or not to credit Bove's testimony. Indeed, another very significant factor relied on by
the Trial Examiner was his observation of Bove's demeanor as a witness.
The demeanor of a witness is a factor of consequence in resolving issues of credibility.
As the Trial Examiner has had the advantage of observing the witness, it is the Board's
longstanding policy to attach great weight to a Trial Examiner's credibility findings inso-
far as they are based on demeanor. Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd. 188 F. 2d 362 (C.A. 3). See also, Wichita Television Corporation, Incorporated,
d/b/a KARD-TV, 122 NLRB 222, enfd. 277 F. 2d 579 (CA. 10), cert. denied 364 US.
871; Baltimore Steam Packet Company, 120 NLRB 1521. Thus, in the instant proceeding,
assuming arguendo that Bove's pretrial affidavit is consistent with his testimony, never-
theless, we would not disturb the credibility resolution of the Trial Examiner inasmuch
as his resolution of this matter was grounded in large part on Bove's demeanor as a
witness. -ichita Television Corporation Incorporated, d/b/a KARD-TV, supra; Balti-
more Steam Packet Company, supra. Accordingly, on this separate basis, as well, we deny
Respondent's request to take judicial notice of or to subpena into evidence Bove's pretrial
affidavit
153 NLRB No. 22.
HI-WAY DISPATCH, INC. 155
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, 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 Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner and orders that
Respondent, Hi-Way Dispatch, Inc., its officers, agents, successors, and
assigns, shall take the action set forth in the Trial Examiner's Recom-
mended Order.
TRIAL EXAMINER'S DECISION
The original charge herein was served upon Respondent on April 4, 1964,1 the
complaint issued on June 10, and the case was heard before Trial Examiner Sidney
Sherman on August 4 2 and October 29. The issue litigated was whether Respondent
violated Section 8(a) (3) and (1) of the Act by laying off 10 drivers on February 29.
After the hearing, briefs were filed by Respondent and the General Counsel. There
was also filed after the hearing, pursuant to my request ,3 a stipulation by the parties .4
Upon consideration of the entire record, and upon my observation of the witnesses,
I adopt the following findings and conclusions:
I. THE BUSINESS OF RESPONDENT
Hi-Way Dispatch, Inc., hereinafter called Respondent , is a corporation and is
engaged at its headquarters in Marion , Indiana, in the business of hauling freight by
motor carrier . During the year preceding the issuance of the complaint , Respondent
received more than $ 50.000 for transporting goods across State lines.
Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 135, International Brotherhood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America , hereinafter called the Union , is a labor organization within
the meaning of the Act
III. UNFAIR LABOR PRACTICES
The complaint alleges that Respondent, on February 29, violated Section 8(a)(3)
and (1) of the Act by laying off 10 of its drivers because of their union or concerted
activity. The answer denies this charge
'All events hereinafter related occurred in 1964 , unless otherwise stated.
2 After hearing part of the General Counsel ' s case on August 4, I ordered further pro-
ceedings stayed to afford the Respondent and the Union an opportunity to resolve the issue
before me through the grievance proceduie in their contract Upon appeal by the General
Counsel, the foregoing order was set aside by the Board and the case remanded to me.
Pursuant to this remand , the taking of testimony was completed on October 29
' In a letter of December 22, which is hereby received in evidence as Trial Examiner's
Exhibit No. 2
4 That stipulation , together with the letter of transmittal , Is hereby received in evidence
as Trial Examiner 's Exhibit No. 3
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Sequence of events
Respondent is engaged at Marion , Indiana, in the business of hauling freight by
motor carrier . Its principal shipper is the Foster -Forbes Glass Co., also located in
Marion, which includes among its customers breweries in Chicago and Milwaukee.
At all times here relevant, up to February 29, Respondent operated 20 over-the-
road tractors . Two of these were owned by their drivers One of the others was
owned by Respondent , nine were owned in whole or in part by Anthony Bove,
Respondent's president , and the balance were owned by other persons . As to the 18
tractors not owned by their drivers , Respondent or Bove was required on March 1 of
each year to make an initial cash outlay of $275 for license plates for each tractor,
for which they were subsequently reimbursed in those cases where the tractor was
owned by a third party , out of any profits earned 5 from the operation of the tractor.
