J. Mitchko, Inc.

National Labor Relations Board - Board Decisions

May 14, 1959

123 N.L.R.B. 1117 (N.L.R.B. 1959)

J. MITCHKO, INC. 1117
tions, and does not responsibly direct any employees nor possess power
to make effective recommendations as to their status. We find, as the
Employer contends, that Lewis is not a supervisor, and we shall,
therefore, include him.'
We find that the following employees of the Employer constitute a
unit appropriate for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act: All truckdrivers, route salesmen,
mechanics and helpers, and maintenance employees employed at the
Employer's operations at Burnside, Danville, and Campbellsville,
Kentucky, excluding all office clerical employees, guards, professional
employees, all other employees, and all supervisors as defined in the
Act.
5. The record indicates that the employment of Lee Vaughn, Arlus
Bradshaw, Roy Dick, and A. D. Freeman was terminated during
1958. The Petitioner maintains that Vaughn, Bradshaw, and Dick
were temporarily laid off and should therefore be permitted to par-
ticipate in the election, while the Employer contends that they are
ineligible. As the record shows that there is no reasonable expectancy
that any of the three will be recalled in the near future, we find that
they are ineligible to vote.'
Freeman, who was previously employed as a maintenance man, has
been recalled for a special job of checking one of the Employer's oil
leases. The category in which Freeman is now employed is not cov-
ered by the unit, and the Employer maintains that there is no
reasonable expectancy of his recall as an employee in one of the unit
categories. The Employer nevertheless contends that Freeman is
eligible to vote, while the Petitioner would exclude him. In view of
the unlikelihood of his reemployment in one of the unit categories, we
find that Freeman is not eligible to vote.
[Text of Direction of Election omitted from publication.]
4 American Radiator if Standard Sanitary Corp., 119 NLRB 1715, 1718
8 F. B Rogers Silver Company, 95 NLRB 1430, 1432
J. Mitchko, Inc. and Dairy Transportation Drivers, Helpers
and Terminal Employees, Local Union No. 770, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Case No. 2?-CA-167. May 14, 1959
DECISION AND ORDER
On January 26, 1959, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
123 NLRB No. 134.
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
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 Fanning].
The Board has considered 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 Inter-
mediate Report, the exceptions, the briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following additions.
1. We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (3) and (1) of the Act by discharging employees Owen
Edgerly, Joe Ford, and George Champignon, and by refusing to rein-
.state employee Melvin Leek.
On November 7,1957, employees Edgerly, Ford, Champignon, Leek,
and Van Riper met at Leek's home with Chester Decker, president of
the Charging Union. Each of the five employees signed a union card.
Leek was elected shop steward. On November 8, Decker wrote a
letter to the Respondent requesting recognition. The letter was mis-
directed and apparently was not received by the Respondent. How-
ever, on November 13 and 14, approximately a week after the organi-
zation meeting, Foreman Albert Arnott interrogated Leek, Cham-
pignon, and Edgerly individually about union activity at the garage.
Arnott told employee Henry Kennedy on November 13, "They will
never get a goddam union in here." At the close of the working day
on Friday, November 15, Respondent's president, Butkus, without
prior notice, informed Edgerly, Ford, and Champignon that they
were discharged effective immediately because the Respondent had
decided to operate with owner-operators due to the bad condition of
its own equipment. Butkus offered to sell the old tractors to the, dis-
charged employees at approximately $2,000 to $2,500, four times mar-
ket value, and to employ them as owner-drivers on a 55 to 45 split,
the former percentage going to the owner-drivers and the latter to the
Company. He also required an answer on the offer not later than the
following morning. Only Edgerly indicated interest in the offer and
asked for time to consider it. Butkus told Edgerly that if he decided
against purchasing the tractor he could remain at home for 2 weeks
with full pay pending recall. The following morning Edgerly noti-
fied Butkus that he would not buy the tractor. Butkus repeated his
offer that Edgerly remain at home with full pay. Edgerly declined
the offer out of loyalty to his fellow employees.
