Hudson Pulp & Paper Corp.

National Labor Relations Board - Board Decisions

Oct 21, 1958

121 N.L.R.B. 1446 (N.L.R.B. 1958)

1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4 By conducting a boycott campaign against the Company's products for the
purpose of forcing the Company to recognize Respondents as exclusive representative
of the Company's employees and to enter into a contract with Respondents when
they did not represent a majority of the Company's employees, Respondent restrained
and coerced said employees in the exercise of rights guaranteed them by Section 7
of the Act, thereby violating Section 8 (b) (1) (A)
5 The aforesaid unfair labor practices , having occurred in connection with the
Company's operations as set forth in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States and
substantially affect commerce within the meaning of Section 2 (6) and (7) -of the
Act
THE REMEDY
Having found that the Respondents have engaged in certain unfair labor practices,
I shall recommend that they cease and desist therefrom and that they take certain
affirmative action, which I find necessary to remedy and to remove the effects of
the unfair labor practices and to effectuate the policies of the Act
In order to remedy the effects of Respondents nationwide boycott campaign, it
will be recommended that Respondents publish in their official organ, United Rubber
Worker, a notice that, pursuant to the recommended order herein, they have ended
their boycott of O'Sullivan's products and that they make distribution of such notice
to all addressees to whom boycott material was sent
[Recommendations omitted from publication 7
Hudson Pulp & Paper Corporation and Enon M. Harris
Pioneer Transportation Service, Inc. and Enon M. Harris. Cases
Nos 12-CA-32 and 1"A-33 October 21, 1958
DECISION AND ORDER
STATEMENT OF THE CASE
These proceedings were instituted by the filing of charges by Enon
M Harris, an individual, in Cases Nos 12-CA-32 and 12-CA-33 on
January 24, and 25, 1957, respectively The "charge in Case No.
12-CA-32 named as respondent "Hudson Pulp & Paper Corporation,"
herein called Hudson The charge in Case No 12-CA-33 named as
respondent "Irving Weinstein and Mrs. Pauline Weinstein d/b/a
Pioneer Transportation Service, Inc " A copy of the charge in Case
No 12-CA-32 was duly served on Respondent Hudson on January 31,
1957 A copy of the charge in Case No 12-CA-33 was served by post-
paid registered mail addressed to "Pioneer Transportation Service,"
receipt of which on January 29, 1957, was acknowledged by Pauline
Weinstein The charge in each case alleged that the Respondent, on
and after September 22, 1956, "m order to discourage membership in
a labor organization, discriminated in regard to the hire and tenure
of employment and to the terms and conditions of employment" of
Enon M Harris Each charge also alleged that since on or about
September 20, 1956, and thereafter the Respondent "interfered with,
restrained, and coerced its employees in the exercise of their rights as
guaranteed in Section 7 of the Act "
121 NLRB No 176
HUDSON PULP & PAPER CORPORATION 1447
On May 9, 1957, the General Counsel of the National Labor Rela-
tions Board, herein called the General Counsel and the Board respec-
tively, by the Regional Director for the Twelfth Region, issued an
order consolidating the cases and simultaneously therewith issued his
complaint alleging that Hudson and Irving Weinstein and Mrs.
Pauline Weinstein, d/b/a Pioneer Transportation Service had en-
gaged in, and were engaging in, unfair labor practices affecting
commerce within the meaning of Section 8 (a) (1) and (3) and Sec-
tion 2 (6) and (7) of the National Labor Relations Act, as amended, 61
Stat. 136,- herein called the Act. The complaint alleged, inter alia,
that Irving Weinstein and Mrs. Pauline Weinstein were partners
doing business at Palatka, Florida, under the firm name of Pioneer
Transportation Service. The order consolidating the cases also gave
notice of the time of hearing on the complaint. Copies of the com-
plaint, together with the order and notice, were served on Enon M.
Harris and Respondent Hudson and Irving Weinstein and Mrs. Paul-
ine Weinstein, d/b/a Pioneer Transportation Service.
Separate answers to the complaint were filed on May 22, 1957, by
Irving Weinstein and Mrs. Pauline Weinstein denying generally every
allegation of the complaint, and specifically denying, inter alia, the
existence of any partnership as alleged in the complaint. A similar
answer was filed by Respondent Hudson on this same date. Also on
May 22, 1957, Irving Weinstein, Mrs. Pauline Weinstein, and Re-
spondent Hudson filed separate motions to dismiss and for stay of
proceedings, each motion asserting, inter alia, the nonexistence of the
alleged partnership.
On May 22, 1957, the Regional Director denied the motions for stay
and referred the motions to dismiss to the Trial Examiner.