Since, at least, 1961, Respondent has had continuous contractual relations with the
Union , in the form of (1) a main contract , consisting of a so-called Central States
Area Agreement negotiated by the Central States Drivers' Council , representing the
Union, and by an employer association , representing Respondent , and (2 ) an adden-
dum or supplement to the foregoing , ' which is significant heie only because of certain
provisions herein providing for two alternative methods of computing a driver's pay-
namely, percentage of gross revenue from freight hauled by the driver, and the driver's
miles and hours , whichever is higher. Under this addendum , the drivers are paid in
the first instance on the basis of a percentage of gross revenue , but, if at any time
they belieNe that their compensation for the immediately preceding 30-day period
would have been higher , if computed on the basis of miles and hours, they are entitled
to file a claim and recover the difference, if any
It appears from the record that dissatisfaction developed among the drivers over
the administration of the provisions of the addendum , and that they believed that it
would be to their advantage to eliminate the foregoing option and have their compen-
sation computed on a straight miles-and-hours basis. ? This matter was discussed at
several union meetings in January and February At the first of these meetings, on
January 18 , the majority of the drivers voted for elimination of the addendum and
adoption of a straight miles-and-hours basis of compensation . At that meeting a
"strike vote " was also taken , the significance of which will be discussed later. At a
meeting on February 17, the majority of the drivers again voted against the adden-
dum, and 17 of Respondent 's 20 drivers at that meeting signed a "blanket " grievance,
reading as follows:
We, the undersigned drivers of Hi Way Dispatch , feel that we are being deprived
of the 30-day provision of the Addendum and request to be taken off the Adden-
dum and to go back to miles and hours provisions of the Road contract.
In addition , four of the drivers , at the same time, signed individual grievances
alleging that , when they attempted to turn in accurate records of their miles and hours
on a particular trip so that they might take advantage of the miles -and-hours option in
the addendum , they were threatened with discharge by Mason, Respondent 's general
manager , and Bove, Respondent 's president . These grievances were presented to
Bove within the next few days and rejected by him. They were then appealed,
pursuant to the contractual grievance procedure , to a joint labor-management
committee.
During February , Patrick, the Union's business agent, also had several discussions
with Bove , in which Patrick urged, without avail, a contractual rescission of the
addendum and substitution therefor of the so-called Krevda rider, which called for
payment on a straight miles-and-hours basis.
On February 29, on the eve of the new motor vehicle registration period, Respond-
ent laid off 10 of its drivers in inverse order of seniority, and did not renew the regis-
trations of the vehicles operated by them. At the same time Respondent notified
Foster-Forbes , its principal customer, of this layoff and that it would have to curtail
its services to Foster-Forbes accordingly.
On March 10 the joint grievance committee , referred to above , denied the drivers'
request for elimination of the addendum , but it did instruct Respondent to "live up to
See Trial Examiner 's Exhibit No. 3.
Hereinafter called the addendum.
7 The reason for this belief is not entirely clear from the record . It may be inferred,
however, that the drivers felt that a miles-and-hours basis would generally be more favor-
able to them , and that the existing provision for filing a claim for the difference with
respect to each 30-day period was unworkable , since it required the driver to keep accurate
records of his miles and hours to support his claim , and since Respondent was frustrating
the efforts of the drivers to maintain such records
HI-WAY DISPATCH, INC. 157
the ... Addendum in its entirety," and, in effect, enjoined both the Respondent and
the drivers to conform to the regulations of the Interstate Commerce Commission.8
On March 30 Respondent began to recall the laid-off drivers in order of seniority,
the last one being recalled on May 3.
B Discussion
The General Counsel contends that the drivers were laid off in reprisal for their
prosecution of the February 17 grievances attacking the addendum, and that, as such
grievance action was protected, concerted conduct, such layoffs were unlawful. In
support of this contention, there was adduced the testimony next set forth.
