Hiller Trading Corp.

National Labor Relations Board - Board Decisions

Sep 26, 1977

232 N.L.R.B. 358 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hiller Trading Corporation and International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Teamsters Steel Haulers'
Local 800. Case 6-CA-9535
September 26, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On April 18, 1977, Administrative Law Judge John
F. Corbley issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and the General Counsel subsequently filed a motion
to reopen the record and to amend the recommended
Order of the Administrative Law Judge.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
While the Administrative Law Judge properly
ordered that Respondent revoke its unlawful dis-
charge of employee McCully, we find that he failed
to adequately define McCully's employees status and
related rights as of the date of his Decision. Since we
find that McCully, upon application, would have
been entitled to reinstatement as of the time of his
unlawful discharge, we shall amend the Administra-
tive Law Judge's recommended Order and notice to
reflect that determination. We shall also order that
McCully be made whole for any loss of pay he may
suffer during the period commencing 5 days after his
application for reinstatement.3 Any backpay shall be
computed in accordance with F. W. Woolworth
Company, 90 NLRB 289 (1950), with interest to be
computed in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962), and Florida Steel
Corporation.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Hiller Trading Corporation, Dravosburg, Penn-
sylvania, its officers, agents, successors, and assigns,
shall take the action set forth in said recommended
Order, as so modified:
232 NLRB No. 60
1. Substitute the following for paragraph 2(a):
"(a) Immediately notify Bertram G. McCully that
it has no objection to his reinstatement and,
thereafter, upon his unconditional application there-
for, offer him reinstatement to his former job or, if
such job is not available, to a substantially equivalent
job, and make him whole for any loss of pay he may
have suffered during the period commencing 5 days
after the date of any such application, in the manner
set forth in paragraph 2(b) below."
2. Substitute the following for paragraph 2(b):
"(b) Upon his unconditional application for rein-
statement, offer Bertram G. McCully immediate and
full reinstatement for his former job, if that job no
longer exists, to a substantially equivalent job,
without prejudice to his seniority or other rights and
privileges, dismissing, if necessary, any replacements,
and make him whole for any loss of pay he may have
suffered for the period commencing 5 days after the
date of any such application and terminating on the
date of Respondent's offer of reinstatement, such loss
to be computed in the manner set forth in the
Board's Decision and Order.
3. Substitute the attached notice for that of the
Administrative Law Judge.
I Upon due consideration, the General Counsel's motion to reopen the
record and to amend the recommended Order of the Administrative Law
Judge is hereby denied.
2 Respondent 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
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall 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.
3 Member Jenkins would order Respondent to reinstate McCully with
backpay from the date of discharge, subject to normal offset considerations.
See his dissenting opinion in Michael Muldoon Elder, d/b/a Vorpal Galleries,
227 NLRB 446 (1976).
4 In accordance with our decision in Florida Steel Corporation, 231
NLRB 651 (1977), we shall apply the current 7-percent rate for periods pnor
to August 25, 1977, in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity
to give evidence, it has been decided that we have
violated the National Labor Relations Act and we
have been ordered to post this notice.
The National Labor Relations Act gives you, as
employees, these rights:
To engage in self-organization
To form, join, or help unions
358
HILLER TRADING CORPORATION
To bargain collectively through a repre-
sentative of your own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all such activities.
Accordingly, we give you these assurances:
WE WILL'NOT discharge you or take any other
reprisal against you because you have supported
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
Teamsters Steel Haulers' Local 800, or any other
labor organization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed them in the
Act.
WE WILL revoke our discharge of Bertram G.
McCully and we will correct our employment
records accordingly and, upon his unconditional
application, we shall offer to McCully full and
immediate reinstatement to his previous position,
or, if such job is not available, to a substantially
equivalent job, and make him whole for any loss
of pay he may have suffered during the period
commencing 5 days after the date of such
application.
WE WILL notify Bertram G. McCully, in
writing, that he has not been discharged but is still
our employee and WE WILL also notify him that
our letter to him, dated August 30. 1976, advising
him that he has been discharged, is rescinded.
