Hvidsten Transport

National Labor Relations Board - Board Decisions

Apr 14, 1949

82 N.L.R.B. 1236 (N.L.R.B. 1949)

In the Matter Of CARL HVIDSTEN, DOING BUSINESS AS HVIDSTEN TRANS-
PORT and GENERAL DRIVERS AND WAREHOUSE EMPLOYEES, LOCAL
UNION No. 581
Case No. 18-CA-14.- Decided April 14, 19.49
DECISION
AND
ORDER
On July 26, 1948, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices in violation of Section 8 (a) (1), 8 (a) (3), and 8 (a)
(5) of the National Labor Relations Act, as amended, and recom-
mending that he cease and desist therefrom and take certain affirma-
tive action, as set forth in the copy of the Intermediate Report
attached hereto. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint, and recommended dismissal of these allegations. There-
after, the Respondent filed exceptions to the Intermediate Report and
a supporting brief.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the Respondent's exceptions and supporting brief, and the
entire record in the case, and hereby adopts those findings, conclusions,
and recommendations made by the Trial Examiner that are consistent
with our findings, conclusions, and order hereinafter set forth.
1. The Trial Examiner found that the Respondent unlawfully dis-
charged Waldo Johnson, Ervin Schooler, Ralph Scott, Wilfred Berg-
quist, Joe Poppenhagen, Ernest Ortlepp, and Clifford Hamre, and
thereby violated Section 8 (a) (1) and 8 (a) (3) of the Act. We do
not agree.
During most of 1947 the Respondent conducted his transport activi-
ties from terminals located in Detroit Lakes, Minnesota, and Grand
i Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations
Board has delegated its powers in connection with this proceeding to a three-man panel
consisting of the undersigned Board Members. [Chairman Herzog and Members Houston
and Murdock].
82 N. L. R. B., No. 144.
1236
HVIDSTEN TRANSPORT 1237
Forks and Fargo, North Dakota.2 On or about October 1 the Detroit
Lakes terminal was closed down, and the employment of Johnson,
Scott, Bergquist, Poppenhagen, Ortlepp, and Hamre, as well as others
who were operating out of that terminal, ended. Also separated
from the Respondent's employ was Schooler, who was previously
attached to the same terminal but was then operating out of the Fargo
terminal.3
The Trial Examiner found that the decision to abandon the Detroit
Lakes terminal, antedating the advent of the Union, was prompted by
business considerations, but concluded that had it not been for anti-
union considerations, viz, the desire to undercut the Union's asserted
majority and thus ensure the defeat of the Union in the election which
it was seeking among the Respondent's truck drivers, the individuals
concerned herein would have been retained 4 The record is, however,
devoid of any direct proof of anti-union motivation in these termina-
tions and the finding of such motivation is therefore bottomed only on
inference. The Trial Examiner's rationale appears to be that, as the
reasons given by the Respondent were in his opinion unconvincing, it
follows that the alleged discriminatees must have been deprived of
their jobs because of their union membership activity.
We are unable, however, to draw such an inference from the facts in
this case. The record is singularly lacking in evidence that the
Respondent was hostile to the Union. Noteworthy in this connection
is the failure of the complaint to allege independent acts of restraint
and coercion on the part of the Respondent. Nor does it appear that
the alleged discriminatees were, in general, leading figures in the union
activity at the Respondent's terminals. Except for Schooler, who
secured the signatures of six employees to union designations, the union
activity of these employees consisted, at the most, of signing designa-
tion cards or applying for membership in the Union. And even this
item loses its significance when weighed against the facts that the
jobs of the affected employees were concededly eliminated by the shut-
down of Detroit Lakes and that union adherents at other terminals
were not terminated. .
Moreover, with particular reference to certain of the alleged dis-
criminatees who were operating out of Detroit Lakes at the time of
their severance, we find other evidence in the record which argues
2 Detroit Lakes is approximately 50 miles from Fargo and 125 miles from Grand Forks.
3 Johnson and Scott were terminated on September 30; the others, on October 1. As
appears in the Intermediate Report, the Trial Examiner found that all these employees
except Hamre were discharged outright , and that the violation in the case of Hamre
consisted of failing to call him to work after October 1.
4 According to the Trial Examiner, Poppenhagen, who declined to move from Detroit
Lakes , would have been given work in the Detroit Lakes area ; the other alleged discrimi-
natees operating out of Detroit Lakes would have been transferred to the terminal in
Fargo , and Schooler would have been provided with further employment at Fargo
838914-50-vol 82-79
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against a finding of anti-union animus. Illustrative are the conversa-
tions with Ortlepp and Schooler just before their respective discharges
in which the Respondent expressed his desire that each of them move
to Fargo, and volunteered to help Ortlepp find living quarters there.
There is also Scott's admission on cross-examination that his employ-
ment was terminated after he had refused to move to Fargo because the
Respondent would not guarantee or assure him a minimum amount of
work.5 Furthermore, the Respondent's failure to call Hamre to work
after October 1, is, on all the facts, just as consistent with a conclusion
that the Respondent acted in that manner because he believed that
Hamre was no longer interested in his jobs We therefore conclude
that the evidence is insufficient to establish that Johnson, Scott, Berg-
quist, Poppenhagen, Ortlepp, and Hamre were unlawfully discharged.
As already noted, Schooler was the only one of the alleged dis-
criminatees who was working at Fargo at the time of his termination.
The Respondent's position, which the Trial Examiner rejected, is that
Schooler was discharged because he failed to comply with a request
that he establish himself in Fargo. We are of the opinion that the
weight of the evidence supports that position. Thus, the record shows
that when Schooler was hired about 5 weeks before his discharge, he
was told that he would have to work out of the Fargo terminal, and
was asked to sell his Detroit Lakes house and move to Fargo. Schooler
expressed unwillingness to sell the house, in which he and his father
lived, but agreed to take a room in Fargo. Instead of doing this, how-
ever, be quartered himself in the Fargo terminal bunkhouse and con-
tinued to live in these accommodations until his discharge. It is plain
that his behavior in this respect was not a compliance with the
Respondent's request that he establish himself in Fargo, for there is
evidence in the record, not appearing in the Intermediate Report,
which shows that the terminal bunkhouse was not considered as "living
quarters," but "strictly an emergency place where a fellow can sleep
over night if he has no other hotel room in town or other accommo-
dations." In these circumstances, including the absence of a showing
of anti-union animus on the Respondent's part, we conclude that
Schooler's discharge was caused by his uncooperativeness rather than
by his union activity.'
