I. E. Schooley, Inc.

National Labor Relations Board - Board Decisions

Jan 2, 1958

119 N.L.R.B. 1212 (N.L.R.B. 1958)

1212 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD
3. The aforesaid labor practices are unfair labor practices affecting commerce,
within the meaning of Section 2 (6) and (7) of the Act.
4. The Company, has not engaged in .unfair labor practices within the meaning
of Section 8 (a) (3) of the Act.
[Recommendations omitted from publication.]
APPENDIX
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 Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT threaten that we can discharge our employees in connection
with protected union activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of the right to self-organization, to form labor
organizations, to join or assist International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers, Local No. 393, and International Union
of Operating Engineers, Local No. 450, or any other labor organization, to
bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all of such activities
except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as- a condition of employment, as authorized
in Section 8 (a) (3) of the Act.
All of our employees- are free to become, remain, or to refrain from becoming
or remaining, members in good standing of International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers, Local No. 393, or International Union of
Operating Engineers, Local No. 450, or any other labor organization except to the
extent that this right may be affected by an agreement in conformity with Section
8 (a) (3) of the Act.
MAGNET COVE BARIUM CORPORATION,
Employer.
Dated------------------ By-------------------------------------------
(Representative ) (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.
L. E. Schooley, Inc. and Harold M. Voorhees . Case No. 30-CA-
501. January 2,1958
DECISION AND ORDER
On June 28, 1957, Trial Examiner William E. Spencer issued his
Intermediate Report in the above-entitled proceeding, a copy of which
report is attached hereto, finding that the Respondent had engaged
and was engaging in certain unfair labor practices, and recommend-
ing that it be required to cease and desist therefrom and to take certain
affirmative action. He also found that the Respondent had not en-
gaged in certain other unfair labor practices, and recommended that
the complaint be dismissed insofar as it alleged such unfair labor
practices. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief.
119 NLRB No, 140.
L. E. SCHOOLEY, INC. 1213
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Bean, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing, and finds that no prejudicial error was committed. The
rulings.are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions, the supporting brief, and the entire record
in the case and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner except insofar as they are inconsistent
with this decision.
As set forth in greater detail in the Intermediate Report, after
Respondent discriminatorily discharged Harold Bridgewater he in-
formed Respondent that he could obtain a job with another employer,
Navajo Freight Lines, Inc., only if Respondent would fill out a ques-
tionnaire from Navajo seeking a factual summary of Bridgewater's
employment history. Respondent refused to fill out the question-
naire, and Navajo refused to hire Bridgewater without it. We agree
with the Trial Examiner that Respondent's refusal to fill out this
questionnaire was motivated by Bridgewater's union activity, and that
such refusal therefore violated Section 8 (a) (1) of the Act.' How-
ever, we do not adopt the Trial Examiner's finding that such conduct
also violated Section 8 (a) (3).2
We shall order the Respondent to cease and desist from refusing to
furnish the work records of its employees or former employees, to
persons who are considering such employees or former employees for
employment, because such employees or former employees engaged in
or are engaging in conduct protected by Section 7 of the Act. We
shall further order the Respondent to take the action with respect to
the questionnaire forwarded to it by Navajo Freight Lines, Inc., re-
garding Bridgewater's work record which it would have taken absent
Bridgewater's union activity, and to make Bridgewater whole for any
loss of pay he may have suffered by reason of the Respondent's unlaw-
fully motivated refusal to fill out the questionnaire, by payment to
him of a slue of money equal to that which he normally would have
earned as wages from the elate of the beginning of any employment
he would otherwise have secured with Navajo to the date that
Respondent takes the action required by the order with respect to such
questionnaire, less his net earnings during said period.' The back pay
1 See Jackson Garment Company, Inc., 100 NLRB 171, 173, 183 ; Spitzer Motor Sales,
Inc., 102 NLRB 437 , 438, enfd. 211 F . 2d 235 ( C. A. 2) ; Globe Products Corporation,
102 NLRB 278 , 283-285 ; see also Grower-Shipper Vegetable Association of Central
California, 15 NLRB 322, 356-3 6 9, enfd . in relevant part , 122 F. 2d 368 (C. A. 9).
2 Grolcer-Shipper etc., supra . 15 NLRB at 365-366: see also United Association of
Journeymen, and Apprentices of the Plumbing and Pipcfltting Industry of the United States
and Canada , Local 42i, AFL-CIO (Frick Company), 116 NLRB 119, 120.
1 West Texas Utilities Coo-mpan-y, 108 NLRB 407. 414, enfd. 218 F. 2d 824 (C. A. 5),
cert. denied, 349 U. S. 953; El Mundo, Inc.,, 92 NLRB 724, 725-730; Bretz Fuel Company,
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall be computed on a quarterly basis in the manner established by
the Board in F. W. Woolworth Company, 90 NLRB 289. However,
Bridgewater shall be entitled to net back pay, under this paragraph,
only for those quarters in which such net back pay exceeds the net
back pay to which he would be entitled because of the discrimination
against him; and for those quarters for which he receives back pay
under this paragraph he shall not be entitled to back pay arising from
the discrimination.