HILLER TRADING
CORPORATION
DECISION
STATEMENT OF THE CASE
JOHN F. CORBLEY, Administrative Law Judge: A hearing
was held in this case on December 14, 1976, at Pittsburgh,
Pennsylvania, pursuant to a charge filed by International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Teamsters Steel Haulers' Local
800, hereinafter referred to as the Union, on August 30,
1976, and served on Respondent by registered mail on the
same date; and amended charge filed by the Union on
October 27, 1976, which was served on Respondent by
registered mail concurrently with the complaint, and on a
complaint and notice of hearing issued by the Regional
Director for Region 6 of the National Labor Relations
Board on October 29, 1976, which was also thereafter duly
served on Respondent. The complaint alleges that Respon-
dent has violated Section 8(aX3) and (1) of the National
Labor Relations Act, as amended, by discharging Bertram
G. McCully and thereafter refusing to reinstate him
because of McCully's union or other concerted activities.
In its answer to the complaint, which was also duly filed,
Respondent has denied the commission of any unfair labor
practices.
For reasons which will appear hereinafter, I find and
conclude that Respondent discharged McCully in violation
of Section 8(a)( 1) and (3) of the Act.
At the hearing the General Counsel and Respondent
were represented by counsel. All parties were given full
authority to examine and cross-examine witnesses, to
introduce evidence, and to file briefs. At the conclusion of
the hearing General Counsel and Respondent presented
oral arguments on the record. A brief has subsequently
been received from Respondent which has been consid-
ered.
Upon the entire record in this case including the brief
and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Connecticut corporation with its principal
office located in Dravosburg, Pennsylvania, owns trucking
equipment which it leases to certified interstate motor
carriers of property. During the 12-month period immedi-
ately preceding the issuance of the complaint, Respondent
derived gross revenues in excess of $50,000 from its
operations and received in excess of $50,000 for services
performed for individuals or companies which are directly
engaged in interstate commerce.
The complaint alleges, the answer admits, and I find that
Respondent is now, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent's Relevant Hierarchy
At all times material herein, Frederick R. Hiller,
Respondent's vice president, and Robert A. Patterson, its
general manager, have been, and are now, agents of
Respondent acting on its behalf and are supervisors within
the meaning of Section 2(1 1) of the Act.
B. Background and Sequence of Events
As previously noted Respondent owns equipment which
it leases to certified interstate motor carriers of property.
Among other customers, Respondent leases equipment to
Pittsburgh and New England Trucking Company (PNE).
Frederick R. Miller, who is vice president of Respondent. is
also executive vice president of PNE. The president of
Respondent and of PNE is Frederick T. Hiller, father of
Frederick R. Hiller. Frederick T. Hiller is the sole
stockholder of Respondent and PNE. PNE performs
billing services for Respondent but it performs the same
359
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
services for other independent owners who lease equipment
to PNE. Respondent and PNE are both located in
Dravosburg, Pennsylvania, but in different buildings;
Respondent and PNE are separate corporations, maintain
separate books, ledgers, and records, and maintain sepa-
rate business accounts. Dale Tomb, vice president for
PNE, inspects Respondent's trucks periodically but he
performs the same functions in respect to trucks leased to
PNE by other companies because of PNE's responsibilities
in this regard under ICC regulations and the leases.
The Union was certified as the exclusive representative
for purposes of collective bargaining with respect to rates
of pay, wages, hours of employment, and/or other terms
and conditions of employment of all of Respondent's
truckdrivers on April 21, 1976.
The Union was also certified as the exclusive representa-
tive for the purposes of collective bargaining with respect
to rates of pay, wages, hours of employment, and/or other
conditions of employment of all office clerical employees
employed by PNE on May 14, 1976.
McCully has been employed by Respondent on at least
three occasions, the most recent one being from 1974 until
his suspension on August 25, 1976. He was terminated by
Respondent on August 30, 1976, at which time he was on
strike. It does not appear that he has since been reem-
ployed and, as I understand the General Counsel's
concession at the conclusion of the hearing herein,
McCully has been participating in the strike since August
30, 1976.
McCully also has an earlier history of union activities. In
1970 or 1971, during a prior period of employment with
Respondent, he solicited other truckdrivers to sign union
authorization cards.
On January 13, 1976,' a charge was filed by the Union
against Respondent in another case (Case 6-CA-8916)
alleging that Respondent had refused to pay McCully for
sick leave because of his activities on behalf of the Union.