5 It does not appear that such an assurance was given any other employee.
0 The record reveals In this connection , that on October 2, when the Fargo terminal
supervisor , in a telephone conversation with union steward Clayton, asked if there was
anybody available at Detroit Lakes to take out a load , Clayton replied that the "boys were
not going out until Mr Hvidsten got this thing straightened " Hamre never communicated
with the Respondent thereafter regarding further employment.
' Unlike the Trial Examiner , we are unable to attach overriding significance to the fact
that the Respondent did not present Schooler with an ultimatum to either move to Fargo
or face the loss of his job.
HVIDSTEN TRANSPORT 1239
On the entire record, we therefore find, contrary to the Trial
Examiner , that the Respondent did not discriminate in regard to the
hire or tenure of employment of Johnson, Scott, Bergquist, Poppen-
hagen, Hamre, Ortlepp, and Schooler, and we shall accordingly dis-
miss the complaint as to them.
2. Manifestly, because the discharges herein were not unlawfully
motivated, any impact which they may have had on the Union's
majority status is fortuitous and beyond the reach of the Act. We
therefore reject the Trial Examiner's finding of a violation of Section
8 (a) (5) which is predicated on the theory that by making these
discharges the Respondent foreclosed the Union from being able
to prove its majority.
Accordingly, we shall dismiss the complaint in its entirety.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint issued herein against
the Respondent, Carl Hvidsten, doing business as Hvidsten Transport,
be, and it hereby is, dismissed.
INTERMEDIATE REPORT
Mr. Clarence A. Meter, for the General Counsel.
Mr. M. G. Lindemann , of Grand Forks , N. Dak ., for the Union.
Messrs. R. S . Felhaber and John J. Ryan, of St . Paul, Minn., for the Respondent.
STATEMENT OF THE CASE
Upon an amended charge dated February 12, 1948, filed by General Drivers
and Warehouse Employees , Local Union No. 581 , herein called the Union, the
General Counsel of the National Labor Relations Board , herein called the General
Counsel , issued a complaint dated April 13, 1948, against Carl Hvidsten, an in-
dividual doing business as Hvidsten Transport , herein called Respondent , alleg-
ing that Respondent had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (a) (1), (3 ), and (5), and
Section 2 ( 6) and ( 7) of the National Labor Relations Act,' herein called the
Act. Copies of the amended charge, the complaint , and a notice of hearing, were
duly served upon Respondent and the Union.
With respect to unfair labor practices, the complaint alleged in substance (1)
that since on or about October 1 , 1947, and all times thereafter , Respondent in
violation of Section 8 (a) (5) of the Act refused to bargain with the Union
although the Union then was, and at all times since has been , the exclusive
bargaining representative of Respondent 's employees in an appropriate unit;
(2) that in October 1947 , Respondent , in violation of Section 8 (a) (3) of the
Act, discharged Ervin Schooler , Waldo Johnson, Ernest Ortlepp, Ralph Scott,
1 49 Stat. 449, as amended by the Labor Management Relations Act, 1947 (P. L. 101-
80th Congress , 1st Sess.)
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wilfred Bergquist, Clifford Hamre, Joe Poppenhagen, and Ralph Clayton, because
they joined and assisted the Union; and (3) that by these acts Respondent, in
violation of Section 8 (a) (1) of the Act interfered with, restrained, and coerced
his employees in the exercise of rights guaranteed them by Section 7 of the Act.
Pursuant to notice, a hearing was held in Detroit Lakes, Minnesota, on May
18, 19, and 20, 1948, before Wallace E. Royster, the undersigned Trial Examiner
duly designated by the Chief Trial Examiner. The General Counsel and
Respondent were each represented by counsel ; the Union by one of its agents.
All parties participated in the hearing and were afforded full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues.
At the opening of the hearing, counsel for Respondent, by way of answer,
denied on the record that the Union had requested Respondent to bargain, asserted
an affirmative defense as to each allegation of discriminatory discharge ; and
denied the commission of any unfair labor practices.
Also at the opening of the hearing, the General Counsel moved to amend
the complaint to allege that one Floyd Anderson was discharged on October 2,
1947, in violation of Section 8 (a) (3) of the Act. More than 6 months having
elapsed since that alleged incident,' the motion was denied.
A motion by Respondent's counsel to dismiss the complaint was denied. A
motion by the General Counsel to conform the pleadings to the proof was
granted, without objection. At the conclusion of the hearing both counsel
argued on the record. Permission to file briefs was not requested and none
have been received.
Upon the entire record in the case, and from my observation of the witnesses,'
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is an individual engaged in the transport of petroleum products
from Minneapolis, Minnesota, St. Paul, Minnesota, Fargo, North Dakota, and
Grand Forks, North Dakota, to various points located in the States of Minne-
sota, North Dakota, and South Dakota. In addition, Respondent upon occasion
transports grain from Minnesota and North Dakota points to Superior, Wis-
consin, and livestock from North Dakota to points in Minnesota and Nebraska.
Since October 1947, only a small percentage of petroleum hauls have originated
in or near Minneapolis and St. Paul, Minnesota. Respondent's principal routes
since that month have extended from Fargo to North Dakota points and from
Grand Forks to North Dakota and Northwest Minnesota points. Respondent
operates under certificates issued by the Interstate Commerce Commission and
by the appropriate authorities in Minnesota and North Dakota.
II. THE ORGANIZATION INVOLVED
General Drivers and Warehouse Employees, Local Union No. 581, affiliated
with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, A. F. of L., is a labor organization admitting to member-
ship employees of the Respondent.
7 See the pertinent proviso in Section 10 (b) of the Act.
3 Excepting Arthur Waldon, Jr., whose testimony, by stipulation, was taken before a
Notary Public in Minneapolis , Minnesota, on May 26, 1948.