J. MITCHKO, INC. 1119
On November 17 Van Riper and Leek struck in protest against the
discharge of their fellow employees. November 27 the Union made a
request for the unconditional reinstatement of Van Riper and Leek.
The Respondent ignored the request. It employed one new driver on
November 25 and another one on December 12. It also continued to
use owner-operators from November 18 to December 10. After the
latter date it used such owner-operators only when its own drivers and
equipment could not handle the available work. Picketing ceased by
December 20, 1957.
Foreman Arnott's questioning of employees as to union activities
on November 13 and 14, which is attributable to the Respondent,
indicates that the Respondent had become aware of such activity by
November 15, when it discharged Edgerly, Ford, and Champignon.
All the circumstances surrounding the discharges further indicates,
and we find, that the shift to owner-operators was a temporary ex-
pedient designed to enable the Respondent to rid itself of employees
whom it knew or suspected were union adherents.' We base this find-
ing on the following evidence: (a) The employees who lost their jobs
were given no advance notice of the proposed shift in method of opera-
tions, a very unusual business practice; (b) the drivers were offered the
opportunity to purchase admittedly decrepit equipment at a price four
times its market value and were offered a split as owner-drivers less
favorable than that which had already been offered outside owner-
operators. The drivers were also given less than 24 hours in which to
decide to take up the Respondent's offer and presumably to arrange
necessary financing. All these conditions, exorbitant price for equip-
ment, less favorable split of revenue proceeds, and short time in which
to make a decision and find the money for the purchase, indicate that
the offer to the discriminatees was not bona fide, but was intended to
be rejected; (c) the offer to Edgerly, who was considered by the
Respondent to be a very competent and desirable driver, to remain at
home with full pay for 2 weeks or until recalled, indicates that the
Respondent did not intend the changeover to owner-operators to be
permanent. In fact, the Respondent discontinued using owner-opera-
tors on a regular basis on or about December 10; and (d) finally, the
Respondent's hostility to the unionization of its employees is evi-
denced by Foreman Arnott's threat that, "they will never get a god-
dam union in here." 2 For the foregoing reasons, we find, as did the
Trial Examiner, that the Respondent: discriminatorily discharged
Edgerly, Ford, and Champignon.
The R. C. Mahon Company, 118 NLRB 1537.
We also consider, but only as background , the Respondent 's discharge of employees
engaged in concerted activities , in October 1957, more than G months prior to the filing
of the charges.
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since Leeks struck in protest against these unfair labor practices,
he was an unfair labor practice striker and was entitled to be rein-
stated to his old job on making an unconditional offer to return to
work. This he did through the Union on November 27. By refusing
to reinstate him on and after that date the Respondent unlawfully
discriminated against him.
2. We further find, in agreement with Trial Examiner, that
Edgerly, Ford, Champignon, and Leek did not engage in such miscon-
duct as would justify withholding the usual reinstatement remedy.
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, J. Mitchko, Inc.,
Lafayette, New Jersey, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in Dairy Transportation Drivers,
Helpers and Terminal Employees, Local Union No. 770, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or in any other labor organization of its em-
ployees, by discharging employees or otherwise discriminating in
regard to hire or tenure of employment or any term or condition of
employment.
(b) In any other manner interfering with, restraining, or co-
ercing its employees in their right to self-organization, to form, join,
or assist Dairy Transportation Drivers, Helpers and Terminal Em-
ployees, Local Union No. 770, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, 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.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer to Owen Edgerly, Joe Ford, George Champignon, and
Melvin Leek immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to their
seniority or other rights and privileges and make them whole, in the
At Van Riper's request, the General Counsel moved that his name be deleted from
the complaint. The motion was granted by the Trial Examiner.
J. MITCHKO, INC. 1121'
manner set forth in section V of the Intermediate Report entitled
"The Remedy."
(b) Preserve and make available to the Board or its agents, upon,
request, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,,
and all other records necessary to analyze the amount of back pay due
under the terms of this Order.