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 Respondent, L. E. Schooley,
Inc., and its officers, representatives, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Threatening to change its wage structure to the prejudice of
its employees in the event they choose union representation.
(b) Inducing employees to refrain from or to renounce union
representation by promising benefits in the event union representation
is rejected.
(c) Threatening with reprisals employees known or believed by
it to have favored union representation.
(d) Questioning, or polling, its employees concerning their attitude
toward union representation, in a manner constituting interference,
restraint, and coercion.
(e) Refusing to furnish the work records of its employees, or
former employees, to persons who are considering such employees or
former employees for employment, because such employees or former
employees engaged in or are engaging in conduct protected by Section
7 of the Act.
(f) Discouraging membership in the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Local No. 16,4 or any other labor organization of its employees, by
discriminating against its employees with respect to work assignments :
by discharging them; or by discriminating in any other manner in
regard to their hire, or tenure of employment, or any term or condi-
tion of employment.
(g) In any other manner interfering -with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the International Brotherhood
104 NLRB 371, 373, enforcement denied on grounds immaterial here, 210 P, 2d 392
(C. A. 4) : Hearst Publishing Company. Inc., 1.13 NEVI: 384, 390: see also (rower-
Shipper etc.. supra, 15 NLRB at 368-369.
4 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.
L. E. SCHOOLEY, INC. 1215
of Teamsters; Chauffeurs, Warehousemen and Helpers of America,
Local No. 16, or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all of such activities, except
to the extent that such right may be affected by an agreement requiring
membership in a labor organization as authorized in 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 Harold G. Bridgewater and Olan L. Wolfe immediate
and full reinstatement to the positions they held prior to the discrimi-
nation against them or substantially equivalent employment, without
prejudice to their seniority and other rights and privileges previously
enjoyed, and make them whole for any loss of pay they may have
suffered as a result of the discrimination against them, in the manner
set forth in that part of the Intermediate Report entitled "The
Remedy" as modified by the Board's decision.
(b) Take the action with respect to the questionnaire forwarded
to it by Navajo Freight Lines, Inc., regarding the work record of
Harold G. Bridgewater, which it would have taken absent Bridge-
water's union activity, and make Bridgewater whole for any loss of
pay he may have suffered as a result of Respondent's unlawfully moti-
vated refusal to issue such work record, in the manner set forth in
the Board's decision.
(c) Upon request make available to the Board or its agents, for
examination and copying, all payroll records, social-security payment
records, tilnecards, personnel records and reports, and all other records
necessary to analyze the amounts of back pay due under the terms of
this Order.
(d) Post at its plant at Grand Junction, Colorado, copies of the
notice attached hereto as Appendix. Copies of said notice, to be
furnished by the Regional Director for the Seventeenth Region, shall,
after being duly signed by a representative of Respondent, be posted
by the Respondent immediately upon receipt thereof, and be main-
tained by it for a period of sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken to insure
that such notices are not altered, defaced, or covered by any other
material.5
. (e) Notify the Regional. Director for the Seventeenth Region, in
writing, within ten (10) days from the date of this Order, as to what
steps the Respondent has taken to comply herewith.
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."
121.6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that Respondent violated the Act by
creating an impression of surveillance over its employees' union
activity.
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 our employees that :
WE WILL NOT threaten that our employees will suffer a wage loss
in the event they choose union representation.
WE WILL NOT promise increased benefits in the event our em-
ployees reject union representation.
WE WILL NOT threaten with reprisals employees favoring, or
who have favored, union representation.
WE WILL NOT refuse to supply the work records of our em-
ployees or former employees, to persons considering them for
employment, because of their union activities.
WE WILL NOT question or poll our employees concerning their
attitude toward union representation, in a manner constituting
interference, restraint, and coercion.
WE WILL NOT discourage affiliation with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local No. 16, or any other labor organization, by
discharging our employees, by discriminating against them with
respect to their work assignments, or by discriminating in any
other manner in regard to their hire or tenui e of employment or
any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organiza-
tion, to form labor organizations, to join or assist the above-
named Union, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to
engage in collective bargaining or other mutual aid or protection,
or to refrain from any or all of such activities except to the extent
that such right may be affected by an agreement requiring
membership in a labor organization as authorized by the National
Labor Relations Act.
WE WILL offer Harold G. Bridgewater and Olan L. Wolfe
immediate and full reinstatement to positions held prior to the
discrimination against them, or substantially their equivalent,
without prejudice to any seniority or other rights and privileges
previously enjoyed, and make them whole for any loss of pay
L. E. SCHOOLEY, INC. 1217
they may have suffered as a result of the discrimination against
them.