This charge was subsequently withdrawn after Respondent
made a settlement with McCully. Respondent's vice
president, Frederick R. Hiller, who ultimately made the
decision to discharge McCully, was aware of this charge.
In May, McCully was handed a document by Respon-
dent General Manager Patterson, in connection with
McCully's suspension on May 21.2 When Patterson gave
McCully this document in Respondent's parts room,
Patterson told McCully, "Watch it, they're out to get
you."3
On August 20,4 McCully was driving one of Respon-
dent's tractors (a Mack), attached to an unloaded trailer,
from Respondent's place of business in Dravosburg,
Pennsylvania, to pick up a load at Neville Island about 36
miles away. After traveling some 16 miles the truck lost
power on a parkway near Pittsburgh and McCully pulled it
to the side of the road in a safety zone. McCully got out of
the tractor, opened the hood, and noticed oil coming from
t All dates appearing hereinafter occurred in 1976 unless otherwise
noted.
2 The document was withdrawn from evidence by the General Counsel
on the basis of the concession of Respondent's counsel that McCully's
suspension of May 21, 1976, had nothing to do with McCully's discharge on
August 30, 1976.
:' McCully credibly so testified. Patterson did not testify.
a high pressure hose on the pump on the engine. He then
got a ride to the Mack repair garage, called PNE, and left a
message for his dispatcher, Bill Hart, in which McCully
reported the incident. After this call McCully and a
serviceman from Mack returned to McCully's truck on the
parkway bringing with them hoses and a case (24 quarts) of
oil. The serviceman replaced the hose from which oil had
been leaking and gave the old hose to McCully. McCully
also put 14 quarts of oil in the truck, leaving the remaining
10 quarts in cans in the cab. After the serviceman tried
unsuccessfully to start the motor of McCully's tractor,
McCully and the serviceman returned to the Mack garage
and again called Hart. Hart stated that Hart would send
out another tractor.
McCully then returned on a Mack tow truck to where his
tractor and trailer were still parked on the parkway. When
McCully arrived, he found a second tractor waiting for
him.5 After the tow truck operator unhooked McCully's
tractor to tow it in, McCully hooked up the second tractor
and continued on to Neville Island to pick up his load.
On August 23, the tractor on which the problem had
developed on August 20 was brought to Respondent's
place of business in Dravosburg.
On the morning of August 25, McCully was interviewed
by Ginger Mroziak, Respondent's office manager, and
Grant Tissue, Respondent's shop foreman, about the
incident of August 20.
During the late afternoon of August 25, Mroziak gave
McCully a letter suspending him from employment for 5
days "for failing to perform your job duties." The letter
stated that Respondent would post a letter on August 30
advising McCully of its decision whether additional
discipline would be imposed.
On August 27, McCully attended a union meeting at the
Riverside Hotel in Dravosburg, Pennsylvania. Also present
at this meeting were Robert Todd, the Union's president,
and 16 office clerical employees of PNE. Although a strike
vote had been taken some weeks before, it was finally
decided at this meeting that the PNE clerks and Respon-
dent's truckdrivers would go on strike. No other Respon-
dent truckdriver besides McCully was present, however, at
the meeting of August 27.
On August 28, a Saturday, McCully telephoned several
of Respondent's drivers but was only able to contact Bill
Barron and Junior Conway. McCully told the latter two
individuals that they were going to be on strike the
following Monday, August 30.
On August 30, the strike commenced in the morning with
a picket line near the premises of Respondent and PNE.
The clerical employees of PNE participated in this strike as
did McCully. No other Respondent driver joined them.
At 3 o'clock on the afternoon of August 30, Porterfield, a
lawyer of Respondent, went out to the picket line and
handed McCully a letter notifying him that he was being
discharged effective the next day.
4 McCully was unsure if this incident occurred on August 19 or 20.
However, a service bill related to the incident was dated August 20, the same
date the incident was reported to Fredenck R. Hiller, hence I find it
occurred on the later date.
5 The truck had been brought and left there by Douglas Frederick,
another Respondent dnver.
360
HILLER TRADING CORPORATION
As previously noted, McCully apparently remained on
strike from that day until the hearing herein and has not
returned to work for Respondent.