(c) Post at its garage at Lafayette, New Jersey, copies of the
notice attached hereto marked "Appendix A." 4 Copies of said
notice, to be furnished by the Regional Director for the Twenty-
second Region shall, after being signed by a duly authorized represen-
tative of the Respondent, be posted by the Respondent immediately
upon receipt thereof and maintained by it for 60 consecutive days.
thereafter, in conspicuous places, including all places where notices.
to employees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are not altered,,
defaced, or covered by any other material.
(d) Notify the Regional Director for the Twenty-second Region
in writing, within 10 days from the date of this Order, 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.
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 Labor Manage-
ment Relations Act, we hereby notify our employees that:
WE WILL NOT discriminate against any employee in regard to
hire or tenure of employment or any term or condition of employ-
ment because of membership in or activities on behalf of any
labor organization.
WE WILL offer to the employees named below immediate and
full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights and
privileges previously enjoyed, and will make them whole for any
loss of pay they suffered as a result of discrimination against.
them :
Owen Edgerly George Champignon
Joe Ford Melvin Leek
WE WILL NOT in any manner interfere with, restrain, or coerce
gur employees in the exercise of their right to self-organization,.
508889-60-vol. 123-72
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to form labor organizations, to join or assist Dairy Transporta-
tion Drivers, Helpers and Terminal Employees, Local Union
No. 770, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, 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 our employees are free to become or remain members of the
above-named Union or any other labor organization.
J. MITCHBO, 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
STATEMENT OF THE CASE
Upon a charge filed on May 14, 1958, by Dairy Transportation Drivers, Helpers
and Terminal Employees, Local Union No. 770, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter re-
ferred to as the Union, the General Counsel of the National Labor Relations Board,
herein called respectively the General Counsel 1 and the Board, by the Regional
Director for the Twenty-second Region (Newark, New Jersey), issued its complaint
dated September 30, 1958, against J. Mitchko, Inc., herein referred to as the Re-
spondent, alleging that the Respondent had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3)
and Section 2(6) and (7) of the Labor Management Relations Act, 1947, 61 Stat.
136, herein called the Act. Copies of the charge and the complaint together with
notice of hearing thereon were duly served upon the Respondent and the Union.
The Respondent duly filed its answer admitting certain allegations of the complaint
but denying the commission of any unfair labor practices.
Pursuant to notice, a hearing was held at Newton, New Jersey, on November 17
and 18, 1958, inclusive, before the duly designated Trial Examiner. All parties
appeared at the hearing, were represented by counsel or representative and were
afforded full opportunity to be heard, to produce, examine, and cross-examine wit-
nesses, to introduce evidence material and pertinent to the issues, and were advised
of their right to argue orally upon the record and to file briefs and proposed findings
and conclusions or both. Oral argument was waived but a brief was received from
the Respondent on December 11, 1958. Upon the entire record in the case, and
from my observation of the witnesses, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
J. Mitchko, Inc., is, and has been at all times herein mentioned, a corporation
duly organized under and existing by virtue of the laws of the State of New Jersey.
i This term specifically includes the attorney appearing for the General Counsel at the
hearing.
J. MITCHKO, INC. 1123
At all times herein mentioned the Respondent has maintained its principal office
and place of business at Lafayette , New Jersey , and is now and has been continuously
engaged in the trucking business in transporting , hauling, and shipping lime, lime-
stone, and other related products . During the past year, the Respondent, in the
course and conduct of its trucking operations within the State of New Jersey, derived
an income in excess of $ 100,000 from said operations which were performed for
various enterprises, including Limestone Products Corporation, United States
Gypsum Company and Ace Asbestos Company, each of which firms annually ships
goods valued at in excess of $50,000 to points outside the State of New Jersey.
The complaint alleged , the Respondent admitted , and the Trial Examiner finds
that the Respondent is, and has been at all times material herein, engaged in com-
merce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Dairy Transportation Drivers, Helpers and Terminal Employees , Local Union
No. 770, International Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America is a labor organization admitting to membership employees of
the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The facts
On October 21, 1957 ,2 the Respondent employed one Melvin Leek as a driver
in its trucking operations.