Pursuant to the notice, the hearing commenced in Palatka, Florida,
on May 28, 1957, before Trial Examiner John C. Fischer. The Gen-
eral Counsel was represented by counsel. Counsel for Respondent
Hudson and Irving Weinstein and Mrs. Pauline Weinsteinappeared
specially for the purpose of contesting the Board's jurisdiction. The
motions for stay of proceedings were renewed and were denied by
the Trial Examiner. The motions to dismiss were also denied by the
Trial Examiner. The General Counsel then moved to amend the
complaint by, inter alia, striking that paragraph alleging the part-
nership and substituting therefor a paragraph alleging the existence
of a corporation named "Pioneer Transportation Service, Inc.,"
herein called Pioneer. This motion was granted by the Trial Exam-
iner. Subsequently, the General Counsel moved to strike all allega-
tions of the complaint as to Pioneer, leaving Hudson as the sole
respondent. This was granted. Respondent Hudson then renewed,
to the amended complaint, its motions to dismiss and for a stay.
These were denied by the Trial Examiner. The General Counsel
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then moved for leave to reinstate the allegations as to Pioneer. While
the record does not show any express ruling on this motion, the Trial
Examiner and all parties conducted themselves as though the motion
had been granted, as we so treat it, too. The hearing was then ad-
journed until June 10, 1957.
On May 29, 1957, the General Counsel issued his first amended
.complaint; naming as the Respondents Hudson Pulp & Paper Cor-
poration and Pioneer Transportation Service, Inc. With respect
to the status of Pioneer, the amended complaint alleged that Pioneer
was a corporation which leased truck and trailer equipment to Hud,
son, and that Irving Weinstein, was an agent of Pioneer and a super-
visor of Hudson. With respect to the- unfair labor practices, the
amended complaint alleged, in substance that : (1) The Respond-
ents, on or about January 15, 1957, discharged their employee, Enon
M. Harris, and have since refused to reinstate him because of his
activities in behalf of a union; and (2) the Respondents, by certain
of their officers, agents, and supervisors, interrogated employees con-
cerning their union activities and made certain statements which
interfered with, restrained, and coerced their employees in the exer-
cise of-the rights guaranteed in Section 7 of the Act. Copies of the
first amended complaint were duly served upon Respondents Hud-
son and Pioneer and upon Harris.
The Trial Examiner'renoticed the hearing for June 11, 1957. , The
Respondents' request for further postponement was denied.
The hearing was resumed in Palatka, Florida, and was duly held
on various dates thereafter, concluding on June 26, 1957. The Re-
spondents and the General Counsel were represented by .counsel, par-
ticipated in the hearing, afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence per-
tinent to the issues.
On resumption of the hearing on June 11, counsel for the Respond-
ents made several motions to dismiss the complaint in its entirety,
or, in the alternative, to dismiss certain portions thereof, as well as
motions for severance. These motions were denied by the Trial
Examiner.' At the request of counsel for the Respondents, the Trial
'As grounds for the relief sought by these motions, the Respondents contended that:
(1) no charge was ever served upon Respondent Pioneer; (2) there is no charge to sup-
port the allegation in the complaint of joint responsibility of the Respondents ; ( 3) neither
the charges nor the complaint allege any facts showing joint responsibility ; ( 4) certain
unlawful acts complained of were either not specifically mentioned in the charge or were
not alleged in the original complaint ; and (5) certain acts complained of occurred more
than 6 months prior to the Issuance and service of the first amended complaint.
As to (1), the record shows that the charge in Case No . 12-CA-33 was filed on Janu-
ary 25, 1957 , against "Irving Weinstein and Mrs. Pauline Weinstein dba Pioneer Trans-
poration Service, Inc." [Emphasis supplied.] Respondent Pioneer's president, Pauline
Weinstein , acknowledged receipt of this charge on January 29, 1957 , on a registered mail
return receipt . The following day, January 30, Pauline Weinstein , using her title of
president and on Respondent Pioneer 's letterhead, wrote the Board in reference to this
charge, thus again acknowledging its receipt by Pioneer. It is clear from the record that
HUDSON PULP & PAPER CORPORATION 1449
Examiner recessed the hearing for a period of 1 hour to permit coun-
sel to telegraphically request special permission of the Board to appeal
from the Trial Examiner's rulings 2 After ' recess, the Respondents
filed separate answers denying every allegation in the complaint.
During the course of the hearing, various rulings were made by the
Trial Examiner on other motions and on objections to the admission
of evidence. The Board 3 has reviewed the rulings of the Trial
Examiner and finds that no error which can plainly be termed preju-
dicial was committed. The rulings are hereby affirmed. All parties
were afforded .an opportunity to, and the Respondents and the Gen-
eral Counsel did, file briefs with the Trial Examiner.
On February 28, 1958, the Trial Examiner issued his Intermediate
Report,4 copies of which were duly served -upon the parties, in which
he found that the Respondents had engaged in unfair labor. practices
within the meaning of Section 8 (a) (1) and (3) of the Act. The
Trial Examiner further found that W. M. Baker, alleged in the com-
plaint to have engaged in conduct violative of Section 8 (a) (1) of the
Act, was not a ' supervisor within the meaning of the Act, and he
recommended dismissal of those allegations . Thereafter, the Re-
any error committed here by the preceding of this Respondent 's name on the charge with
the names of the Weinsteins was at most an error of misnomer , and it is equally clear
that this Respondent had actual notice of the charge . In Peterson Construction Company,
Inc., 106 NLRB 850; 851 , the Board held : "Where , as here, the error is one of misnomer
and the proper Respondent has actual notice of the charge and of the obvious misnomer, to
hold that the statutory requirements of service are not met is to project legalism to an
unwarranted length." We hold that a charge was filed and served upon Respondent
Pioneer.