Freeman, one of the laid-off drivers, testified that a few days after the February 17
meeting (when the grievances about the addendum were signed by the drivers), he
and two other drivers were discussing with Respondent's president, Bove, and its
general manager, Mason, the drivers' opposition to the addendum, and that Bove
stated that if the drivers wanted to change the Respondent's method of operation "he
would have to lay some of them off." Bove denied that he had made such a remark.
On the basis of his demeanor, as well as certain other aspects of Bove's testimony,
discussed below, which reflected on his credibility, I credit Freeman .9
Hobbs, the Union's steward for the drivers, testified that, when he presented the
"blanket" grievance to Bove,10 he remarked that the drivers were trying to run his
business and that "if the sons-of-bitches wanted to play games, we could both play
games " Bove's denial of this was rather equivocal 11 In any event, on the basis of
demeanor considerations, as well as other circumstances adversely affecting Bove's
credibility,'2 I credit Hobbs.
At the hearing, Mason admitted that, in discussing with him the blanket grievance
about the addendum, Bove declared that adoption of a straight miles-an-hour basis
of compensation might necessitate some change in Respondent's operations.
There was also uncontradicted testimony by Patrick, which was corroborated by
DeBonis, one of the laid-off drivers, that on April 13, when 7 of the 10 drivers were
still in layoff status, Patrick presented to Bove a grievance about another matter, and
that Bove stated, "The only way you are going to get these men back to work is for
you to back off," to which Patrick rejoined that his job was to enforce the Union's
contracts and he "was not about to back off." Bove not only failed to contradict the
foregoing testimony but also offered no explanation of his remark, the clear implica-
tion whereof was that Bove would not recall the seven drivers who were still laid off,
unless Patrick showed less zeal in prosecuting grievances for alleged contract
violations.
8 Presumably, the grievance committee here had reference to those regulations requiring
that accurate trip records be kept.
9 At the hearing, Mason was not asked about this incident although he made two ap-
pearances on the stand, first as a witness for General Counsel and later as a witness for
Respondent In its brief, Respondent points to the failure of the General Counsel to
examine Mason on this point, but fails to explain its own failure to do so While Mason
was no longer in Respondent's employ when he testified, his testimony was in the main
favorable to Respondent, even to the extent of offering a patently untenable explanation
for the February 29 layoffs. (See discussion of this below.) Under the circumstances, I
do not believe that any inference adverse to the General Counsel is warranted by his
failure to examine Mason about the Freeman episode.
Respondent also cites the failure of the General Counsel to identify, or call as witnesses,
the two other drivers referred to in Freeman's testimony. I have given due weight to this
circumstance in making my credibility finding here.
11 This incident occurred a few days after February 17.
11 He merely answered in the negative when Respondent's counsel asked him whether he
recalled talking with Hobbs "about the layoffs." However, Hobbs' foregoing testimony did
not refer to any discussion of layoffs but merely imputed to Bove a vague threat of
reprisal against the drivers if they persisted in their grievance over the addendum Ac-
cordingly, Bove's foregoing denial of any discussion of layoffs with Hobbs does not neces-
sarily constitute a denial of such threat.
12 Among other matters, Bove's credibility was impaired by his repudiation at the hear-
ing, without any explanation, of a statement in his pretrial affidavit to the effect that by
February 25, he had already decided to lay off the drivers and that on that date he called
a meeting of the drivers to inform them of that decision. (In his testimony he denied
that that was the purpose of the meeting or that he reached the layoff decision before
February 28.)
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It appears from the foregoing credited testimony that Bove was perturbed over the
drivers' opposition to the addendum (as well as Patrick's militancy with regard to
grievances, generally), and indicated in his discussions on that subject with Hobbs and
Freeman that he would visit reprisals on the drivers if they persisted in such opposi-
tion, expressly warning Freeman that such reprisals would take the form of the layoff
of some of the drivers. The foregoing would seem to suffice to establish a prima facie
case that the layoffs were in reprisal for the prosecution of the grievances over the
addendum.
Respondent contends that the layoffs were due, not to the prosecution of the griev-
ances, but rather to its desire to postpone a substantial 13 cash outlay for new license
plates at a time when it faced the economic drain and uncertainties of a strike.