HVIDSTEN TRANSPORT
III. THE UNFAIR LABOR PRACTICES
1241
A. The context in which they occurred
From headquarters in Grafton, North Dakota, Respondent directs his business
operations located, principally, in North Dakota and Minnesota . During the
war years, because of the large quantities of petroleum products he was
transporting from the vicinity of Minneapolis, he established a terminal at
Detroit Lakes, Minnesota, as a convenient relief point for his drivers. Termi-
nals also were maintained in North Dakota, at Fargo and Grand Forks.
With the completion of a pipe line to Fargo, hauls from Minneapolis and St.
Paul became less frequent and the need for the Detroit Lakes terminal
diminished. During the spring and summer of 1947, the drivers were advised
on several occasions that the Detroit Lakes terminal would be abandoned and
that they would work on routes out of Fargo or Grand Forks. Shortly after
October 1, this change was accomplished. Most of the drivers who had worked
out of Detroit Lakes were separated from Respondent's employ under circum-
stances that are disputed.
B. The attempt to bargain
1. The appropriate unit
The complaint alleges, and Respondent denies, that a unit composed of all
Respondent's drivers, excluding supervisors, is appropriate. In September 1947,
such employees had headquarters in Detroit Lakes, Fargo, and Grand Forks.
Since sometime in October 1947, they have been located at the two latter points.
The function of the drivers is, of course, to pilot Respondent's trucks and
tractors under the eventual supervision of Carl Hvidsten and more immediately
under supervisors at Fargo and Grand Forks. Other than driving these em-
ployees have no duty except, on occasion, to unload cargos and to make minor
repairs to their vehicles. All receive the same rate for similar work and
may be transferred from one terminal to another as Respondent' s business
requires. Respondent contends that the unit should include mechanics and
maintenance men but offered no evidence to support his position. Indeed, on
October 14, 1947, Respondent filed a petition for certification of representatives
with the Board in Case No. 18 RM-5, describing as appropriate a unit of "all
employees engaged in transport" excluding "supervisory and office" employees`
A unit of drivers has frequently been found by the Board to be appropriate ` and
is common in the industry.
I find that on September 28, 1947, and at all times material since, a unit of
Respondent's drivers, excluding supervisors was and is appropriate for purposes
of collective bargaining within the meaning of Section 9 (b) of the Act.
2. The Union's representation in the unit
Between the dates of September 20 and 29, 1947, 17 of Respondent' s drivers
applied for membership in the Union or designated it to represent them. The
4 Respondent' s objections to the unit advanced at the hearing are inconsistent with
the agreement for consent election which he signed in early November 1947 , and which
describes as appropriate a unit of "all drivers and driver helpers . . . except fore-
men . .
5 See Matter of Gulf Refining Company, 66 N. L. R. B. 142 , and Matter of Rutherford
Freight Lines, Incorporated, 59 N. L. R. B. 347.
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
17 constituted a majority of the 23 drivers at all terminals in Respondent's
employ on September 30.
On September 29, M. G . Lindemann , the Union 's business agent, telephoned
Hvidsten , advised him that the Union represented a majority of the drivers and
announced that he was filing a petition for certification of representatives under
the Minnesota Labor Relations Act. Lindemann did so but withdrew it on
October 21 . An arrangement for a consent election failed when Respondent
and the Union disagreed upon the eligibility date.'
The evidence as to the Union's majority in the unit was entirely undisputed
and was supported by testimony of a number of those who signed applications or
designations . The signatures of others was established by competent evidence.
I find, therefore, that on September 29, 1947, the Union represented a majority
of Respondent's employees in the appropriate unit.
Counsel for Respondent contended at the hearing that no demand for bargain-
ing was ever made upon behalf of the Union. Of course if this were so the
complaint that Respondent had unlawfully refused to bargain could not be
sustained .7 I am convinced and find , however, that Respondent 's position over-
looks the realities of the situation and disregards the clear understanding of
the parties. Indeed, in his answer, Respondent admits that on or about September
29, 1947, Lindemann requested an opportunity to discuss grievances in connection
with the removal of the terminal from Detroit Lakes. Further evidence that
Respondent understood that a request for recognition and bargaining had been
made is to be found in the petition which Respondent filed with the Board's
Regional Office under date of October 15, 1947 . The petition recites over the
signature of Hvidsten that the Union had claimed recognition on September 30.
This petition must be read in conjunction with Section 203.53 (b) (3) of the
Board 's Rules and Regulations , Series 5 which provides :
(b) A petition for certification, when filed by an employer, shall contain
the following :
(3) A brief statement setting forth that one or more individuals or labor
organizations have presented to the petitioner a claim to be recognized as
the exclusive representative of all employees in the unit claimed to be
appropriate; a description of such unit ; and the number of employees in the
unit.
Thus Respondent on that date sought to invoke the processes of the Board to
resolve a question concerning representation which he then affirmatively alleged
had arisen upon the Union 's demand for recognition and bargaining.
I find that the Union did on September 29, 1947, demand recognition and an
opportunity to bargain and that Respondent at that time entertained no bona fide
doubt as to the appropriateness of the unit. Of course Respondent was entitled
to withhold recognition until the Union established its claim of majority. The
General Counsel argues, however , that upon receipt of the Union 's claim, Hvid-
sten proceeded by means of discriminatory discharges to destroy the Union's
majority and thus to foreclose it from opportunity to demonstrate validity of
its assertion . The resolution of this issue depends upon the circumstances sur-
rounding the severing of the employment relation between Respondent and the
eight individuals named in the complaint : to which, this report is now addressed.
6 Respondent desired a date for eligibility which would have rendered ineligible to vote
those individuals whose discharges are alleged to have been discriminatory.
7 N. L. R. B v. Columbian Enameling & Stamping Co., Inc., 306 U. S 292 ( 1939).
HVIDSTEN TRANSPORT 1243
C. The alleged discharges
Ervin b'chooler was employed as a driver by Respondent on August 24, 1947.
Schooler testified credibly that Hvidsten advised him during the employment
interview of the impending abandonment of the Detroit Lakes terminal and that
Schooler would be required to work out of Fargo. For the first week of his
employment, however, Schooler worked out of Detroit Lakes and for the remainder
of his tenure, to September 30, out of Fargo. Schooler signed a designation for
the Union on September 20 and secured the signatures of six other drivers at
Fargo between then and September 30. On one occasion he secured the applica-
tion of driver Gerald Killian for membership in the Union in the presence of
Roland Monteith, Respondent's supervisor at Fargo e On September 30, according
to Schooler, Hvidsten advised him that there was insufficient work to keep the
more senior drivers busy and that, in consequence, he was "laid off." Schooler
has not since been offered employment by Respondent.