As to ( 2) and ( 3) it was not essential that the charges allege the legal theory upon
which the Charging Party sought to hold both Respondents liable for the unfair labor
practices committed . A charge is not a pleading ; It need only inform the alleged violator
of the general nature of the grievance against him. N. L: R. B. v. Waterfront Employers
of Washington, 211 F. 2d 946 , 955• (C. A. 9). This, the charges here, sufficiently did.
As to the complaint , we hold that the allegations therein were sufficient to state a cause
of action.
As to ( 4) and ( 5), we find that the portions of the complaint attacked were adequately
supported by the charges filed ( cf. N L. R B. v. Wester Boot of Shoe Company, 190 F. 2d
12, 13-14 ( C. A. 5), enforcing 82 NLRB 497; N. L. R. B. v. Waterfront Employers of
Washington, supra ), and that the fillings were timely. For the purpose of Section 10 (b)
of the Act , it is immaterial that the acts complained of may not have been alleged in the
original complaint or may have occurred more than 6 months prior to the issuance of
the first amended complaint . It is the filing and service of the charge which tolls the
Section 10 (b) period , not the issuance of the complaint . We affirm the Trial Examiner's
rulings on these motions.
As to the motions for severance , it is clear that the joinder of the Respondents was
necessitated by the allegations of the complaint which attributed the unfair labor practices
to both Respondents , and the Trial Examiner 's denial thereof was correct Calcasieu
Paper Co., Inc., 99 NLRB 794, 795-796.
2 Counsel's request for permission to appeal was denied on June 13, 1957 . On June 15,
1957 , counsel requested reconsideration of this ruling. This was denied on June 19,' 1957.
8 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Chairman Leedom and Members Rodgers and Jenkins].
On March 6 , 1958, the Trial Examiner issued an erratum striking from his Inter-
mediate Report a paragraph recommending that the Respondents be ordered to bargain with
a named union if requested . A violation of Section 8 (a) (5) of the Act was neither
charged nor litigated in these proceedings.
1450 DECISIONS OF NATIONAL LABOR RELATIO1' S BOARD
spondents filed exceptions to the Intermediate Report and a support-
ing brief.' The General Counsel filed exceptions to portions of the
Intermediate Report together with a supporting brief, and a brief in
support of the balance of the Intermediate Report not excepted to.
The Respondents have also filed a motion to renew certain motions
made before and denied by the Trial Examiner, and a motion to
reopen the record.6
The Board has considered the Intermediate Report, the exceptions,
briefs, motions, and the entire record in the case. Because of the
extent of our disagreement with the Trial Examiner's Intermediate
Report, we make our own findings, conclusions, and order, as follows :
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
Respondent Hudson is engaged in the manufacture of paper prod-
ucts and operates plants at Palatka, Florida (the only one involved
here) ; Augusta, Maine; Wellsburg, West Virginia; Pine' Bluff,
Arkansas; Carteret, New Jersey; and Bellows Falls, Vermont. It
annually ships from its Palatka plant to points outside the State of
Florida products valued in excess of $100,000. We find that Hudson
is engaged in commerce within the meaning of the Act.
Respondent Pioneer is a Pennsylvania corporation. At all times
material here, Pioneer was engaged in the business of furnishing,
under a rental agreement, tractor and trailer equipment to Hudson
for the transportation of Hudson's raw materials, machinery, and
products. Pioneer was solely responsible for the operation and main-
tenance of the equipment furnished. The drivers operating this
equipment were carried on Hudson's payroll and paid by Hudson
checks, but were under the supervision of Irving Weinstein, treasurer
and secretary of Pioneer. Weinstein also had the primary right to
hire and discharge these drivers, subject to clearance with Hudson.
In practical effect, Hudson thus designated Pioneer (acting through
Weinstein) to act as.its agent with respect to the operation of the
leased equipment and the hiring, discharging, and supervision of its
driver employees. As Section 2 (2) of the Act provides that "any
person acting as an agent of an employer, directly or indirectly" is an
"employer" within the meaning of the Act, we find that Pioneer is an
5 Respondents in their exceptions allege that the Trial Examiner was biased and
prejudiced . We have carefully considered the entire record and each of the points urged
by Respondents and find no basis for this charge . Cf. Bryan Manufacturing Company,
196 F. 2d 477 (C. A. 7) ; Aerovox Corporation, 102 NLRB 1526 , enfd. 211 F. 2d 640
(C. A., D. C) ; Linton•Summst Coal Company, Inc, 120 NLRB 346. We note , moreover,
that on one strongly contested issue--the supervisory status of Baker-the Trial
Examiner sustained the Respondents' position.