Concluding Findings
The General Counsel's proof establishes that Bertram
McCully was a union adherent, this fact was well known to
Respondent, and Respondent was disposed to seek reprisal
against McCully. Thus, a charge was filed by the Union on
McCully's behalf with Region 6 of the National Labor
Relations Board. This charge was later withdrawn after a
settlement was made between Respondent and McCully.
Respondent's vice president, Frederick R. Hiller, who
made the decision to discharge McCully, admitted that he
was aware of this charge.6 In May 1976, when McCully
was handed a letter by Robert Patterson, Respondent's
general manager, which letter dealt with Respondent's
discipline of McCully in another matter, Patterson told
McCully to watch it, because "they were out to get you."
Inasmuch as the letter was from Respondent and dealt with
the suspension of McCully at that time, the "they"
obviously referred to Respondent. Were there any other
explanation, Patterson could have supplied it at the
hearing. However, he did not testify.7
The question for me to decide is whether Respondent
discharged McCully because of his adherence to the Union
or whether - since Respondent has elected to advance this
sole affirmative defense - McCully was discharged
because of the incident on the parkway involving his truck,
heretofore described, which occurred on August 20.
In this incident, it may be recalled, the motor of
McCully's tractor ceased operating. More precisely, the
#6 main bearing "galded" (apparently welded itself) to the
shaft, causing the motor to lock up. The reason for the
galding was lack of oil. And the cause of the bearing not
receiving enough oil to lubricate it was that oil escaped
from the oil line through a hole in a high pressure hose.
None of the foregoing is disputed, nor is it disputed that
discharge would be the normal discipline in this industry
for a truckdriver who was responsible for a truck motor
freezing up due to lack of oil.
What is disputed is whether or not McCully is responsi-
ble for what occurred. I conclude that he was not.
To begin with there is no showing that McCully was
accountable for the maintenance of the hose. This is
6 McCully also attended a representation case hearing in December
1975, a fact of which Frederick R. Hiller was also aware.
I His failure to testify gives rise to an inference against Respondent,
which I draw, that his testimony would have been unfavorable to
Respondent. Avon Convalescent Center. Inc.. 219 NLRB 1210, 1213 (1975).
The General Counsel also presented evidence that an admitted supervisor of
PNE, Ronald T. Beckman, told PNE employee Mary Geer, on August 27,
1976, that some unidentified person had told Beckman that McCully had
been suspended because he had been passing out cards to the other drivers.
The General Counsel also presented some evidence to show that Respon-
dent and PNE are a single employer within the meaning of the Act,
obviously with the purpose of making Beckman's foregoing statement
binding upon Respondent. I find no relevance in Beckman's statement
because its source, for all this record shows, may well have been a rank-and-
file employee whose utterances - absent a special showing of agency not
present here - would be binding on neither PNE nor Respondent. Having
so concluded, it becomes unnecessary for me to determine whether
Respondent and PNE are a single employer within the meaning of the Act.
apparently a function of Respondent's mechanic person-
nel.
Respondent's defense thus narrows to the contention
that, after the hole in the hose occurred and after oil started
to escape through the hose, McCully should have known
oil was escaping and had time enough to stop the truck
before the aforementioned damage occurred to the motor.
In urging this defense, Respondent contends that McCully
might have known oil was escaping if the indicator on the
oil gauge dropped, if a red light on the dashboard showing
lack of oil had gone on, or from a rough engine noise or
from the smoke or fumes of oil.
As the General Counsel pointed out, there was, of
course, only one witness to what happened immediately
preceding the freezeup of the motor on McCully's truck.
And that witness was, of course, McCully himself.
McCully presented a somewhat uncooperative demeanor
on the stand and there were a number of inconsistencies in
his testimony.8 I have therefore examined his testimony as
to what occurred with considerable care. His testimony was
consistent that his first knowledge of any problem was
when he started losing power. At that time he noticed that
the pressure showing on the oil gauge dropped a little and
then "went like that on me." He then looked out the
window and saw oil escaping from under the hood on to
saddle tanks on the outside of the tractor. He turned his
flashers on, coasted about 300 yards to a safety zone on the
side of the road (from the middle lane where he had been
driving) when he came to a stop. He did not notice the red
light (showing an oil problem) go on until he got to the side
of the road. At no time did he notice any smoke or fumes.