Hvidsten testified that he had no work for Schooler at Detroit Lakes and that
Schooler had refused to move to Fargo where his services were needed.
Hvidsten conceded that Schooler had worked out of Fargo but testified that he
did so only occasionally, returning, at times, to Detroit Lakes.
Schooler's father, who lived in Detroit Lakes during this period was ill and,
according to Schooler, required a companion to provide care in the event of
sudden relapse. Schooler admitted that on the occasion when he was hired,
Hvidsten stated that he would have to work out of Fargo and suggested that
Schooler "sell out" in Detroit Lakes and move to Fargo. According to Schooler,
he expressed to Hvidsten his unwillingness to dispose of his property in Detroit
Lakes but said that he would take a room in Fargo in order to be available for
work there. During September, Schooler did live in Fargo in sleeping quarters
provided for drivers by Hvidsten. It was in these quarters that Hvidsten told
him of his "lay off."
Waldo Johnson was employed as a driver in early January 1947, and worked
out of Detroit Lakes almost exclusively until his discharge on September 30,
1947. On the latter date Hvidsten advised him that due to an insufficiency of
work, he had "no further use" for Johnson. Johnson testified that he knew the
Detroit Lakes terminal was scheduled for abandonment but that he was never
advised of the effective date of this action and was never asked to move to Fargo
or Grand Forks. Johnson was and is unmarried , since his discharge he has
worked near Fargo, and testified that he would have been willing to move to
Fargo.
Ernest Ortlepp was hired as a driver in May 1945, and, until his discharge on
October 1, 1947, worked out of the Detroit Lakes terminal. In August 1947,
Hvidsten advised him that he eventually would have to move to Fargo.
During the last 2 weeks in September, Ortlepp had little work. On September
30, when en route from West Fargo to South St. Paul with a load of stock he met
Hvidsten in Fargo . According to Ortlepp, Hvidsten asked if he had made
arrangements to move to Fargo to which Ortlepp replied that he had not and
that he "didn't hardly figure on selling out and moving [his] family to Fargo at
that time." Hvidsten answered that he would see Ortlepp on the latter's return
from his trip to "fix up a deal and help [him] get a place to move."
At about 10 a. m. on October 1, Ortlepp returned to Detroit Lakes and there
encountered Hvidsten who said, "I haven't got enough work to keep you going.
6 Monteith testified that he had authority to hire and discharge . He did not advert
to the Killian incident in his testimony.
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I'll have to let you go." Ortlepp asked if he were at fault and Hvidsten
answered that he was not and offered to provide him with a recommendation.
Ortlepp has not worked for Respondent since.
According to Hvidsten, Ortlepp had frequently violated ICC regulations by
working longer than prescribed hours and driving more miles than the regula-
tions allowed. Thus, on October 1, realizing that Ortlepp had driven more than
X00 miles and had worked more than 16 hours without relief in contravention of
these regulations, Hvidsten discharged him. He conceded that he did not state
this reason to Ortlepp.
Ralph Scott was hired as a driver on May 1, 1945, and signed a union desig-
nation on September 20, 1947. On October 1, Hvidsten told him that there was
not sufficient work to keep Scott busy and that he was, on that account, laid
off. Hvidsten assured Scott that he had done a "good job" and hazarded that
he might be recalled if business justified. During this conversation, Hvidsten
asked if Scott would go to Fargo. Scott replied that he would if there was
work. Hvidsten then said that inasmuch as there wasn't "too much work,"
Scott would have to suffer at least a temporary lay-off.
Hvidsten testified that he sought Scott on October 1 for the purpose of send-
ing him on a trip. Before making his purpose known, however, he asked Scott if
he were willing to move to Fargo. According to Hvidsten, Scott replied that he
was unwilling to do so unless Hvidsten would guarantee him a certain income
regardless of need for his services. Hvidsten not being agreeable to such an
arrangement , advised Scott that he was laid off.
Wilfred Bergquist was hired in late August 1947, and worked out of the Detroit
Lakes terminal. At the time of hiring, he was told that the terminal would be
moved to Fargo and stated his willingness to work out of that city. According
to Bergquist, the question of moving was not thereafter put to him.
On October 1, he was informed by Hvidsten that business was slow and that he
was discharged . During the last week in September, Respondent having no
immediate need for his services, Bergquist worked as a driver for a few days for
another employer. According to Bergquist, John Peterson, Respondent 's foreman
at Detroit Lakes, gave permission for him to do so.
Hvidsten testified,' and Bergquist denied, that he was told at the time of hire
that the work would be temporary. Hvidsten testified further that on October 1,
he learned that Bergquist was working for a builder in Detroit Lakes and that
he was pleased to learn this having no work for Bergquist in any event.
Joe Poppenhagen was employed by Respondent as a driver from July 1944,
until his discharge on October 2, 1947. In the spring of 1947, Hvidsten asked if
he were interested in moving to Grand Forks or Fargo Poppenhagen replied
that he would be if he could find living quarters in either city. Thereafter in
June and August, he and Hvidsten attempted to locate a residence in Grand
Forks without satisfactory result. In mid-September, Poppenhagen moved from
temporary housing near Detroit Lakes to a residence in the city and entered
his children in the local schools. Upon learning this, according to Poppenhagen,
Hvidsten remarked, "We'll always have something out of Detroit Lakes . . . it
probably won't be too steady but it's a pretty good chance of a living anyway."
Poppenhagen denied having any further conversation with Hvidsten on the
subject of moving and denied that he was ever told he must move in order to
retain his employment.
On October 1, Poppenhagen was informed by Roland Monteith, Respondent's
dispatcher at Fargo, that a telegram had arrived from Hvidsten directing Pop-
penhagen's discharge because of a surplus of drivers. Poppenhagen has not
HVIDSTEN TRANSPORT 1245
since worked for Respondent. Hvidsten testified that he had attempted un-
successfully for 6 months to persuade Poppenhagen to move from Detroit Lakes
and that he finally told him in mid-August that he must move if he desired to
continue working. He further testified that when he learned, in September,
that Poppenhagen had rented a house in Detroit Lakes he told him, "I'm afraid
you can't work for us living in Detroit Lakes" to which Poppenhagen allegedly
replied, "We have paid a month's rent and we are not going to move." After
considering Poppenhagen's refusal to move, his alleged unwillingness to accept
an assignment on September 30, and his alleged refusal on other occasions to
drive upon request, Hvidsten testified, he decided to discharge him and did so
by telegram to Monteith.