6 The motions renewed are those discussed in, footnote 1. For the reasons given there,
the motions are denied . As to the motion to reopen , see footnote 12.
HUDSON PULP & PAPER CORPORATION 1451
"employer" for the remedial purposes of the Act. Cf. West Texas
Utilities Company, 108 NLRB 407, 413-414; enfd . 218 F. 2d 824
(C. A. 5).
II. THE LABOR ORGANIZATION INVOLVED
Truck Drivers, Warehousemen and Helpers Local No. 512, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, herein called the Union, is a labor organization
within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Union's efforts to obtain recognition
The instant proceedings grew out of an unsuccessful campaign of
the Union to organize Respondent Hudson's six truckdrivers. In
early September 1956, four of these drivers, Enon M. Harris, Alvin
D. Thomas, George W. Miles, and Glenn Boram, determined to obtain
representation by a union. Harris, acting as spokesman for the group,
contacted William Fowler, a representative of the Union, in Jackson-
ville, Florida, and obtained membership application cards. On Sep-
tember 8, 1956, Harris returned to Fowler cards signed by these four
employees. Fowler attempted to reach Weinstein by telephone but
was unable to do so at that time. Subsequently, on September 27,
Fowler wrote Weinstein, .with a copy to Harris,' advising that the
Union had been designated by a majority of the drivers as their bar-
gaining representative. Fowler requested a meeting for the purpose
of discussing contract terms. Later that day; Fowler succeeded in
reaching Weinstein by telephone. Weinstein told him he was leaving
for California the following week and would be unable to meet and
discuss contract terms until his return in October, but would contact
him relative to a date for such a discussion at that time. The follow-
ing day, September 28, Fowler wrote Weinstein confirming this con-
versation, and on October 2, Weinstein acknowledged receipt of this
letter.
Weinstein left for California about the 5th of October, and returned
approximately 3 weeks later. On October 26, after his return, Wein-
stein wrote Fowler stating that the drivers in question were employees
of Hudson and for that reason Pioneer could not recognize the Union.
Following receipt of this letter, Fowler, on October 31, telephoned
Fred W. Morris, Hudson's industrial relations director, informing
him of the drivers' designation of the Union as their bargaining rep-
resentative. Morris suggested that Fowler file with the Board a
petition for certification. By letter of November 1, Fowler formally
7 The letter sent to Weinstein carried the notation that a copy was being mailed to
Harris.
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
advised Morris of the drivers' designation, and requested a meeting.,,
Morris replied on November 5 with the same suggestion given on
October•31.` - • - - - 11
The Union filed a petition for certification on November 2, 1956,
and pursuant to an election agreement signed by Morris and a union
representative, an election by mail was conducted, the ballots being
mailed on November 21. Voting in the election were Harris, Thomas,
Miles, William M. Baker, Lowell Rodgers, and Jake Wright.' The
ballots, which were counted on December 6, showed 3 votes for the
Union and 3 against. By failing to receive a majority of the votes
cast, the Union lost the election. Thereafter, on December 7, the
Union filed objections to the election, asserting that Baker was a me-
chanic and a supervisor and not within the bargaining unit and thus
ineligible to vote. In his report to the Board issued on December 14,
the Regional Director recommended that the objections be overruled
on the ground that they constituted a post-election challenge. Cf.
William R. Whittaker Co., Ltd., 94 NLRB 1151; Mills Morris Co.,
107 NLRB No. 320 (unpublished). No exceptions were filed to the
Regional Director's report, and on January 2, 1957, the Board issued
its decision adopting the Regional Director's report and certifying
the results of the election.
1.' Interference, restraint , and coercion 10
As has been noted , drivers Harris, Thomas , Miles, and Boram
signed I union authorization cards early in September 1956. A few
days afterwards, Weinstein approached Thomas at the Hudson yard
and asked if he had signed a union card. Thomas replied that he had.
Weinstein then asked if he knew whether any of the other drivers had
This letter also carried the notation that a copy was being mailed to Harris.
e Prior to the election , Boram left Hudson's employment . He subsequently went to
work for Pioneer in its warehouse . By the time of the hearing in the instant case, none
of the other three union adherents remained in Respondents ' employment Harris, as
discussed infra, was discharged January 15, 1957 . Thomas quit in early January 1957,
and Miles quit in March 1957.
w The complaint alleged that Baker was a supervisor, and as such threatened employees
with reprisals for engaging in union activities . The record shows that Baker was carried
on Hudson 's payroll as a truckdriver , and in addition to those duties Baker worked as a
mechanic for Pioneer . Occasionally , in Weinstein 's absence , Baker would dispatch loads
or relay messages to Weinstein . In making such dispatches, Baker carried out the orders
of Hudson 's head accountant who determined the amount of the loads and the destinations.