Respondent seeks to make much of McCully's repeated
testimony that, from the time he first noticed the oil gauge
dropping until he finally stopped, 10 minutes had expired
(he eventually testified it might not have been that long and
that the 10 minutes was only an approximation). He also
testified consistently and crucially that he did not notice
any loss of oil pressure until he noticed the loss of engine
power.9 It was after he became aware of the loss of engine
power that he looked out the window, saw oil escaping,
then began coasting to the safety area at the side of the
road.
An effort was made by Respondent to counter the effect
of McCully's testimony by presenting an expert-type
witness, David Schlessinger. Schlessinger had some 3 years'
experience in the repair of Mack trucks such as that
McCully was driving, attended a Mack truck repair school
8 E.g., at one point he testified no one talked to him about the truck
breakdown, whereas later, on cross, he admitted he was interviewed about
this subject by Mroziak and Tissue on August 25. He stated he considered
this a casual conversation. At another point in his testimony he said he put
four quarts of oil in the truck the night before the accident, elsewhere ire said
he put seven quarts in at that time. On direct he testified he never saw the
red light go on, on cross he said he noticed it lit for the first time after he
pulled over to the side. Also, he was uncertain as to the precise spot where
he first became aware that he was having trouble with his truck.
9 The matter of the oil pressure showing on the oil gauge was initially
raised by Respondent on its cross-examination of McCully. The first time
the question was presented to him McCully stated that he noticed a drop in
oil pressure when the truck first began losing momentum. After the matter
had been gone over a number of times he continued to tell the same story at
the conclusion of his examination.
361
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for some 3 weeks, and had also driver trucks for a year and
a half. Schlessinger testified that as soon as oil would begin
to escape through a hole such as that in the high pressure
hose in McCully's truck, the truck would start losing oil
pressure within seconds to a minute and that the oil gauge
would reflect this. Schlessinger further testified that it
would then take 12 to 15 minutes to pump out all of the oil.
He further testified that this loss of oil would cause changes
in the engine sound.
Another witness for Respondent, Dale Tomb, PNE's vice
president for operations, testified that he has been in this
industry for 28 years and has repaired trucks. He testified
that he inspected McCully's truck when it was returned to
Respondent on August 23 and noticed oil still adhering to
the left side of the engine. He stated that this escaping oil
should have caused smoke and fumes when it hit the engine
which would have been warm by the time the incident
occurred (McCully testified he had been driving about a
half hour). Tomb also testified that it would have taken 10
to 20 minutes to pump out all of the oil once it started to
escape. He also stated that there should have been an
immediate indication on the oil pressure gauge that the oil
pressure was dropping; he testified that after the red light
went on there should still have been time to stop the engine
before any damage had been done.
The General Counsel met the testimony of these two
witnesses with an expert of his own, George Jordan. Jordan
testified that he has operated a truck repair facility for 25
years and has driven trucks for 15 years. He has repaired
all kinds of Mack trucks. He testified that the left side of
the Mack engine like that on McCully's truck is called the
"cold side" of the engine, that there is only about 5-10
degree difference between the oil temperature and the
temperature of the water and the engine block and
consequently there would be no smoke or fumes. He
further testified that the oil circulation system could pump
dry before there would be any drop in oil pressure and
before the red light would go on -- that is, not until air
began to come through. He said, insofar as any change in
the noise of the engine is concerned, the engine could lock
up before any change could be heard. He disagreed that
the oil pressure would drop as soon as oil began escaping
from the hose and he further opined that the oil pressure
might not drop for 10 minutes thereafter.
As can be seen from the foregoing there is a considerable
clash in the testimony of these experts. I am more
persuaded by the testimony of Jordan than that of Tomb
and Schlessinger because Jordan's testimony seems to
make more sense in the light of certain undisputed facts on
which much of it was based. Thus, Jordan made the point
that the left side is the cold side of the Mack engine and
that the heat of that side would not be so high that it would
"' Tomb testified that along the oil lines there are high pressure areas and
low pressure areas, hence, it is apparent that the pressure cannot be
consistent along the whole line even while the line is functioning perfectly.