Respondent here relies on Betts Cadillac 14 and related cases where the Board held
that an employer need not play the role of a "sitting duck" in the face of an imminent
strike, but may take action to reduce his vulnerability to a strike, even if that involves
a partial or complete shutdown of his plant. Thus, he may suspend operations if he
cannot continue to operate without incurring the risk of spoilage of materials, in the
event of a strike,'5 or he may shut down to avoid incurring obligations to customers
which he will be unable to discharge in case of a strike.16
These cases require proof that the employer would have suffered some special
economic disadvantage, or aggravated the disruptive effect of the strike, had he con-
tinued to operate up to the moment the strike began, and that he curtailed his opera-
tions to prevent such strike damage.
Even if it be assumed that the making of a cash outlay of about $2,500 on the eve
of an anticipated strike constituted special damage of the sort contemplated by Betts
Cadillac, the record preponderates against Respondent's contention that it acted
because of the fear of a strike, rather than because of prosecution of the grievances
over the addendum.
I do not doubt that late in February talk of a strike came to Respondent's attention
At their January 18 meeting, the drivers had voted to strike in support of their demand
for elimination of the addendum provisions governing their method of compensation.
Union Business Agent Patrick attempted to minimize the significance of this action,
testifying that it was a vote to strike only if it was ascertained by him that the adden-
dum was not legally binding on the drivers and that they were free to demand a
straight miles-and-hours provision, and then, only if Respondent refused to agree to
such a provision. Patrick testified further that he subsequently ascertained from the
Union's president that the addendum was legally binding, and he so advised the
drivers about February 1, thereby, in effect, nullifying the strike vote.17 Be that as
18 The amount involved was $275 for each of the nine tractors or a total of $2,475.
The 10th tractor was owned by its operator, who paid his own registration fee, but who
was, nevertheless, included in the layoff because of the seniority provisions of the contract
governing layoffs.
In explaining why the layoff action was limited to half the drivers, Bove testified that
the size of the layoff was geared to'the ability of Respondent's principal customer, Foster-
Forbes, to find substitute carriers in the Marion area, that, while such substitutes were
available for points between Marion and Chicago, none was available for the Milwaukee
run, as Respondent was the only local carrier licensed for that run, and that Respondent
deemed 10 drivers sufficient to handle Foster-Forbes' Milwaukee freight. (While this
testimony explains the size of the layoff, it does not necessarily shed any light on the
motivation therefor. Consideration of the needs of Foster-Forbes would presumably have
been uppermost in Bove's mind, whether the layoff was due to the reasons alleged by
him or to those alleged by the General. Counsel )
14 Betts Cadillac Olds, Inc., et al, 96 NLRB 2'68.
15 Duluth Bottling Association, at al., 48 NLRB 1335.
1s Bette Cadillac Olds, Inc., supra.
17 There was also some evidence that under the Union's procedures no strike action
could be taken on the basis of the January 18 vote, alone, but that it was necessary, in
addition, that there be a second strike vote, and that the strike be sanctioned by higher
union authority, including the president of the Union, and there was conflicting testimony
as to whether a second strike vote was, in fact, taken at the February 17 meeting. In
view of my findings in the text, below, I do not deem it necessary to resolve this conflict,
but will assume for the purpose of this Decision that there was such a second strike vote.
While Patrick testified that the necessary strike sanction was not forthcoming, there is
also no evidence that Bove was aware that internal union procedures required such sanc-
tion or that it had been refused. -Accordingly, in reaching the ultimate result herein, I do
not rely on the alleged limited effect of any strike vote taken.
HI-WAY DISPATCH, INC. 159
it may, I am satisfied that talk of a strike among the drivers did not die down at that
time but persisted thereafter, and that such talk was overheard by Respondent's presi-
dent, Bove, and its general manager, Mason, as well as certain representatives of
Foster-Forbes, Respondent's principal customer. However, notwithstanding that
he had several meetings with Patrick during January and February about the elimina-
tion of the addendum, Bove admittedly made no effort to verify these strike rumors.