The drivers operating the trucks were assigned generally regular runs by Weinstein. It
thus appears that the work performed by Baker in Weinstein 's absence was of a routine
nature and not such as to make Baker a supervisor . N. L. R. B. v. Quincy Steel Casting
Co., Inc, 200 F. 2d 293, 296 ( C A. 1), enforcing 97 NLRB 247 ; N. L. R. B. v. Whitin
Machine Works, 204 F. 2d 883 , 886 (C . A. 1), enforcing 100 NLRB 279. In the only
instance of apparent supervisory authority , Baker is alleged to have told Harris and
Thomas that he discharged driver Wright while Weinstein was in California because
Wright would not "haul local." Baker testified that Wright quit. Immediately upon
Weinstein 's return, Wright was put back to work, Weinstein promising him that Baker
"would have nothing to do in bossing ." Obviously, Baker had no plenary authority.
We find that Baker was not a supervisor , and we shall dismiss those allegations in the
complaint relating to Baker.
HUDSON PULP & PAPER CORPORATION 1453'
signed, and Thomas answered that, he preferred Weinstein learn that
from , the other drivers themselves. Three or four days later, Wein-
stein engaged Thomas in another conversation at the Hudson yard.
This time Weinstein asked Thomas if he knew what the union wage
scales were, and when Thomas replied that he did not know, Wein-
stein named some figures and asked Thomas if he thought those were
correct. Thomas again asserted that he did not know what the wage
scales were. , Weinstein then stated that if they were what he thought,
before he would "let the union come in" he would "park" his trucks.
On October 2 Weinstein approached Harris where Harris was wait-
ing for Baker to finish repairing his truck. Weinstein asked Harris,
as he had of Thomas, what the union rates were for drivers. Harris
replied that he believed this was a matter that had to be negotiated.
Baker spoke up saying that the rate was 71/2 cents a mile and $2.14 an
hour. Weinstein then said that before he would let the union come in,
he would sell the trucks, and that the drivers could all starve to death
as far as he was concerned.
On October 4, the day before he left for California, Weinstein gave
Miles a lift home from the Hudson yard. En route, the subject of the
union came up, and Weinstein asked Miles, "Are you going to vote
for the Union?" Weinstein added that he knew Miles had paid his
dues. After Miles told him that how he would vote "was none of
his business," Weinstein stated, "I know who started the union .. .
it was Harris and I don't know what I'm going to do with him."
On several occasions in the 2 or 3 weeks period before the union
election, Weinstein told Miles that if the Union succeeded he would
"sell the equipment and quit." Weinstein also told Miles several times
during this period "that he did not know what he was going to do with
Harris for bringing in the Union."
In November, before the Board election, in a telephone conversa-
tion with Thomas, Weinstein told Thomas that he did riot understand
why the men wanted to bring the Union in, that he could not see where
it would help them, and that if the drivers "wanted to get together
and set up seniority". among themselves and "forget this union thing,
he would see it was done." Weinstein added, "Sometime we jump
hasty into things."
Before the election, Hudson's industrial relations director, Fred M.
Morris, left word at the Hudson gate for Thomas to see him. When
Thomas appeared at Morris' office, Morris stated, "I see you boys got
a union coming up." Thomas replied that they had. Morris then
asked Thomas if he thought it was "going to come in." When Thomas
answered that he did not know, Morris referred to a sheet listing the,
names and addresses of the drivers and said, "Let' s see now, .. .
Harris is for it and you are for it ... Mr. Boram is for it, I under-
stand." "Who else is for it?" Thomas answered that he did not know,
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adding, "You:.seem°to:have the, information .there-yoursel,f.<'°Xorris
checked Thomas' address with. him and then ended the meeting by
slapping Thomas on the back and saying, "Well, I hope you • boys
luck."
Morris similarly summoned Miles to his office in November before
the election. On this occasion, Morris sought to learn from Miles
why the drivers wanted a union."
Conclusions as to Interference, Restraint,-and Coercion
On the basis of the foregoing facts, we find that the Respondents,
by Weinstein's : (1) interrogation of Thomas concerning his union
membership and his attempt to elicit from Thomas the names of other
employees who had joined the Union; (2) threats to Thomas, Harris
and Miles that Pioneer would cease operating its trucks if the Union
was selected as the drivers' bargaining representative; (3) interroga-
tion of Miles as to how he would vote in the election; (4) statements
to Miles implying retaliatory measures would be taken against Harris
for Harris' "bringing in the union"; and (5) statements to Thomas
to the effect that if the drivers would abandon their union activities,
Weinstein would agree to any seniority arrangement the men worked
out among themselves, interfered with, restrained, and coerced em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act
in violation of Section 8 (a) (1) of the Act. We further find that
Respondent Hudson independently violated Section 8 (a) (1) of the
Act by Morris' interrogations of Thomas and Miles as to who had
joined the Union and why the drivers wanted a union.