Hc further testified that the hose which developed the hole in this case is a
high pressure hose coming after the oil pump. This obviously leads to the
question as to the location of the point along the oil line where the oil
pressure is measured (and fiom which a wire leads to the oil pressure gauge
on the instrument panel to record that pressure). If the pressure measure-
ment was made at a point along the oil line right after the high pressure hose
which sprung the leak herein, the possibility that pressure loss would quickly
show up on the indicator would be apparent. If, however, the pressure
cause oil spurting on it to fume or smoke. While the various
witnesses pointed out that the Mack truck does not
continually utilize all of the 38 quarts of oil needed to fill
the system, Jordan mentioned that as many as 18 quarts
will be in the pan (sump) while the truck is in operation.
This means that there is much reserve oil to draw on to
operate the system. It would also follow that as long as the
system is capable of drawing oil through the lines there
would be enough reserve oil available to maintain oil
pressure for a period of time, despite a substantial leak
along the line. It further follows that said pressure would
not necessarily diminish 10 until air (instead of oil) began to
be drawn through the line. The fact that no oil was being
pumped through the line just before McCully actually
stopped in the safety zone is verified by McCully's
testimony that he saw no oil under the truck when it first
stopped and the testimony of Respondent's witness,
Frederick (who brought the replacement tractor to the
scene that morning), that no oil appeared on the road for at
least 50 yards behind the point where McCully's truck
stopped.
In brief, I conclude from this state of the evidence that it
has not been established that the oil gauge would indicate
any loss of pressure until air came into the system and the
motor had already had cause (from oil starvation) to cease.
I further conclude that McCully - as soon as he noticed
any problem on the gauge in the operation of the truck -
got to the side of the road as quickly as he could - bearing
in mind that he was coasting, as he testified. In reaching
the latter conclusion, I rely not only on the testimony of
McCully as to what happened and the supportive testimo-
ny of Jordan, but also upon the fact that McCully's
testimony as to what he did is consistent with the conduct
of an individual desiring to react promptly to preserve his
own safety after discovering a mechanical problem in a
truck he was driving on an expressway.
By the same token, I reject the suggestion in testimony
adduced at the hearing by Respondent that McCully could
be faulted for not stopping his truck on the expressway
itself. I do not believe it would make sense to criticize
McCully for pulling the truck over to a safety zone, for the
incident occurred at 6:30 on a weekday morning on an
expressway near one of the nation's largest cities and, while
the road was approximately level without turns for some
distance behind where the incident occurred, the danger of
accident to property and life in incipient rush hour traffic
was more to be avoided than possible damage to Respon-
dent's truck. Had there been any such accident (because
McCully had stopped in the middle of the highway)
Respondent's liability might have been considerably
greater.
measurement was made at a point prior to the hose - for example, at the
pump itself which seems more likely - the loss of pressure would not show
up until air started coming through the pump. But since the location of the
point of pressure measurement along the oil line is vitally related to
Respondent's affirmative defense and Respondent presented no evidence on
the matter, I will not draw any conclusion in this regard which is favorable
to that defense. Indeed, if Jordan's testimony in respect to the "oil pressure
line" refers to the wire going to the oil pressure gauge, it would rather be
apparent that the pressure is, in fact, measured at a valve located just after
the oil pump.
362
HILLER TRADING CORPORATION
I, accordingly, conclude that, insofar as the record
shows, McCully was not responsible for the injury to the
motor of Respondent's truck which McCully was driving
on the morning of August 20, when the incident occurred.
But the failure to establish his responsibility is not the
only problem with Respondent's defense. The sequence of
events after the incident further suggest that the damage to
the truck does not supply Respondent's real motivation for
discharging McCully.
Thus, Frederick R. Hiller first learned of the incident on
August 20 but, it may be recalled, the truck was not
returned to Respondent's shop until August 23. On the
latter date, Hiller admitted, Tomb and Grant Tissue,
Respondent's shop foreman, determined that the red light
on the oil indicator of the truck was operating. Since Hiller
also testified that it had been determined that the oil gauge
itself was also operating (but did not say when this latter
determination was made) I conclude that this check was
performed on the same date because it seems logical that
the proper performance of both these items would be the
first thing investigated. On the afternoon of August 23,
Tomb gave his opinion as to whether or not the engine had
to be replaced. As of August 25, Hiller admitted, he
suspected that the engine would have to be replaced, hence
instructed Tissue and Mroziak to talk to McCully and get
his version of what happened. On the afternoon of August
25, McCully was given his suspension letter.