Poppenhagen denied that he evinced unwillingness to make a trip on Sep-
tember 30 and there is no evidence that he did so on any other occasion. It is
clear, however, that he was not agreeable to moving from Detroit Lakes and, ac-
cepting his testimony as true, was ready to accept the prospect of lessened work
opportunity and smaller earnings in consequence. Thus, it cannot easily be
determined that he would have received work assignments after October 1, even
bad he not been discharged.
Clifford Hamre was hired as a driver on August 11, 1947, and last worked for
Respondent on October 1, following. According to Hamre, at the time of hiring,
nothing was said concerning the duration of his employment. After working
October 1, Hamre remained in Detroit Lakes until late November. During this
period, he was not called to work.
Hvidsten testified that on September 30, he discussed with driver Ralph Clay-
ton and dispatcher John Peterson the question of discharging Hamre because
there was no need for his services at Detroit Lakes. Both protested that Hamre
was a competent man and should not be let go. According to Hvidsten, he as-
sumed that Hamre would report to Fargo and took no action to effectuate a
discharge. There is no evidence that Hamre was ever requested to report to
Fargo or was ever again called to work.
Ralph Clayton was employed as a driver from May 1945, to October 2, 1947.
During this period he worked principally out of Detroit Lakes but occasionally
out of Fargo.
On October 1, Hvidsten asked him if he would move to Fargo and, when Clay-
ton answered that he would, it was agreed that Clayton would examine a house
in Fargo owned by Hvidsten. Clayton then made a trip to South St. Paul with
a load of stock returning to Detroit Lakes about 10 a. in. October 2. Upon his
return he had a telephone conversation with Monteith, the dispatcher at Fargo.
In the words of Clayton, "He asked for a cattle truck to be sent over to Fargo
right away and I told him that the boys weren't going out until Mr. Hvidsten
got this thing straightened, he let some of the drivers go, you know, old drivers
and there was nobody here to take it out."
Clayton testified that under ICC regulations, he could not make the trip.
That evening, according to Clayton, he returned to the Detroit Lakes terminal
for a tractor and tank in order to go for a load of fuel oil. The tank was missing.
Clayton then telephoned Monteith, explained that he could not locate the tank
which he needed for the trip and learned that the tank had been taken to Fargo.
Monteith suggested using another tank but Clayton asserted that the tanks avail-
able were not suitable. Clayton did not make the trip and was not again called
to work.
About a week later, Clayton met Hvidsten in Detroit Lakes and engaged him
in a conversation regarding the lay-offs and discharges. Hvidsten said it was
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"too bad it had to happen" and that some of them were good drivers while others
were not. Hvidsten went to say that "he'd just as soon" Clayton had continued
to drive to which Clayton rejoined that he did not think it right for him to
continue work after the others were laid off. According to Clayton, Hvidsten
said that Clayton should have let him know that trouble was "coming up" where-
upon Clayton answered that he "figured it wouldn't do much good" as the drivers
had talked to Hvidsten on a previous occasion without gaining anything'
Other evidence bearing upon the discharges
John Peterson, for about 30 months preceding September 30, 1947, was the
dispatcher at the Detroit Lakes terminal. Peterson's duties entailed assigning
nien and equipment as the business of Respondent from that terminal necessitated
and included authority to hire and discharge drivers.
Sometime in the winter of 1946, according to Peterson's undenied and credited
testimony, Hvidsten suggested that Peterson move to Fargo. Peterson was
agreeable to the suggestion and made some effort to secure living quarters in
that city but without success. The subject of Peterson's move was discussed
between him and Hvidsten on a number of occasions without final decision until
early in September 1947, when Peterson advised Hvidsten that he intended stay-
ing in Detroit Lakes and had other employment starting October 1. Hvidsten
then said that the terminal would be closed on that date. Peterson was given
no instruction by Hvidsten concerning the necessity for the drivers to move
from Detroit Lakes and was not consulted at any time with respect to the sub-
sequent discharges." Peterson testified credibly that in conversations with the
drivers the subject of moving was mentioned but that he had never told them
when the terminal was to be closed.
Peterson also testified that no driver had ever refused to take a trip when
ordered to do so, that only once was a delay incurred due to his inability to locate
a driver (Poppenhagen) and that this delay of 30 minutes was not reported to
Hvidsten, that all drivers upon some occasion worked more than the 10 hours
daily allowed by ICC regulation without criticism, and that neither he nor, to
his knowledge, Hvidsten had criticized Johnson concerning an accident occurring
in the spring of 1947.
Conclusions concerning the discharges
In its answer Respondent asserted that :
Ralph Clayton and Clifford Hamre refused to work ; Ernest Ortlepp, Joe
Poppenhagen, Ralph Scott, and Waldo Johnson refused to move from De-
troit Lakes ; Wilfred Bergquist refused to move from Detroit Lakes and
secured other employment before September 30; and, Ervin Schooler was
employed only temporarily and refused to move from Detroit Lakes.
At the hearing, Hvidsten testified that he discharged Ortlepp for an additional
reason ; that Ortlepp had violated ICC regulations by working more than 10
hours and driving more than the prescribed mileage in a day. According to
Hvidsten, he took into account a similar violation when he determined to
discharge Johnson.
0 Clayton testified that he had reference to a grievance concerning pay for unloading
time which had been presented to Hvidsten in the winter of 1946. It is not clear that
Hvidsten understood this reference.
10 Except as already related as to Hamre.
HVIDSTEN TRANSPORT 1247
Of course, it is true that Respondent was under no duty to maintain a terminal
at Detroit Lakes for the convenience of his drivers and I am in no doubt that the
decision to abandon that terminal was motivated solely by economic factors.
It also must be conceded that Respondent had a right to insist that the drivers
make themselves available at Fargo or Grand Forks as a condition of further
employment. Upon a consideration of all the evidence and upon resolving the
conflicts in testimony, I am convinced that Respondent has not stated the true
reasons for the discharges, lay-offs, and failure to provide further employment.