- B. The discharge of Harris
1. Harris' employment record with Respondents
Prior to his last employment with Respondents from which he
was discharged on January 15, 1957, Harris had several previous .
periods of employment as a driver of Pioneer trucks. He was first
employed by Weinstein for Pioneer in November 1935, when that
company was operating as a contract carrier in Pennsylvania, and
it Both Weinstein and Morris denied having engaged in the conversations with em-
ployees as related above . The Trial Examiner, however, discredited their denial and
accepted as true the testimony of Thomas, Miles, and Harris on which the above findings
are based . The Respondents have attacked these credibility resolutions . The Board is
reluctant to disturb such resolutions for the reason that the Trial Examiner, unlike the
Board, has the opportunity to observe the depoitment and demeanor of the witnesses as
they appear before him. Therefore , the Board does not overrule a Trial Examiner's
resolutions as to credibility unless it clear preponderance of all the relevant evidence
convinces the Board that such resolutions were incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544, enforced 188 F 2d 362 (C A. 3) ; Universal Camera Corp, 340 U S.
474, 494-497 Upon the entire record such conclusion is not warranted here, and we
have, accordingly , adopted the Trial Examiner 's credibility findings.
HUDSON PULP & PAPER CORPORATION 1455
worked off and on as an over-the:'road driver. Following his - dis-
charge from military service in 1947, Harris, at Weinstein's request,
went to, work on Hudson's payroll at Palatka, Florida, as an over-
the-road driver of Pioneer trucks. This employment continued until
January 1951 when a dispute between Pioneer and Hudson over rates
caused Weinstein to remove Pioneer's trucks from the Hudson opera-
tion, resulting in a layoff of Harris. About 2 months later, Wein-
stein returned the trucks to Hudson and asked Harris to return to
work. Harris at first declined, but in July 1951, following a second
request, Harris went back to work as a Hudson driver. In April
1953 Weinstein again took off Pioneer's trucks, which resulted in
Harris' termination. In June 1954, when he was working for Hudson
as a laborer, Harris heard of an opening with Pioneer and applied
to Weinstein for the job. Weinstein immediately put him to work
as a Hudson driver. Harris worked as a Hudson driver continuously
under Weinstein's supervision from that time until his discharge
on January 15, 1957.
2. Respondents' explanation of Harris' discharge
Respondents asserted that the discharge of Harris on January 15
was not because of Harris' activities on behalf of the Union, as
alleged in the complaint; rather, Respondents contend, Harris was
properly discharged for "tearing up equipment."
Harris had been accused by Weinstein at various times of damaging
tires, and on the occasion of his last over-the-road run before his
discharge, Harris allegedly blew out two tires backing over railroad
tracks. The principal reason, however, advanced for Harris' dis-
charge is Respondents' assertion that Harris "intentionally and
knowingly drove his truck with the engine not in proper working
order and seriously damaged it."
On October 10, 1956, at the time Weinstein was in California,
Harris' tractor (tractor No. 2) developed considerable vibration
as he was returning from a run to Chicago. Harris had the engine
checked by the service manager of the Hartman-White Company in
Nashville, Tennessee, and it was determined that the counterbalance
had worked loose on the crankshaft. In accordance with instruc-
tions to secure authorization for repairs exceeding $25, Harris
attempted to reach Baker in Palatka by telephone. After five such
calls to Palatka on October 10, 11, and 12, in which Harris left
messages for Baker, Baker finally returned Harris' calls on October
12 and authorized the expenditure for repairs. The repairs were
completed on October 15 and Harris resumed his trip to Palatka.
To meet living expenses during his 51/2 day stay in Nashville, Harris
had to borrow $40_from the Hartman-White Company, which amount
that company included in its bill to Pioneer.
0
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After his return from California, Weinstein required Harris to
repay the $40 and he instructed Harris that thereafter anytime a
truck broke down he was to "drive it until it stops running and
then get in the best way" he could. Harris replied, "That's exactly
what I will do from here on."
In December, Harris was dispatched to Milwaukee and again
assigned tractor No. 2 for this run. There was some vibration in the
tractor when Harris started this run. On his return, at a point be-
tween Nashville and Chattanooga, the counterbalance again worked
loose causing increased vibration in the front end of the motor. This
time, instead of stopping, Harris determined to follow Weinstein's
instructions and drive the truck on to Palatka. ' Harris testified that
he "thought it should have been repaired in Chattanooga., but [he]
could not afford to sit there and wait for it to be repaired another five
and a half days and . . . could not afford that financial disburse-
ment." Harris continued driving for about 18 hours, arriving in
Palatka around 10 or 11 o'clock p. m. December 21. He made no
report on his arrival of the tractor's condition nor did he attach any
written note of this on the tractor's ignition key.
Harris testified that on his way to the Hudson mill the following
morning, he observed tractor No. 2 proceeding north from the Hudson
mill pulling a loaded trailer. He stated that he reported to Weinstein
that morning "that the truck needed some work on it," that it "was
throwing a lot of vibration out of that front end," and that Weinstein
said, "It's too late now. It's gone."