WE WILL take such action regarding a request by a prospective-
employer for the work record of Harold G. Bridgewater as we-
would take absent his union activity, and make him whole for-
any loss of pay he may have suffered as a result of our earlier
refusal to do so.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of the above-named Union, or any
other labor organization, except to the extent that this right may be-
affected by a lawful agreement requiring membership in a labor
organization as a condition of employment.
L. L. SCHOOLEY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) ( 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..
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding , with all parties represented , was heard by the duly designated
Trial Examiner at Grand Junction , Colorado, May 1, 2, 1957, on complaint of'
the General Counsel of the National Labor Relations Board , issued pursuant to
charges filed by an individual , and answer of the Respondent , L. E. Schooley, Inc.
The. complaint alleges and the answer denies , in substance , that in violation of
Section 8 (a) (1) and (3) of the National Labor Relations Act, herein called the
Act, the Respondent discriminated against two employees in their work assignments.
and discharged them because of their union activities ; refused one of them a recom -
mendation because of his union activities ; and in violation of Section 8 (a) (1)
of the Act made various statements and engaged in conduct , amounting to inter-
ference, restraint , and coercion. There was oral argument at the close of the-
hearing; no briefs have been filed.
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
L. E. Schooley, Inc., the Respondent herein , is a Colorado corporation with its.
principal place of business in Grand Junction , Colorado, where it is engaged in the-
transportation and hauling business . During its last fiscal year preceding the
hearing, it rendered services valued in excess of $100 ,000 to The Climax Uranium
Company, herein called Climax. Climax annually sells uranium valued at more
than $ 100,000 to the Atomic Energy Commission , an agency of Government partici-
pating in the defense program of the United States , and annually handles and ships
other material valued in excess of $100 ,000 to customers outside the State of-
Colorado.
The Respondent is engaged in commerce within the meaning of the Act and,.
under prevailing formulae, the Board will assert jurisdiction over it.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers.
of America , Local No. 16, AFL-CIO, herein called the Union, is a labor organization
within the meaning of the Act.
476321--58-vol. 119--78
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, coercion
The Respondent in the conduct of its trucking business employs some 12 drivers.
These drivers are assigned to various "runs" or "hauls," and are paid whatever the
employer determines the haul is worth, regardless of the number of hours actually
spent on it. There is no regular workweek in terms of hours and therefore no such
thing as "overtime" or "overtime" pay.
In late April or in May 1956, the Union attempted to organize Respondent's
employees and, pursuant to the Union's petition for representation, an election was
conducted by the Board on June 7, 1956. The Union lost the election. Apparently
only four employees voted for union representation. Among these four favoring
the Union, were Olan L. Wolfe and Harold G. Bridgewater, both alleged to have
been discriminated against in their work assignments following the election, and
to have been discharged because of their union activities on or about August 20, 1956.
That the Respondent opposed the Union's efforts to organize its employees, as
it had a right to, is clear. It is the methods that it used in its opposition that
provide the issue in this connection. I credit the testimony elicited by the General
Counsel through several of its witnesses, all employees or former employees of
Respondent, that L. E. Schooley, Respondent's president,' and John W. Speight,
Respondent's office manager, in the period preceding the election informed them
individually that if the Union won the election the Respondent would operate on a
40-hour week and would hire extra drivers for overtime work. The defense to
these statements is that the Union itself was advocating a 40-hour week. It is
doubtless true that the Union was advocating a 40-hour week with extra pay for
overtime, but it is hardly to be supposed that the Union was proposing to lower
the compensation of the employees it aspired to represent, and this is exactly what
the Respondent was telling its employees would result from union representation.
Any change that union representation might bring in the method and rate of
compensation could only come as a result of collective bargaining, and, as testified
to by employee Lester E. Miller, who opposed the Union, in meeting with the
employees the Union's representatives stated with respect to working hours that
the contract could be negotiated "whatever way the employees wanted it." Re-
spondent's bald assertion that if the Union won the employees would be cut to a
40-hour week, was not in my opinion mere prediction of what might happen in
the event of a union victory, nor mere counterargument within the framework of
legitimate persuasion, but a plain warning, or threat, that if the employees voted the
Union in they would suffer a wage cut 2 These statements were, in my opinion,
violative of Section 8 (a) (1) of the Act, and it is so found.
With respect to the allegation that the Respondent promised its employees
benefits if they opposed the Union in the election of June 7, there is the testimony
of employee T. J. Warren that just prior to the election, Schooley told him that
there was a "good haul" coming up in Utah, and that if the plant did not go union
Warren could have a new truck and the Utah haul. In a previous conversation,
when Schooley had raised the question of the Union, in an obvious attempt to
ascertain Warren's attitude toward it, Warren had complained about the truck he
was then driving and had protested the assignment of new trucks to employees with
less seniority. Warren's testimony is credited. The conclusion is unavoidable that
Schooley offered Warren inducements for the purpose of influencing his vote with
respect to the Union, and thereby violated Section 8 (a) (1) of the Act. It is so
found.