Schooler knew that he must work out of Fargo and was doing so at the time
of his discharge when Respondent's need for drivers at Fargo was acute." True,
Schooler was living at Respondent's bunk house and Respondent may have pre-
ferred that he establish himself in his own quarters. However, it is reasonable to
assume that in consideration of Respondent's need for drivers, Hvidsten at the
very least would have said to Schooler, whose qualifications were not questioned,
"I need you to work out of Fargo and have employment for you at Detroit
Lakes. Establish yourself here or I will have to let you go." This was not done.
Indeed, at no time was Schooler given a real opportunity to-exercise a choice
between losing his employment and moving to Fargo. It is possible that Schooler
would have quit rather than do so but he was not put to such a test and testified
at the hearing that he was willing to make the move. Schooler's testimony that
moving to Fargo was never mentioned to him by Respondent subsequent to his
hiring is credited. His further testimony that he actively and successfully
solicited a number of drivers at the Fargo terminal to support the Union, on one
occasion in the presence of Foreman Monteith, is also credited.
Johnson's denial that he was ever asked to move from Detroit Lakes is
credited. I find that he was not discharged for refusal to move from Detroit
Lakes The further reasons advanced at the hearing, that he was involved in
an accident and had violated ICC regulations, are clearly afterthoughts. Johnson
was not criticized concerning the accident and thus the inference that he was not
at fault is a reasonable one. It is clear that most of the drivers occasionally
worked hours in excess of ICC regulations and that this practice was condoned.
Johnson applied for membership in the Union on September 22 but it does
not appear that he was outstandingly active in the ensuing organizing campaign.
Ortlepp was summarily discharged on the day following the occasion when
Hvidsten had promised to "fix up a deal and help [him] to get a place to move."
Hvidsten's explanation that Ortlepp had violated the ICC hours of work regula-
tion is not convincing and is rejected. Ortlepp had been a member of the Union
for a considerable period of time and testified, creditably, that Hvidsten knew
of his membership since all drivers who brought gasoline from New Brighton,
Minnesota, as Ortlepp did, were required to have such membership if they were
to be loaded at the dock or pipe line.
Ralph Scott clearly was discouraged from moving to Fargo by Hvidsten's state-
ment to him that be would not find much work there. Hvidsten's testimony that
Scott refused to move unless he was assured a stated income without regard to
the amount of work available is not credited.
Scott had been a member of the Union for some time prior to his discharge
and had signed a new designation on September 20.
u Hvidsten admitted that deliveries from the Fargo terminal were delayed from 1 to 5
days at about this time due to a shortage of drivers , that the shortage persisted throughout
the winter of 1947-48 , and that the business at Fargo increased steadily from October
1, 1947.
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bergquist's testimony that he was discharged by Hvidsten with the remark
that business was slow is credited. So, also, is his undemed testimony that he
had theretofore expressed willingness to move to Fargo. I am convinced, and
find, that Bergquist was not working in building construction at the time of his
discharge and that he did not so advise Hvidsten. Bergquist applied for mem-
bership in the Union on September 20.
Respondent's assertion that Hamre refused to work after about October 1 is
not supported by evidence. Indeed, Hvidsten admitted that he could cite no in-
stance of a driver at Detroit Lakes refusing an assignment. The record as to
Hamre is simply that after October 1 he was not called for service.
Hamre, already a member of the Union, signed a designation for that organi-
zation on September 20.
Poppenhagen certainly was requested on more than one occasion to move
either to Fargo or Grand Forks and, I find, clearly indicated his intention to
remain in Detroit Lakes in his conversation with Hvidsten in mid-September.
Even if he had not been discharged, it is questionable that he would have received
steady work from Respondent after the closing of the Detroit Lakes terminal.
The question to be determined, nevertheless, is whether he was discharged
because of his determination not to leave Detroit Lakes or because of a discrimi-
natory motivation. Crediting Poppenhagen's account of his conversation with
Hvidsten in mid-September, as I do, I find that Poppenhagen refused to move
from Detroit Lakes and that Hvidsten accepted his decision without advising
Poppenhagen that the decision would cost him his employment.
Poppenhagen, already a member of the Union, signed a designation card on
September 20. He was second in length of service among Respondent's drivers.
Clayton, I find, was never discharged but to the contrary, refused employment
that was offered him. His statement that ICC regulations prevented his taking
the cattle truck from Detroit Lakes to Fargo on the morning of October 2 is
contradicted by his driver 's log. According to that record, which Clayton sub-
mitted in the course of his employment, he had worked only 3 hours that day
before talking to Monteith and obviously could have driven to Fargo, a distance
of 50 miles, without approaching the 10-hour limitation. Clearly Clayton, as
steward for the Union, aligned himself with the men who had been discharged
and upon this occasion, at least, took the position that he would not work until,
"Mr. Hvidsten got this thing straightened." It does appear that he offered to
work the evening of that day and was prevented from doing so by unavailability
of equipment. Thereafter, however, Clayton appears to hate been, and I find
that he was, a striker. His conversation with Hvidsten on or about October 9
in which Clayton said he thought it improper to work after others were laid
off is further evidence supporting that conclusion.
I am convinced, and find, that upon learning of the Union's intention to secure
an election, Hvidsten determined to rid himself of a sufficient number of union
sympathizers to make its success in an election unlikely. No other theory
offers a reasonable explanation of his action in discharging Schooler, Johnson,
Ortlepp, Scott, Bergquist, and Hamre, none of whom, I find had refused to move
to Fargo, at a time when his need for their services at Fargo was pressing.
This is particularly apparent in the case of Schooler who at the time of his
discharge was actually working out of the Fargo terminal. This conclusion is
further supported by Hvidsten's disingenuous statements to these individuals
at the time of the discharges : that business was slack and that there was no
work for them and to Bergquist that there was little work at Fargo. Hamre
was ignored and merely not called again to work.
HVIDSTEN TRANSPORT 1249
Poppenhagen's situation is little different. Until the Union appeared, Hvidsten
was willing, for the present at least, to permit Poppenhagen to retain his em-
ployment and to remain in Detroit Lakes. I am convinced and find that the
Union's demand for bargaining motivated his discharge.