He did testify that at one of these meetings, about February 23, when he referred to a
threat of a strike, Patrick warned him that if the addendum dispute was not settled
there would be a strike. However, Patiick's version of this meeting omits any refer-
ence either by Bove or Patrick to the possibility of a strike, and Mason corroborated
Patrick as to the absence of any reference to a strike on this occasion by either Bove
or Patrick.18 Accordingly, I find that while Respondent overheard talk of a strike
among the drivers, it made no effort to determine from the Union, itself, whether any
strike was in fact planned, nor did it even apprise the Union that it was aware of such
talk, or otherwise give the Union an opportunity to disavow any intention to strike.
Accordingly, whether or not Respondent, in good faith, believed that a strike was
imminent, it is apparent that it was not greatly concerned on that score. It is difficult
to square such lack of concern with the contention that it was the imminence of a
strike which dictated Respondent's decision to take such a drastic step as the suspen-
sion of half its operations. On the other hand, Respondent's apparent indifference
to the strike rumors prior to the layoffs lends credence to the General Counsel's view
that the decision to lay off the drivers was reached without reference to the prospect
of a strike, and solely as a measure of reprisal against the drivers for prosecuting the
February 17 grievances
There are several other matters which reflect on the sincerity of Respondent's con-
tention that the layoffs were due to the fear of a strike. Not the least of these is the
fact that this contention was apparently an afterthought adopted to meet the exigencies
of the trial.
Thus, it was shown at the hearing that on April 3, after the instant charge was filed,
Bove wrote the Board a letter, in which the layoffs are explained as follows
the only outbound tonnage of this Company originates at Foster-Forbes
Glass Co., Marion, Indiana, destined to points in Wisconsin, Illinois and Michi-
gan, principally. Volume from this Company decreased to the point where it
was impossible to retain all the drivers, including those named in the complaint,
and a reduction was necessary, because of lack of tonnage By reason of the
foregoing, the ten men named in the complaint were laid off, only because of
lack of tonnage.
When confronted with this letter, Bove attempted to reconcile it with his position
at the hearing that the layoffs were due to the threat of a strike, by asserting that the
"lack of tonnage was ... due to the fact that there was a threat of a strike," and that
it was this factor, in addition to his desire to save the outlay for license plates, in the
face of a strike threat, that prompted the layoffs. However, it was stipulated that
Respondent's volume of business was substantially the same for the months of Janu-
ary and February, and there was no credible evidence of any ascertainable decline
in business at any time before the layoff decision was assertedly made.'°
Moreover, when Bove was later recalled to the stand, he attributed his layoff deci-
sion solely to his desire to avoid putting out the money for license plates for at least
part of the trucks, in the face of an impending strike, and no further reference was
made by him in this connection to any actual or anticipated withholding of patronage
by Foster-Forbes or any other customer.20 And, in its brief, Respondent cites as the
18 All witnesses agreed only that in this conversation Bove mentioned the desirability
of settling the Union's dispute with Respondent before March 1, because the new registra-
tion fees would then be due.
19 That decision was asserted by Bove and Mason to have been made about noon on
February 28. While Mason testified (see next footnote) that there was a sharp decline
on February 28, the extent thereof could not have been deterinined until late in the after-
noon of that day. Moreover, for reasons stated below, I do not credit Mason's testimony
as to the decline in orders, nor is it believable, in any event, that Respondent would take
such a drastic step as a 50-percent curtailment of its operations on the basis of a drop in
orders on a single day.
20 Mason, nevertheless, made an inept effort to support Bove's initial position that the
layoffs were involuntary, and were due to actual or anticipated loss of business, as a
result of the threatened strike. In this connection, he asserted that during February he
ascertained that Foster-Forbes had actually diverted some of its business to other truckers.
However, Foster-Forbes' representative at the hearing credibly denied that there was any
such diversion and Mason himself, admitted that there was no actual decline in Respond-
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reason for the layoffs, only Bove's alleged desire to avoid the outlay for license plates,
in view of the strike threat. It is thus apparent that, presumably recognizing the
absence of any evidentiary basis therefor, Respondent has finally abandoned its initial
position as to the reason for the layoffs, shifting from an explanation that the layoffs
were forced upon Respondent by an alleged decline in business to an assertion that
they were a precaution voluntarily taken by Respondent to conserve cash during an
anticipated strike.