Employees Calvin T. Warnica, Warren, Bridgewater, and Ernest Miracle, Jr.,
testified, respectively, that either Schooley or Speight, as the case may be, approached
them prior to the election and asked how they intended to vote. Of these, it appears
that only Bridgewater actually voted for the Union. Miracle testified that Speight
told him that he, Speight, was acting on Schooley's instructions to talk to all the
drivers and find out how they felt about the election. In the same conversation,
Speight made the threat of the 40-hour week with relief drivers in lieu of overtime
pay. The same statement was made by Schooley when he approached Bridgewater
.about the latter's vote. Warnica,. Warren, Bridgewater, and Miracle, testified
1 Schooley denied making such statements but the record will not support his denial,
the opposing testimony of several witnesses being in every respect convincing.
2 For instance , the testimony of Charles Roscoe Harris that on learning that Harris was
for the Union, Schooley replied that he would be sorry; that he, Schooley , would or could
cut him to 40 hours a week.
L. E. SCHOOLEY, INC. 1219
credibly in this matter and to the extent that Schooley's testimony, or Speight's, as
the case may be, is in conflict, it is not credited. We do not have here a polling
of employee opinion isolated from acts and statements showing animus against the
Union on the part of management, such as has been held harmless under the Act.
Under the circumstances of this case, I must find Respondent's questioning of its
employees individually on the way they intended to vote in the June 7 election,
violative of Section 8 (a) (1) of the Act.
With respect to the allegation that the Respondent "created the impression of
surveillance of its employees' union and other concerted activities," I find insufficient
proof. True, Speight and Stanley Schooley, son of Respondent's president and an
,officer of management, prior to the election attended a meeting of employees at
Employee Miller's house, for the purpose, presumably, of discussing management's
.attitude toward the Union. They were there, however, at Miller's invitation, and
.Speight addressed about eight employees present only because he was invited to.
Stanley Schooley remained silent. I can find no suggestion of "surveillance" here.
There is also the testimony of Miracle that shortly after the election Stanley Schooley
:told him he knew the indentity of 3 of the 4 employees who voted for the Union.
Assuming that he did, he did not necessarily come by this knowledge through sur-
,veillance and his statement of knowledge, without more, did not necessarily create
.an "impression" of surveillance. It is recommended that this allegation of the
,complaint be dismissed.
B. Discrimination
Harold G. Bridgewater: Bridgewater was employed by the Respondent in the fall
,of 1953 and continued in its employ to August 20, 1956, when, it is alleged, he was
.discharged. Respondent denied the discharge and asserts that he quit. Actually,
.he was told by the Respondent that he would be discharged if he did not quit and,
.apparently for purposes of preserving his record, he chose to quit. Obviously, under
.these circumstances his severance of his employment was not voluntary but was
required by the Respondent, and therefore was actually a discharge. Accordingly it
is found that the Respondent discharged Bridgewater on August 20, 1956.
It is clear from the entire record that Bridgewater was one among Respondent's
,drivers most active in seeking union representation. It is also clear that Respondent
;had full knowledge of his strong prounion position. Bridgewater's testimony that
.prior to the election Schooley questioned him concerning his attitude on the Union,
.has been credited. At that time Bridgewater told Schooley that he would let him
know on the following day what his position would be. On the following day,
according to Bridgewater's credited testimony, he went to Schooley's office and told
him that he favored the Union. Miracle's testimony, which will be referred to in
detail later, also establishes that Schooley identified Bridgewater as one of the
Union's proponents.
At the time of the election Bridgewater was regularly assigned to the so-called
Utah haul. According to Stanley Schooley this was Respondent's only regular haul,
and it appears that it was mostly over good roads whereas some or most other hauls
were over rough terrain. In short, the Utah haul appears to have been the best of
the hauls to which Respondent's employees were assigned. At the time of the
,election there appear to have been 2 drivers on this haul; at the present time,
:according to Stanley Schooley, there are 3.
On the day following the June 7 election, when Bridgewater returned from his
Utah haul, Stanley Schooley told him that he would not be assigned to that haul any
more, but was to make what was known as the "Flat Top" run the following.day.
The reason given by Stanley Schooley for the change was that assignments in the
future would be made on a basis of seniority, and that there were employees senior
to Bridgewater who wanted the Utah haul.
According to Respondent's officers Speight, Schooley, and Stanley Schooley, dur-
ing the organizational campaign they had learned that the major source of dissatis-
faction among the employees was the denial of seniority rights, both as to hauls and
trucks, and it was to meet this dissatisfaction that the change was instituted following
the election. It does not appear that Bridgewater protested having the Utah haul
assigned to someone senior to him, if seniority was to be applied generally, though
some argument ensued between him and Stanley Schooley as to whether Bridgewater
,or another employee, Godby, was entitled to the so-called "Bull Canyon" haul,
which Bridgewater requested in lieu of the Utah haul. Bridgewater was assigned to
the Flat Top run and Miracle, who had opposed the Union and who was junior to
Bridgewater, was taken off the Flat Top run and put on the "Arrowhead" haul.