I find that Respondent discharged Schooler, Johnson, Ortlepp, Scott, Berg-
quist, and Poppenhagen and failed to call Hamre to work, thus in effect dis-
charging him, in order to weaken and destroy the Union, thereby discouraging
membership in the Union, and that Respondent thereby violated Section 8 (a)
(1) and (3) of the Act.
I find that Ralph Clayton was not discharged but on October 2, 1947, went on
strike in protest against Respondent's unfair labor practices. As an unfair
labor practice striker, Clayton is entitled to reinstatement upon demand and
Respondent must discharge, if necessary, any driver hired since October 2 in
order to provide work for him. Since, however, the case was not tried upon an
issue of unlawful refusal to reinstate I will recommend only that the allegation
that Respondent violated Section 8 (a) (3) of the Act with respect to Clayton
be dismissed.
The refusal to bargain
I have found that Respondent attempted to destroy the Union's majority by
discharging the seven drivers above named. Of course Respondent was entitled
to demand proof of the Union's claimed majority by any reasonable method in-
cluding the conduct of an election. By the discriminatory discharges, however,
it unlawfully made such a demonstration by the Union difficult if not impossible
and impressed forcibly upon the remaining drivers the danger of adhering to
the Union.
I find that Respondent on or about September 29, 1947, and all times since
that date has refused and now refuses to bargain with the Union as majority
representative of its employees in an appropriate unit and that Respondent
thereby violated and is violating Section 8 (a) (1) and (5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The acts of Respondent set forth in Section III, above, occurring in connection
with the operations of Respondent described in Section I, above, have a close
intimate, and substantial relation to trade, traffic, and commerce among the
several States, and such of them as have been found to constitute unfair labor
practices, tend to lead to, and have led, to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has committed unfair labor practices, I will
recommend that he cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent discriminatorily discharged Ervin Schooler,
Ralph Scott, and Wilfred Bergquist, I will recommend that Respondent offer
to each of them immediate and full reinstatement to his former or substantially
equivalent position at Fargo or Grand Forks, without prejudice to his seniority
or other rights and privileges and that Respondent make each whole for any
loss of pay he may have suffered by reason of the discrimination by payment
to each of a sum of money equal to the amount he would have earned as wages
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the date of discharge to the date of Respondent's offer of reinstatement
less his net earnings 12 during that period.
There is evidence, which I credit, that on October 8, 1947, Ralph Clayton,
Ernest Ortlepp, and Clifford Hamre in a conversation with George Fazel, one
of Respondent's drivers, attempted to persuade Fazel to cease working for
Respondent and left him with the warning, in Fazel's words, that "they was going
to do something to me if I didn't quit driving." Faze ] continued to work and
was never again approached in this fashion.
Arthur Waldon, Jr., a part-time driver for Respondent, testified credibly that
on an occasion in October 1947, Ortlepp and Johnson attempted to persuade
him to cease work for Respondent and although the conversation was friendly
in general tenor, warned him that drivers for other companies, sympathetic to
the Union's cause, might force him off the road. Later in the same month
Poppenhagen told Waldon that if he were looking for trouble he would "sure
get it" and Ortlepp and Johnson called him a scab, strikebreaker, and other
uncomplimentary names.
These incidents, Respondent contends, are of an intimidatory and coercive
nature and constitute sufficient basis for denying reinstatement to the individ-
uals concerned. The Board has refused to reinstate individuals because of
their conduct following their discriminatory discharges but in situations where
the conduct complained of was far more serious than that outlined here. These
incidents constitute for the most part legitimate persuasion accompanied at
the worst by non-specific general threats not supplemented in any way by action.
On none of the occasions did the conduct complained of amount to a breach of
the peace. I find that they do not constitute sufficient ground upon which to
deny reinstatement.13
I will recommend, therefore, that Respondent offer to Waldo Johnson, Clif-
ford Hamre, Ernest Ortlepp, and Joe Poppenhagen immediate and full reinstate-
ment each to his former or substantially equivalent position at Fargo or Grand
Forks without prejudice to his seniority or other rights and privileges and it
will further be recommended that Respondent make each whole for any loss
of pay suffered by reason of his discharge by payment to each of a sum of
money equal to the amount each would have earned as wages from the date
of his discharge to the date of the offer of reinstatement less his net earnings"
during that period.
Having found that Respondent has unlawfully refused to bargain with the
Union, I will recommend that Respondent, upon request, do so as the exclusive
representative of his employees in the appropriate unit in respect to rates of
pay, wages, hours and other terms and conditions of employment.
Clearly, Respondent has evidenced a disposition to interfere generally with
the rights of employees as guaranteed by the Act. I will therefore recom-
mend that Respondent cease and desist from, in any other manner interfering
with, restraining or coercing his employees in their right to self-organization "
It will further be recommended that the allegation of the complaint concern-
ing the discharge of Ralph Clayton be dismissed.
12 Matter of Crossett Lumber Company, 8 N. L. R. B. 440, 497-498
is See N L. R. B v. Stackpole Carbon Co , 105 F. (2d) 167 (C C. A 3, 1939).
14 See footnote 12, supra. In the case of Poppenhagen , I recommend that the period
subsequent to April 24, 1948, not be considered in computing his loss of earnings. By
letter dated April 14, 1948, Respondent expressed willingness to employ Poppenhagen at
Fargo or Grand Forks. While I do not regard the offer as one of reinstatement , it clearly
was an offer of employment and reasonably could have been accepted within 10 days.
15 See N. L R B. v. Express Publishing Co, 312 U. S. 426.
HVIDSTEN TRANSPORT 1251
Upon the basis of the foregoing findings of fact and upon the entire record,
I make the following :
CONcLu sIONs OF LAW
1. General Drivers and Warehouse Employees, Local Union No. 581, affiliated
with the American Federation of Labor, is a labor organization within the
meaning of Section 2 (5) of the Act.