Further light is shed on Respondent's motivation by the events leading up to the
recall of the drivers. On March 23 Bove called Foster-Forbes and appealed for more
business, asserting that he would otherwise have to lay off more men In response to
this appeal, Foster-Forbes gradually stepped up Respondent's share of Foster-Forbes'
freight until it returned to its former level, and Respondent, on March 30, began to
recall the laid-off employees as they were needed. There was no contradiction of
Patrick's testimony, and I find that in the meantime, on March 25, in connection with
a dispute with Bove over a matter not here relevant, he threatened to call a strike of
Respondent's drivers.21
When asked at the hearing whether he was not still apprehensive of a strike when
he began to recall the drivers, Bove answered that he no longer feared a strike because
he had learned by that time that the addendum could not legally be elimmated.22
Bove acknowledged, however, that this circumstance did not preclude the possibility
of a strike, and that the Union had given him no assurance that it would not strike 23
When he was then asked, in effect, why, in the absence of any apparent change in the
Union's attitude, he rescinded the layoffs, he merely remained mute.
There is thus presented a choice between (1) the General Counsel's contention
that the layoffs were in reprisal for the drivers' resort to the grievance procedure
to eliminate the addendum, which is buttressed, inter alia, by the credited testimony
recited above concerning Bove's adverse reaction when the grievance was presented
to him and his threat of reprisals therefor, as well as his threat about the same time
to lay off some of the drivers if they persisted in their opposition to the addendum,
and (2) Respondent's contention that the layoffs were due to its desire to mitigate
the effects of an anticipated strike, which contention was advanced only after it
became apparent at the hearing that its pretrial defense of an involuntary layoff was
untenable, and which contention is further rendered suspect by Bove's inability to
explain why, if he laid the drivers off because of fear of a strike, he began to recall
them a month later, even though he not only had no intervening assurance from the
Union that there would be no strike, but had in fact, only 5 daps before, received from
the Union the first direct threat of a strike.
Under all the circumstances, I deem the General Counsel's explanation for the
layoff to be more cogent than Respondent's, and find that the layoffs were not moti-
vated by a desire to conserve cash in the face of a strike, but were designed rather to
coerce the drivers into abandoning their grievance over the addendum, and that it was
only after Respondent ascertained that the grievance had been finally rejected by the
grievance committee that Respondent ielented and took steps to recover its former
patronage , and to recall the drivers.24
ent's overall business volume until February 28, when , according to him, there was a
50-percent drop in orders . Mason then attempted to attribute the layoff decision to this
sudden , sharp decline in orders on the 28th , testifying that the decision was not made
until about noon on that date, but, when pressed to explain how it was possible to deter-
mine by noon -time what the intake of orders would be for the entire day, he was at a
loss for an answer.
21 Bove disputed only that this was the first strike threat by Patrick.
22 As noted above, the blanket grievance seeking elimination of the addendum was rejected
by the grievance committee on March 10.
23 On March 14 Patrick assured Bove only that he had no present intention of striking,
and that he would give 48 hours' advance notice of any strike action
22 As a corollary to the above findings, I find that the timing of the layoffs, on the eve
of the new registration date, was dictated not by Respondent's alleged desire to conserve
cash in the face of a strike, but rather by its desire to conserve cash at a time when it
was voluntarily curtailing its operations , and preparing to forego any profits , for as long
as was necessary to achieve its coercive purpose. Thus , the February 29 date was an
opportune one for two reasons: ( 1) the blanket grievance was then pending before the
grievance committee , and (2 ) a layoff on that date postponed the need for a cash outlay
of nearly $2,500.
In view of the foregoing findings that the layoffs were not due to fear of a strike, there
is, of course, no need to determine whether the cost of the license plates was the sort of
special damage contemplated by Betts Cadillac, supra.