Hiller explained that McCully was suspended for 5 days,
after consultation with Hiller's counsel, Porterfield, to
determine to what extent the engine was damaged (it had
not yet been torn down). Hiller said he allowed 5 days
because it would take at least 2 days to investigate the
motor and the following 2 days were on the weekend.
During the balance of the week Respondent's machine
shop foreman, Bill Brimacombe, did in fact check the
engine and told Hiller that the engine was so scored that it
would probably have to be replaced but that he would
attempt to grind it down and repair it. (As it turned out
there was enough leeway for the engine to be ground down
and it did not need to be replaced.)
Hiller then testified that on August 29, he called his
lawyer, Porterfield, discussed the damages and the causes
of the damages, and determined that discharge would be in
order. He testified that, at that time, he had not been
advised there would be a strike nor that pickets would be
"out in view" the following morning.
Hiller's account of the suspension and discharge of
McCully raises any number of questions. To begin with, as
of August 25, Hiller already knew that McCully was the
driver of the truck, that the engine was frozen and (the
thinking at that time) it would probably have to be
replaced, and that the red light and oil pressure gauge were
working. There remained only - according to him - the
question as to the actual damage to the motor, which
would be investigated during the 5-day suspension.
" Hiller also testified that Respondent had rehired McCully in 1974
after McCully in 1970 or 1971 had attempted to organize Respondent's
drivers into a union. However. McCully's efforts in 1970 or 1971 were
unsuccessful. The Union herein, on the other hand, was certified to
But the news he got during that 5-day suspension from
Brimacombe was better than Hiller's previous information
- to wit, that the engine might be able to be repaired.
Consequently, from August 25 to 29, when Hiller claims
he called Porterfield and decided to discharge McCully, the
picture had improved rather than worsened.
The only other relevant events that had occurred during
that period was that, on August 27, the employees finally
decided to go on strike and McCully, on August 28, had
tried to get other drivers of Respondent to join that strike.
While Hiller claimed that he was not apprised as of August
29 that there was going to be a strike on August 30, he did
not say he was not apprised that McCully was attempting
to get the other drivers to go on strike nor did he explain
why he found it necessary to talk to Porterfield on Sunday
night when his original plan for the suspension of 5 days
was to make allowance for the intervening weekend. His
making of this allowance clearly suggests that he expected
nothing would develop in respect to McCully during that
weekend.
He testified that his decision to discharge McCully was
based upon "the facts that if McCully would have been
observing the oil pressure gauge, the red warning light, that
he would have had adequate time to stop to pull over to the
side or even stop on the highway and not have damaged
the engine." There is no indication that Hiller consulted
any expert (during that period August 23 to 30) on the
question of the time McCully had to stop except Tomb or
Tissue who, as I found, had checked out the red light and
the oil pressure gauge. But this was accomplished on
August 23. Further, there is no showing that Hiller learned
anything new about the damage to the truck after August
25 and before August 30 except that the damage might be
less than originally expected - a factor favorable to
retaining McCully.
Hence, it is clear and I find that Respondent learned
nothing new about the truck damage during the period of
McCully's suspension from August 25 through 30, except
factors which, if anything, were helpful to McCully. It is
also clear that, during this same period, the Union decided
to go on strike, McCully participated in that decision and
tried to get other drivers to join, and, on August 30,
McCully actually went on strike - the only Respondent
driver to take such action.
I have already concluded that McCully was not responsi-
ble for the damage to Respondent's truck motor which
occurred in the incident of August 20.
In the light of this conclusion, all of the facts previously
recited and the logic of events including the timing of
McCully's discharge, I attach no weight to the conclusion-
ary and self-serving testimony of Hiller that Hiller's
decision to discharge McCully had nothing to do with the
latter's union activities." I rather conclude that,t 2 as
Patterson had warned McCully in May, Respondent from
that time on was out to get McCully and, when McCully
went on strike, Respondent used the truck incident as a
pretext to rid itself of him. I therefore conclude that
represent Respondent's truckdnvers in April 1976, about a month before
Patterson told McCully that Respondent was out to get McCully.