Harris further testified that the next time Weinstein said anything
to him concerning tractor No. 2 was on December 24. On this occa-
sion Weinstein asked Harris "why the hell [he] hadn't stopped and
had that thing fixed." Harris replied that he "had orders not to,"
and that he, Weinstein, gave him those orders. Weinstein said, "Well,
you know better than that." Harris replied, "Certainly I do, but I am
following orders like I am told. . . . I have been threatened and
threatened and now I am following orders. . . ."
Nothing further was said to Harris concerning this incident until
his discharge on January 15, 1957, when Weinstein told him he was
being discharged for. "tearing up equipment." Harris had had no
difficulty with any other equipment from the time he returned with
tractor No. 2 on December 21 until his discharge. In this interim,
Harris had made an over-the-road trip, having been dispatched to
Miami on December 26 and returning to Palatka on December. 27.
Contrary to the position of the General Counsel, Respondents
contend that tractor No. 2 was not dispatched after Harris returned
it on December 21, but that Harris' driving the tractor when he
should have stopped for repairs so damaged the motor that the instal-
lation of a new one became necessary, and one was subsequently
0
HUDSON PULP & PAPER CORPORATION 1457
installed. We find it unnecessaryto decide here whether a new motor
was ever actually installed in this tractor. It may be that at sometime
subsequent to Harris' 'eturn on December 21 this was actually' done. 12,
We do find,, however, that, contrary to Respondents, tractor No. 2
did not remain idle following Harris' Milwaukee run; but was in fact :
dispatched on another run the following morning . Our finding here
is based upon, the credited testimony of Harris who observed this
tractor beginning the run and his conversation with Weinstein con-
firming this fact. We accordingly reject the Respondent's contention
that the motor was so badly damaged by Harris that it had to be
replaced.
Conclusions as to Harris' Discharge
Upon this record, we are convinced that in discharging Harris,
Weinstein was not motivated by any supposed abuse of equipment by
Harris; rather, we are persuaded that the reason advanced by'
Weinstein-"tearing up equipment"-was but, a pretext, and that
Harris was actually discharged because 'of his - activities on
behalf of the Union. We note iii particular : (1) the hostility of- Re-
spondents to the Union as evidenced by our findings of interference,
restraint, and coercion; (2) Respondents' knowledge of Harris' lead-
ership in the Union's campaign as shown by the appearance of Harris'
name on the Union's written requests to Respondents for recogilition,
and Weinstein's remarks to Miles; (3) Weinstein's'statements to Miles
indicating that he intended to take some action against Harris for
"bringing in the union";,and (4) the delay of over 3 weeks following
Harris' Milwaukee run before the Respondents discharged Harris.
Accordingly, we find that the Respondents discriminatorily discharged
Harris in violation of Section 8 (a), (3) and (1) of the Act. ,
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set ' forth in section III, above,
occurring ' in connection "with the' operations of the Respondents de-'
scribed in section I;'above, have a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the several States and tend
tolead to labor disputes burdening and obstructing commerce and the
free flow of commerce. '
'-2 Respondents move to reopen the record for the sole purpose of permitting them to
introduce into evidence a memorandum invoice covering the installation of a truck
engine. Even ' if we accept the Respondents' contention that a new engine was installed
in tractor No. 2, the record , would still require us to find that hostility to Harris because
of his union membership and activities was the motivating cause of his discharge.
Accordingly, apart from the absence of any showing that the proffered documentary
evidence could not have been produced at the hearing by the exercise of due diligence, we
do not believe that a reopening is warranted . Missouri Transit Company, et at., 116
NLRB 587, 589-590. This motion is denied.
487926-59-vol. 121-93
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair
labor practices, we shall order them to cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of
the Act.
Specifically, we have found that the Respondents engaged in certain
acts of interference, restraint, and coercion, and we shall order them
to cease and desist from such conduct.
We have also found that the Respondents discriminated against
Enon M. Harris by discharging him because of his union activities.
We shall, therefore, order that the Respondents offer to him immediate
and full reinstatement to his former or substantially equivalent posi-
tion without prejudice to his seniority and other rights and privileges,
and make him whole for any loss he may have suffered because of the
discrimination against him by payment of a sum of money equal to
the amount he normally would have earned as wages from the effective
date of his discharge to the date of the offer of reinstatement, less his_
net earnings during said period, with back pay computed on a quar-,
terly basis in the manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289. We shall also order the Respondents to
make available to the Board, upon request, payroll and other records
to facilitate the checking of the amount of back pay due.
Upon the basis of the foregoing findings of fact, and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Truck Drivers, Warehousemen and Helpers Local No. 512, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, is a labor organization within the meaning of
Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Enon M. Harris, the Respondents have engaged in and are
engaging in unfair labor practices within the meaning of Section
8 (a) (3), and (1) of the Act.
3. By interfering with, restraining, and coercing employees in the
exercise of their rights guaranteed in Section 7 of the Act, the Re-
spondents have engaged in and are engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
4. The foregoing unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act. >
5. William M. Baker is not a supervisor within the meaning of
Section 2 (11) of the Act.