HI-WAY DISPATCH, INC.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
161
The activities of the Respondent Employer set forth in section III, above, occur-
ring in connection with the operations of the Respondent described in section 1, 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 com-
merce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent Employer has engaged in certain unfair labor
practices, it will be recommended that Respondent be ordered to cease and desist
therefrom, and take certain affirmative action.
Having found that the Respondent discriminatorily laid off 10 of its drivers on
February 29, 1964, it will be recommended that Respondent make them whole for any
loss of earnings they may have suffered by reason of the discrimination against them,
by payment to them of a sum of money equal to that which they normally would have
earned from February 29 to the date of Respondent's offer of reinstatement. Back-
pay will be computed in the manner established by the Board in F. JV. Woolworth
Company, 90 NLRB 289, with interest as directed by the Board in Isis Plumbing &
Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce and the Union is a labor
organization, all within the meaning of the Act
2. By discriminating in regard to the hire and tenure of employment of 10 of its
drivers, thereby discouraging membership in the Union, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a)(3)
of the Act.
3 By interfering with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of facts and conclusions of law, and upon
the entire record, and pursuant to Section 10(c) of the National Labor Relations
Act, as amended, I hereby recommend that Respondent, Hi-Way Dispatch, Inc,
Marion, Indiana, its officers, agents, successors, and assigns, shall.
1. Cease and desist from:
(a) Discouraging membership in any labor organization of its employees, or other
concerted action by its employees for their mutual aid or protection, by discriminating
in regard to their hire, tenure, or any other terms or conditions of employment.
(b) In any other manner, interfering with, restraining, or coercing its employees in
the exercise of their right to self-organization, to form, join, or assist Local 135,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, to bargain collectively through representa-
tives of their own choosing, to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain from any or all
such activities.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Make whole the employees listed in attached Appendix A, in the manner set
forth in the section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Recommended Order.
(c) Post at its headquarters in Marion, Indiana, copies of the attached notice
marked "Appendix A." 25 Copies of such notice, to be furnished by the Regional
Director for Region 25, shall, after being duly signed by an authorized representative
of Respondent, be posted immediately upon receipt thereof, and be maintained by it
15 If this Recommended Order is adopted by the Board, the words "a Decision and Order"
shall be substituted for the words "the Recommended Order of a Trial Examiner" in the
notice If the Board's Order is enforced by a decree of a United States Court of Appeals,
the notice will be further amended by the substitution of the words "a Decree of the United
States Court of •Appeals ,' Enforcing an Order" for the words "a Decision and Order".
796-027-66-vol. 153-12
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for a period of 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 25, in writing, within 20 days from
the receipt of this Decision, as to what steps the Respondent has taken to comply
herewith.2°
26 If this Recommended Order is adopted by the Board , this provision shall be modified
to read: "Notify said Regional Director, in writing, within 10 days from the date of this
Order, as to what steps Respondent has taken to comply herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in Local 135, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any
other labor organization of our employees, or discourage our employees from
engaging in concerted activities for their mutual aid or protection, by discriminat-
ing in regard to hire, tenure of employment, or any term or condition of employ-
ment of any of our employees.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to join or assist the
aforesaid union or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
WE WILL make the employees listed below whole for any loss of pay suffered
as a result of the discrimination against them.
Charles Belcher James B. Grosswiler
Robert Bryan Richard McIntire
Anthony DeBonis Lawrence Shanks
Bobby Dixon Alvin M. Walker
Charles Freeman Robert Whelchel
HI-WAY DISPATCH, INC.,
Employer.
Dated------------------- By-----------------------------------------_-(Representative) (Title)
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.
Employees may communicate directly with the Board's Regional Office, 614 ISTA
Center, 150 West Market Street, Indianapolis, Indiana, Telephone No. Melrose 3-
8921, if they have any question concerning this notice or compliance with its
provisions.
Carlson Furniture Industries , Inc. and United Furniture Work-
ers of America and Local 886 of the International Union, Con-
federated Industrial Workers of America, Party in Interest.
Case No. 21-CA-5996. June 21, 1965
DECISION AND ORDER
On February 24, 1965, Trial Examiner William E. Spencer issued
his Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices and
153 NLRB No. 24.