12 I found Hiller, in any event, to have presented a smug and somewhat
argumentative appearance on the stand.
363
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent discharged McCully on August 30, 1976,
because of McCully's union activities and that Respondent
thereby violated Section 8(aX I) and (3) of the Act.13
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE
UPON COMMERCE
The activities of Respondent set forth above, occurring
in connection with the operations of Respondent described
in section 1, above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
The recommended Order will contain certain of the
conventional provisions for cases involving unlawful
discharge in violation of Section 8(a)(l) and (3) of the Act.
This will require Respondent to cease and desist from the
unfair labor practice found and to post a notice to that
effect which will also state the affirmative action Respon-
dent will be required to take to remedy its discharge of
Bertram McCully. The affirmative aspect of the remedy
will not contain the conventional provisions for reinstate-
ment of McCully with backpay because he was on strike at
the time he was discharged and, as I understand the
General Counsel's closing statement, McCully was still on
strike at the time of the hearing.t 4 There is no indication
that he has ever made an unconditional offer to return to
work. On the other hand, since Respondent has discharged
McCully, I shall require it to revoke that action. I shall
further require Respondent to notify McCully that he has
not been discharged; that he remains Respondent's
employee and that Respondent's letter dated, August 30,
1976, informing McCully that he has been discharged, has
been rescinded.
Finally, it will be recommended, in view of the nature of
the unfair labor practice in which Respondent has engaged
(see N.L.R.B. v. Entwistle Manufacturing Company, 120
F.2d 532, 536 (C.A. 4, 1941), that Respondent be ordered
to cease and desist from infringing in any other manner
upon the rights guaranteed employees by Section 7 of the
Act.
1' The Laidlaw Corporation, 171 NLRB 1366 (1968), enfd. 414 F.2d 99
(C.A. 7, 1969); Cornelius American, Inc., 194 NLRB 909, 915 (1972); The
Ma! Department Stores Company, 184 NLRB 878, 881-885 (1970); see
Shattuck Denn Mining Corporation (Iron King Branch) v. N.L. R. B., 362 F.2d
466. 470 (C.A. 9, 1966), where the court, in speaking of the evaluation of an
employer's motive for discharge, held:
Actual motive, a state of mind, being the question, it is seldom that
direct evidence will be available that is not also self-serving. In such
cases. the self-serving declaration is not conclusive; the trier of fact may
infer motive from the total circumstances proved. Otherwise no person
accused of unlawful motive who took the stand and testified to a lawful
motive would be brought to book. Nor is the trier of fact - here the
Trial Examiner - required to be any more naif than is a judge. If he
finds that the stated motive for discharge is false, he certainly can infer
that there is another motive. More than that, he can infer that the
motive is one that the employer desires to conceal - an unlawful
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. The Union is a labor organization within the
meaning of the Act.
3. By discharging Bertram McCully because of McCul-
ly's union activities, Respondent has violated Section
8(aX)(1) and (3) of the Act.
4. The aforementioned unfair labor practice is an
unfair labor practice affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 15
The Respondent, Hiller Trading Corporation, Dravos-
burg, Pennsylvania, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in, activities in behalf of,
or sympathies toward International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
Steel Haulers' Local 800, or any other labor organization,
by discriminating in regard to hire or tenure of employ-
ment or in any other manner in regard to any term or
condition of employment of any of Respondent's employ-
ees in order to discourage union membership, activities, or
sympathies.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Revoke its discharge of Bertram G. McCully and
correct its employment records to reflect that McCully
remains its employee.
(b) Notify McCully, in writing, that McCully has not
been discharged but is still Respondent's employee and
that Respondent's letter to him dated August 30, 1976,
advising him that he was discharged, is rescinded.
(c) Post at its place of business in Dravosburg, Pennsyl-
vania, copies of the attached notice marked "Appendix." 16
Copies of said notice, on forms provided by the Regional
Director for Region 6, after being duly signed by
motive - at least where, as in this case, the surrounding facts tend to
reinforce that inference.
i4 In the absence of any claim and showing to the contrary I conclude
that, as of August 30, 1976, the strike was an economic strike.
i' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
16 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
364
HILLER TRADING CORPORATION
Respondent's representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing 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, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
365