Apparently, Miracle was agreeable to the change for he testified that although the
Arrowhead run paid less than Flat Top, it was a better haul in several ways. He
testified that the Flat Top haul was over rough terrain and a road which, in places,
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was narrow and dangerous , whereas the Arrowhead haul was over a good road.
Stanley Schooley admitted that Bridgewater protested his assignment to the Flat
Top run.
There can be no question that following the election Bridgewater was taken off
of one of Respondent 's most desirable runs and placed on one of its least desirable
runs. It is also clear that the application of seniority standards to both hauls and
trucks was one of the topics discussed in the organizational campaign preceding the
election. If Respondent 's reassignment of Bridgewater following the election was
for the purpose of effectuating a seniority system, and was not influenced by
Bridgewater 's advocacy of the Union , it was not discriminatory within the meaning
of the Act . If it was a punitive measure or if it was motivated in any part by
Respondent's resentment of Bridgewater 's activities on behalf of the Union, it was
discriminatory .. The evidence , in my opinion , establishes rather conclusively the
unlawful "motive.
1. While admittedly during the organizational campaign discontent was expressed
over Respondent 's failure to apply seniority standards in the assignment of hauls
and trucks , the only specific complaints that Stanley Schooley could testify to had
to do with the assignment of trucks , and it does not appear that Respondent made
any change whatever in the order by which newer trucks were assigned to the
older men. He could not testify to a single specific complaint with respect to
hauls, other than one registered as early as February or March, before there was
any organizational activity, by an employee who told him that it "hurt his feelings"
when Bridgewater , junior to him in seniority , was given a new truck and the Utah
haul. Admittedly , Respondent did nothing about the complaint at that time.
2. As far as I can ascertain from the testimony , the only person prejudiced by
Respondent 's application of its new seniority policy on the day following the
election, was Bridgewater.3
3. There is no evidence that any change whatever was made in the assignment
of trucks , although this appears to have been one of the major "gripes " among the
older drivers.
4. There is Bridgewater's testimony , which I credit, that when informed by
Stanley Schooley that he was to be taken off the Utah haul he went to Schooley, Sr.,
and asked him if future assignments were to be made on the basis of seniority.
Schooley replied that he did not think they would be; that his "feelings were hurt
pretty bad" because of the way Bridgewater felt about the Union ; that he thought
it was iust his feelings and that he would get over it.
5. Miracle testified that on the day following the election he had a conversation
with Schooley in the latter 's office during which Schooley told him that he was
going - to pull Miracle off the Flat Top haul and put Bridgewater on it ; that he was
going to make Bridgewater earn his money from here on out ; that the ones who
stuck with him would get the breaks , whereas the others would earn their money
and he would either discharge them or make it so hot for them they would quit;
that they would never get another chance to "put in" the Union. Bridgewater was
the only employee named by Schooley during this conversation . Schooley denied
the statements thus attributed to him by Miracle but I am unable to credit his
denials. Miracle was no longer employed by the Respondent at the time he testified,
but there is no evidence tending to show that the severance of his employment was
anything but amicable . He actually voted against the Union and when he switched
from prounion to antiunion prior to the election, Bridgewater approached him in
a threatening manner and while actual fisticuffs were avoided , Bridgewater admit-
tedly censured him hotly for having changed his mind. All of this together with
Miracle's favorable appearance as a witness , convinces me that he was entirely
credible in the matters concerning which he testified.
In view of the entire evidence it is impossible to dissociate Respondent 's action
of depriving Bridgewater of one of its best hauls on the day following the election
. and placing him on one of its least desirable hauls , from Respondent 's resentment
of Bridgewater 's prounion activities . I must find therefore that the change in his
assignment was at least in part punitive , was at least in part for the purpose of
discouraging union activities through punishment of one who had advocated the
Union, and was therefore violative of Section 8 ( a) (1) and ( 3) of the Act. It is
not alleged that there was a monetary loss involved in the change of assignments.
Bridgewater's discharge was precipitated by an incident in which he caused some
slight damage to his truck . The incident occurred at the plant when he was fueling
s The allegation is that Wolfe also was discriminated against in this respect but there
is no real development of evidence on the point.
L. E. SCHOOLEY, INC. 1221
his tanks . In doing so , because of the position of the truck with respect to the
fuel pumps , he had to raise the bed of the truck in order to bring the fuel hose to
the fuel tank on the opposite side of the truck. As he got into the truck to pull it
away from the pumps, he "forgot" to throw the power take-off out of gear, and
this caused the truck bed to hit the tongue of the trailer .4 It also cut the air hose
running from the truck to the trailer . Bridgewater immediately went into the shop
and asked for tools for repairing the break in the air hose, and returned to his
truck where he repaired the break.