2. All drivers employed by Respondent excluding all supervisors having au-
thority in the interest of Respondent to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other employees or responsibly
to direct them or to adjust their grievances, or effectively to recommend such
action, if in connection with the foregoing the exercise of authority is not of
a merely routine or clerical nature, but requires the use of independent judg-
ment, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
3. On or before September 29, 1947, General Drivers and Warehouse Em-
ployees, Local Union No. 581, was, and at all times since has been, the exclusive
representative of all the employees in the appropriate unit for the purposes of
collective bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing on September 29, 1947, to bargain collectively with General
Drivers and Warehouse Employees, Local Union No. 581, as the exclusive repre-
sentative of all the employees in the appropriate unit Respondent engaged in,
and now is engaging in, unfair labor practices within the meaning of Section 8 (a)
(5) of the Act.
5. By discharging Ervin Schooler, Waldo Johnson, Ernest Ortlepp, Ralph
Scott, Wilfred Bergquist, Clifford Hamre, and Joe Poppenhagen, thereby dis-
couraging membership in a labor organization, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (3)
of the Act.
6. By the above acts, Respondent interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed in Section 7 of the Act and thereby
engaged in and thereby is engaging in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
8. Respondent did not discharge Ralph Clayton in violation of Section 8 (a)
(3) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, I recom-
mend that Respondent, Carl Hvidsten, doing business as Hvidsten Transport, his
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in General Drivers and Warehouse Employees,
Local Union No. 581, affiliated with American Federation of Labor, or any other
labor organization of his employees by laying off, discharging or refusing to call to
work any of his employees or in any other manner discriminating in regard to hire
and tenure of employment or any term or condition of employment because of
membership in or activity on behalf of such organization ;
(b) Refusing to bargain collectively with General Drivers and Warehouse Em-
ployees, Local Union No. 581, affiliated with American Federation of Labor, as the
exclusive representative of all drivers, excluding supervisors, with respect to
rates of pay, wages, hours of employment and other conditions of employment ;
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) In any other manner interfering with, restraining, or coercing his em-
ployees in the exercise of their rights to self-organization, to form labor organ-
izations, to join or assist General Drivers and Warehouse Employees, Local Union
No. 581, or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing and to engage in concerted activities, for the
purpose of collective bargaining, or other mutual aid or protection, as guaranteed
in Section 7 of the Act.
2. Take the following affirmative action which I find will effectuate the poli-
cies of the Act :
(a) Offer Ervin Schooler, Waldo Johnson, Ernest Ortlepp, Ralph Scott, Wil-
fred Bergquist, Clifford Hamre, and Joe Poppenhagen, immediate and full rein-
statement each to his former or substantially equivalent position without preju-
dice to his seniority or other rights and privileges ;
(b) Make whole the above-named individuals for any loss of pay they may
have suffered by reason of Respondent's discrimination against them ;
(c) Upon request bargain collectively with General Drivers and Warehouse
Employees, Local Union No 581, as the exclusive representative of all Respond-
ent's drivers, excluding supervisors, in respect to rates of pay, wages, hours of
employment, and other conditions of employment ;
(d) Post at Respondent's terminals in Fargo and Grand Forks, North Dakota,
and at Respondent's headquarters in Grafton, North Dakota, copies of the notice
attached hereto and marked "Appendix A." Copies of said notice, to be sup-
plied by the Regional Director for the Eighteenth Region, shall, after being duly
signed by Respondent, be posted by Respondent immediately upon receipt thereof
and be maintained by him for at least sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to drivers customarily are
posted. Reasonable precautions shall be taken by Respondent to insure that
such notices are not altered, defaced, or covered by other material;
(e) Notify the Regional Director for the Eighteenth Region (Minneapolis,
Minnesota), in writing, within twenty (20) days from the date of receipt of this
Intermediate Report, setting forth in detail the steps, if any, taken by Respondent
in compliance herewith.
It is further recommended that, unless on or before twenty (20) days from
the date of receipt of this Intermediate Report, Respondent notifies the said
Regional Director in writing that he will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring Respondent
to take such action.
It is further recommended that the allegation of the complaint that Ralph
Clayton was discriminatorily discharged be dismissed.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, Series 5, effective August 22, 1947, any party may, within
twenty (20) days from the date of service of the order transferring the case to
the Board, pursuant to Section 203.45 of said Rules and Regulations file with the
Board, Rochambeau Building, Washington 25, D. C., an original and six copies
of a statement in writing setting forth such exceptions to the Intermediate Re-
port or to any other part of the record or proceeding (including rulings upon
all motions or objections) as be relies upon, together with the original and six
copies of a brief in support thereof ; and any party may, within the same period
file an original and six copies of a brief in support of the Intermediate Report.
Immediately upon the filing of such statements of exceptions and/or briefs, the
party filing the same shall serve a copy thereof upon each of the other parties.
Proof of service on the other parties of all papers filed with the Board shall be
HVIDSTEN TRANSPORT 1253
promptly made as required by Section 203.85. As further provided in said Sec-
tion 203.46, should any party desire permission to argue orally before the Board,
request therefor must be made in writing to the Board within ten (10) days from
the date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203 48 of said Rules
and Regulations be adopted by the Board and become its findings, conclusions, and
order, and all objections and exceptions thereto shall be deemed waived for all
purposes.
WALLACE E. ROYSTER,
Trial Examine'.
Dated July 26, 1948.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist GENERAL DRIVERS AND WAREHOUSE EMPLOYEES,
LOCAL UNION No. 581, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or
protection.
WE WILL OFFER to the employees named below* immediate and full rein-
statement to their former or substantially equivalent positions without prej-
udice to any seniority or other rights and privileges previously enjoyed, and
make them whole for any loss of pay suffered as a result of the discrimination.
WE WILL BARGAIN collectively upon request with the above-named union
as the exclusive representative of all employees in the bargaining unit de-
scribed herein with respect to rates of pay, hours of employment or other
conditions of employment, and if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is:
All drivers, excluding supervisors having authority in my interest to hire,
transfer , suspend, lay off, recall , promote, discharge , assign , reward, or dis-
cipline other employees or responsibly to direct them or to adjust their
grievances, or effectively to recommend such action, if in connection with
the foregoing the exercise of authority is not of a merely routine or clerical
nature, but requires the use of independent judgment.
*Those to be reinstated are:
Ervin Schooler
Waldo Johnson
Ernest Ortlepp
Ralph Scott
Wilfred Bergquist
Clifford Harare
Joe Poppenhagen
838914-50-vol. 82-80
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any such labor organi-
zation.
Dated --------------------------------
(Signed) CARL HVIDSTEN
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.