HUDSON PULP & PAPER CORPORATION 1459
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondents, Hudson Pulp & Paper
Corporation and Pioneer Transportation Service, Inc., their officers,
agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Truck Drivers, Warehousemen
and Helpers Local No. 512, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, or in any other
labor organization, by discriminating in regard to the hire or tenure
of employment of employees of Hudson, except to the extent per-
mitted by Section 8 (a) (3) of the Act.
(b) Interrogating employees concerning their membership in, or
activity on behalf of, Truck Drivers, Warehousemen and Helpers
Local No. 512, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, or any other labor organization,
in a manner constituting interference, restraint, or coercion in viola-
tion of Section 8 (a) (1) of the Act; threatening'to cease bilsiness if
the employees vote for union representation; threatening employees
with economic reprisals because of their union membership or activi-
ties ; and promising benefits to employees for abandoning union
activity.
(c) In any other manner interfering with, restraining, or coercing
employees of Hudson in the exercise of the rights guaranteed by Sec-
tion 7 of the Act, except to the extent permitted by Section 8 (a) (3)
of the Act. -
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Enon M. Harris immediate and full reinstatement to
his former or substantially equivalent position without prejudice to
seniority or other rights and privileges previously enjoyed, and jointly
and severally, and in the manner set forth in section V, above, entitled
"The Remedy," make him whole for any loss of pay he may have suf-
fered because of the discrimination against him. - -
(b) Preserve and make available to the Board or its ,agents, upon
request, for examination and copying, all payroll records, social-secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of back pay due and
the rights of employment under the terms of this Order.
(c) Post at Respondent Hudson's plant at Palatka, Florida, copies
of the notice' attached hereto as Appendix." Copies of the notice, to
13 In the event that this Order is-enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be furnished by the Regional Director for the Twelfth Region, shall
be posted by Respondents immediately upon their receipt, after being
duly signed by an official representative of each Respondent. When
posted, they shall remain posted for sixty (60) consecutive days there-
after in conspicuous 'places, including all places where notices to
drivers are customarily posted. Reasonable steps shall be taken- by
the Respondents to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for the Twelfth Region, in writ-
ing, within ten (10) days from the date of this Order, what steps have
been taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges that the Respondents by W. M. Baker
engaged in conduct violative of the Act.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify all employees of Hudson Pulp &
Paper Corporation that :
WE WILL NOT discourage membership in Truck Drivers, Ware-
housemen and Helpers Local No. 512, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
or in any other labor organization, by, discriminating in regard
to the hire or tenure of employment of employees, except to the
extent permitted by Section 8 (a) (3) of the Act; by interrogat-
ing employees concerning their membership in, or activity on be-
half of, said labor organization, or. any other labor organization,
in a manner constituting interference, restraint, or coercion in
violation of Section 8 (a) (1) of the Act;- by threatening to cease
business if the employees vote for union representation; by
threatening employees with economic reprisals because of their
union membership or activities ; or by promising benefits to em-
ployees for abandoning union activity.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act, except to the extent permitted by Section 8 (a)
(3) of the Act.
WE WILL offer to Enon M. Harris immediate and full reinstate-
ment to his former or a substantially equivalent position without
KRAMER BROS. FREIGHT LINES,- INC:, 1461
prejudice 'to seniority or other rights and privileges previously
enjoyed, and, make him whole, for any loss of earnings suffered
as a result of the discrimination against him.:
HUDSON PULP & PAPER CORPORATION.
PIONEER TRANSPORTATION SERVICE, INC.
Dated---------------- By_-------------------------------------
(Representative of Hudson ) ' , ( Title)
Dated----------- ----- By---------------- --------------------
(Representative of Pioneer ) 1' (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or 'covered by any other material.
Kramer Bros . Freight Lines,'Inc., and Joseph DeLisio, Charles'R.
Elwood, Merle L. Cable , Arthur Jones, Frederick F. Fink,
Robert A. Cable , Edwin Gaebel and International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local 249,1 Party to the Contract
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen . and Helpers of America , Local 2491 and Charles R.
Elwood , Edwin 'GaebeI , Merle L. Cable, Arthur Jones, Fred-
erick F. Fink , Robert A. Cable and Kramer Bros. Freight Lines,
Inc., Party to the Contract . Cases Nos. 6-CA-1034, 6-CA-1087,
6-CA-1088,6-CA-1088-116-CA-1089, 6-CA-1089-1,6-CA-1089-3,
6-CB-358, 6=C•B-358-1, 6-CB-359, 6-CB-359-1, 6-CB-359-2, and
6-CB-359-3. October 02; 1958 1
DECISION AND ORDER
On November 29, 1957, Trial Examiner James A. Corcoran issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents, Kramer Bros. Freight Lines, Inc., and International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Local 249, engaged in and were engaging in certain un-
fair labor practices and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the Respond-
ents and the General Counsel, respectively, filed exceptions to the
Intermediate Report and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error' was committed.
' The Board having -been notified by the AFL-CIO that it deems the Teamsters ' certifi-
cate of affiliation revoked by convention action , the identification of this Union is hereby
amended. .
121 NLRB No. 182.