Admittedly , the repair of a broken air hose normally is a minor job taking,
according to Shop Foreman McNew, some 10 to 15 minutes or less time. The
further damage resulting from Bridgewater 's failure to throw the power takeoff out
of gear, according to McNew, was that the tongue of the trailer was slightly bent
as was the rail on the back of the truck bed where it came down against the tongue.
McNew admitted that the total damage was slight and of such nature that it was
never necessary to repair it, that in fact it was not repaired , and that no time was
lost in the use of the truck-trailer because of it. Admittedly , damage of greater
degree had occurred with various drivers without any punitive measures whatever
being taken against them. Within the past year or two , as admitted by Schooley,
drivers other than Bridgewater have been involved in accidents in driving their
trucks incurring a liability which ran into the thousands of dollars, without any
punitive measures being taken against them.
On the day following the incident described above, Stanley Schooley, on instruc-
tions from his father , discharged Bridgewater . The only justification offered by
the Respondent for the discharge is the incident involving Bridgewater 's failure to
throw the power takeoff out of gear, with resultant slight damage ' to truck and
trailer as previously described . The pretext character of the "justification" would
be too clear to merit further discussion except for Respondent 's claim that Bridge-
water's "accident " was no accident but a deliberate attempt to so damage the tongue
to his trailer that Respondent would be compelled forthwith to comply with Bridge-
water's reiterated request that the eye which is set in the tongue and through which
the trailer is attached to the truck , be "built up"; i. e., repaired.
A worn eye without becoming actually dangerous may give so much loose play
as to be annoying to the driver, and it is customary in Respondent 's shop to build
up or "hard surface" the eye to obviate this difficulty . Admittedly, the eye on
Bridgewater 's trailer was not worn to the point of becoming dangerous but was
worn sufficiently that it needed building up . This is shown conclusively by the
fact that it was built up within 2 or 3 weeks of Bridgewater 's discharge. Prior
to the incident at the fuel pump, Bridgewater had on at least one or two occasions
requested the shop foreman to hard surface the eye, and a few days before the
incident occurred, Bridgewater had repeated his request to Merlin W. Tucker, a
mechanic 's helper who had been in Respondent 's employ only since June 1, 1956.
Tucker told Bridgewater that he was not qualified to do the welding required on the
job, whereat , according to Tucker , Bridgewater said that if they did not repair the
eye he would break the tongue off his trailer so that they would have to "fix" it.
Tucker repeated this to his superior McNew, and when the incident at the fuel
pump occurred , McNew reported to Schooley what Tucker had told him, and at
the same time showed Schooley the damage to the tongue and truck bed previously
described . Thereupon , without discussing the matter with Bridgewater or affording
him any opportunity to explain the circumstances under which his equipment came
to be damaged , Schooley instructed his son , Stanley, to discharge Bridgewater.
In offering Bridgewater the alternative of being discharged or quitting , according
to Bridgewater 's credited testimony, Stanley Schooley made no reference to the
fuel pump incident but said that there was too much "bitching around there and
they was going to stop it." Bridgewater replied that it had all started with the
Union, and Stanley Schooley agreed, "Yes , that's what started all of it." Bridge-
water asked if a mechanic had reported anything about him and Schooley refused
an answer. Bridgewater then sought out McNew , and had an argument with the
latter during which McNew accused him of deliberately trying to tear the "hitch"
off of the truck . It appears that during this altercation Bridgewater threatened to
"beat up" McNew but no actual blows were passed , and Bridgewater explained to
McNew just what had happened to cause the severance of the air hose and the
damage to the tongue and truck bed. When Bridgewater got his final check from
Speight, according to Bridgewater 's credited testimony , Speight said he hated to
see Bridgewater discharged ; that he, Speight, didn ' t figure how the Union could
4 Shop Foreman Hall D . MeNew's testimony.
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
help the employees ; and that Schooley had made plans if the Union won to get rid'
of everything because he was not going to have anybody tell him what to do.5
Bridgewater denied that he made the threat , as testified to by Tucker, to so
damage the tongue of his trailer as to require the building up of its eye , but ad-
mitted that he told Tucker, "it looks like I am just going to have to pull the trailer
till something happens to it." Tucker was at times a confused witness and his-
testimony was. not on all points consistent with that of his superior , McNew. It
is not entirely unlikely, however, that he may have construed Bridgewater's remarks
as a threat and may have reported them to McNew as a threat. Assuming this-and'
it is straining a bit to make the assumption-it is just not believable that McNew,
who testified that he was present in the shop at the time the incident at the fuel'
.pump occurred and that he saw what happened , could have concluded that Bridge -
water was deliberately and maliciously attempting to break the tongue to his trailer
or damage it to the extent that McNew would be compelled to comply with his
request respecting the building up of the eye . Had this been his purpose , would'
he have chosen to execute it at Respondent 's plant, in plain view of McNees"
Would he have chosen a method so clumsy and ineffectual that the actual damage-
.was too slight to require any repair of the tongue whatever? And would he have-
gone immediately into the shop and in McNew 's presence and hearing asked for
tools for repairing the severed air hose, thus specifically directing attention to the
occurrence ? Bridgewater impressed me as being a person of at least average
intelligence , but to make the threat attributed to him and then to proceed to attempt
to effectuate it under McNew's eyes and in a manner that held little if any promise
of success , would be an act bordering on lunacy, unless he was deliberately in-
viting his discharge. That can hardly be the fact. The truth is, I am certain, Bridge
.water forgot to throw the power takeoff out of gear , just as McNew unguardedly
testified he did, and the damage that resulted from his forgetfulness or negligence,
was so slight that except that he had incurred the displeasure of his employer
because of his union activities , it is doubtful that he would have been penalized by
so much as a reprimand . His summary dismissal , without being afforded any
opportunity whatever either to answer the report of Turner, who had been in
Respondent's employ for less than 3 months and was a minor employee, or to
explain the circumstances by which the truck bed came to be lowered against the
tongue, and statements involving the Union made to him by both Stanley Schooley
and Speight at the time of the discharge , together with the earlier threat made by
Schooley, Sr., in the latter 's conversation with Miracle , are additional factors
in bringing me to the conclusion that the discharge resulted from unlawful motivation.
It is accepted as fact that Bridgewater was somewhat hot-tempered and that he
threatened to "beat up " McNew, but this happened after his discharge and there-
fore could not have been a causative factor. His prior threat directed at Miracle is
not shown to have caused the Respondent any concern . Nor do I find impressive
testimony tending to show that he was disgruntled following the election. He
may have been but there is no showing that his work suffered because of it or that
Respondent 's operations were in any way affected . Stanley Schooley 's testimony
that a mine operator complained about Bridgewater 's attitude , clearly was an after-
thought, unrelated to the actual cause of the discharge . It was never brought to
Bridgewater 's attention . Stanley Schooley admitted to Bridgewater at the time of
the discharge that he was one of Respondent's best drivers, and it was Bridgewater's
uncontested testimony that shortly before his discharge he won a safety award, though
it was never actually presented to him. It appears that a haul he was engaged on
prevented his attendance at a company dinner when the awards were given out,
and the Respondent offered no explanation of why it was not thereafter presented
to him.
Upon the basis of the entire evidence in the case, it is -found that the Respondent
discharged Bridgewater because of his union activities , thereby discouraging af-
filiation in a labor organization , and interfering with, restraining, and coercing its
employees , within the meaning of Section 8 (a) (1) and (3) of the Act.
Following his discharge, Bridgewater applied for employment with a Denver
concern where he gave the Respondent as a reference. This Denver concern sent
5 Spe&ght testified that on this occasion he talked to Bridgewater some 25 or 20 minutes
while making up the check, and "parts of the conversation" he recalled . He admitted
that the Union was brought up during the conversation , and that he expressed the opinion
that the Union had caused all of Bridgewater 's trouble and "eventually caused his release."
Speight's explanation of this remark was that Bridgewater's attitude worsened after the
election and that there were "hard feelings" between him and other shop personnel.
L. E. SCHOOLEY, INC. 1223
Respondent inquiry forms concerning Bridgewater which the Respondent did. not
fill out and return. The Denver concern advised Bridgewater that.he could go to
work as soon as all of his references were in, but that Respondent's reference would
be required. Bridgewater went to Schooley's office with respect to the matter and
Schooley informed him that since he, Schooley, could not give Bridgewater a
favorable reference, he had refrained from filling in and returning the inquiry forms
sent him by the Denver concern. It was Schooley's testimony that this was his
customary procedure when he was unable to give a former employee a favorable
recommendation.
Aside from the incident at the fuel pump which Respondent advanced as the
cause of Bridgewater's discharge, •there is no reason to infer that the Respondent
would have refused him a favorable reference. As previously noted, at the time
of his discharge Stanley Schooley informed Bridgewater that the latter was one of
Respondent's best drivers, and Bridgewater had won a safety award only a short
time before his discharge. It having been found that the fuel pump incident was
mere pretext and that the actual cause of the discharge was Bridgewater's union
activities, it follows that Respondents' refusal to give him a favorable recommenda-
tion was tainted with the same unlawful motivation. Therefore the refusal is found
to have constituted discrimination and to have been violative of Section 8 (a) (1)
and (3) of the Act.
Olan L. Wolfe: The evidence with respect to Wolfe is meager but not necessarily
insubstantial. Wolfe was employed in Los Angeles at the time of the hearing and,
according to the General Counsel, did not choose to jeopardize his present employ-
ment by attending the hearing and testifying. From Speight's testimony, it appears
that he was employed by Respondent at least as early as the latter part of 1955, as
he is-carried on the payroll records for that period. That the Respondent believed
him to be prounion and to have voted for the Union, is established by Employee
Miracle's credited testimony that a few days following the election Stanley Schooley
named Wolfe, along with Bridgewater and Roscoe Harris, as 3 of the 4 employees
who voted for the Union. There is also Miracle's testimony, previously referred to,
that Schooley, Sr., following the election, told Miracle that the ones who stuck with
him would get the breaks, whereas the others would earn their money and he,
Schooley, would either discharge them or make it so hot for them they would quit.
Bridgewater was the only employee specifically referred to by Schooley, but since it
is established that Respondent identified Wolfe as I among the 4 who voted for the
Union, it is a reasonable and inescapable inference that he was included in the scope
of Schooley's threat, Wolfe and Bridgewater were discharged on the same day.
Respondent admits Wolfe's discharge. This is the sum and substance of the General
Counsel's case-in-chief on Wolfe.
There was considerable doubt in my mind at the hearing that a prima facie case of
unlawful discharge had been established with respect to Wolfe, and while expressing
that doubt I did not grant Respondent's motion to dismiss the allegations with respect
to Wolfe but reserved ruling on it until I had had an opportunity to study the tran-
script. Respondent was therefore on notice that the matter continued in litigation.
After a careful survey of the transcript, and having resolved questions of credibility
upon which I had reached no decision at the time of the hearing, I am now of the
opinion, particularly in view of Schooley's threat as recounted by Miracle and what
I have found to have been its effectuation in the case of Bridgewater, that a prima
facie case was made out on Wolfe as well as Bridgewater. It is true, of course, that
Respondent was not precluded by Schooley's threat from discharging its prounion
employees for cause, but, as in all such cases, threats of unlawful discharge by one
in position to effectuate them, makes it all the more difficult to distinguish pretext
from cause, and this is particularly true here where, with respect to at least one of
the employees threatened, it has been found that Respondent's asserted cause was
actually pretext. In short, I am now of the opinion that it devolved upon the
Respondent to meet the reasonable inferences flowing from Schooley's threat, and
the substantiality of that threat as shown by its effectuation with respect to Bridge-
water, but the Respondent chose to do so only to the extent that Schooley testified that
Wolfe was dicharged for causing damage to his equipment. I now think that such
generalized testimony was not enough. Admittedly, as in the case of Bridgewater,
Wolfe was discharged without prior notice or warning, and while Schooley testified
that he had discharged many others in the same manner, it is conclusively established
that numerous drivers whose equipment was damaged were not penalized in any
way whatever. White in the case of Bridgewater, an attempt was made to show
that he deliberately and maliciously caused his equipment to become damaged, no
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such details were furnished with respect to Wolfe. The Respondent having failed,
in my opinion, to overcome or to bring into balance, the reasonable inferences of
unlawful motive established by evidence adduced by the General Counsel, I must.
find that Wolfe's discharge, like Bridgewater's, was because he supported the Union
and voted for it in the June 7 election, and that it constituted a violation of Section
8 (a) (1) and (3) of the Act.
There is no evidence to support the allegation that Wolfe was discriminated against
with respect to his work assignments following the election, and it is recommended
that this allegation of the complaint be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent discharged Harold G. Bridgewater and
Olan L. Wolfe because of their union activities and discriminated against Bridgewater
with respect to his work assignments, it will be recommended that it offer them
immediate and full reinstatement, in the case of Wolfe to his former or substantially
equivalent position, in the case of Bridgewater to the position he held immediately
prior to the discrimination against him with respect to his assignments, or substan-
tially its equivalent, without prejudice to their seniority and other rights and privi-
leges, and make them whole for any loss of pay they may have suffered by reason
of the discrimination against them by payment to each of a sum of money equal
to that which he normally would have earned in Respondent's employ from the
date of his discharge to the date of Respondent's offer of reinstatement, less his net
earnings during said period. Loss of pay shall be computed upon a quarterly basis
in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289.
The unfair labor practices found herein to have been committed by the Respond-
ent demonstrate an attitude of opposition to the purposes of the Act generally. To
make effective the interdependent guarantees of Section 7 of the Act, thereby mini-
mizing industrial strike which burdens and obstructs commerce, and thus effectuate
the policies of the Act, it will be recommended that the Respondent cease and desist
from infringing in any manner upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2 (5) of the
Act.
2. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
3. By discriminating in regard to the hire and tenure of employment of its
employees, Bridgewater and Wolfe, thereby discouraging membership in the Union,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) of the Act.
4. By discriminating with respect to the work assignments of its employee, Bridge-
water, and by its discriminatory refusal to give its employee, Bridgewater, a recom-
mendation, thereby discouraging membership in the Union, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
6. The Respondent has neither engaged in surveillance nor created the impression
of surveillance of the union activities of its employees.
7. The Respondent has not discriminated against its employee, Wolfe, in the
matter of his work assignments.
(Recommendations omitted from publication.]