On October 23, the Respondent 's then drivers ,3 except Leek , met at the home of
driver Burk where they prepared a list of wage and working condition changes
which they desired from the Respondent. Owen Edgerly was selected as the driver
to present this list to Benjamin Butkus, president of Respondent corporation.
Sometime on the afternoon of October 24, this list of demands got into Butkus'
hands as intended.
Early on the morning of October 25, the drivers decided to wait at the Respond-
ent's garage for the arrival of Butkus in order to get his reaction to the listed demands
made the previous day 'before they pulled out with their loaded trucks. About 7
a.m. Foreman Dispatcher Al Arnott arrived at the garage , asked the drivers waiting
around why they were not on the road with their trucks and then retired to the
garage to make a phone call. Arnott reappeared and informed the employees that
Lou Kennedy 4 wanted to speak to one of them over the telephone . Wilbur ( Bucky)
Ford spoke to Kennedy over the telephone for a short period and, after hanging up,
reported back to the employees in the room that Kennedy had told him that the
drivers were either to take their trucks down the road or they were "through" ( fired).5
Despite this threat the drivers determined to continue to wait for Butkus.
The employees saw Butkus about 10 a .m. when he greeted them with the state-
ment that they were a "fine bunch of gentlement to walk out on him." The em-
ployees and Butkus talked over the proposals the men had listed and Butkus stated
that he thought that the Respondent could do something about some of them later
on and that he would check with Kennedy about those proposals. Butkus stated
he did not have the discharge paychecks prepared at that time and requested the
drivers to return that afternoon for their checks .6
When the drivers returned about 2 p.m., Butkus asked them to come into his
office one at a time in order to get their checks. When it came Edgerly's turn to go
into the office, Butkus informed him that he, Edgerly, was a good driver, that
Butkus had nothing against him and that, if Edgerly wanted to come back to work,
all he had to do was to tear up his check . When Edgerly was undecided , Butkus
also told Edgerly to return the next morning and stated that, perhaps , they could
reinstate Edgerly the next day but that he would have to consult Kennedy first.
On the morning of October 26 Butkus and Lou Kennedy met with the drivers
(except Leek whom Butkus had sent on a trip ) with the statement that the "mess"
2 All dates herein are in the year 1957 , unless otherwise specified.
8 Charles Burk, Wilber ( Bucky ) Ford, Joe Ford, George Champignon , Fred Van Riper,
and Owen Edgerly.
4 Kennedy was a coowner with Butkus of Respondent.
r ,Admittedly this evidence introduced by a witness who was not a party to telephone
call is hearsay . However , the Trial Examiner is making this as a finding of fact herein
because Butkus subsequently admitted on the record that Kennedy had confided to
Butkus the fact that he had discharged the employees as Kennedy had authority to do.
6 Apparently these were supposedly the final discharge pay checks.
1.124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be all cleared up by the time Leek returned . After a speech by Kennedy
on the general subject of helping the Respondent build up its business , the drivers
were told that they could fill out new application for employment forms and, if the
Respondent could use them , they would be called back to work but that, if recalled,
their seniority would be determined by the order of their recall . All the drivers
filled out such new applications for employment.
During that same meeting Butkus told the drivers that he would never rehire
Burk, at whose home the meeting of October 23 had been held, or "Bucky" Ford
again.
When Leek returned from his trip , Butkus told him that, as Leek "only went
along with the other drivers to find out what was going on," Leek would not be
required to fill out a new application for employment and would be the top man
on the new seniority list.
That same Saturday , October 26 , the Respondent hired a driver by the name of
Henry Kennedy who became the number two man on the seniority list following
Leek.
That evening Edgerly, Joe Ford, and Champignon were recalled to work by Butkus
and thus, according to the new seniority set up arranged by Butkus , became the
lowest employees on the new seniority roster despite their longer period of employ-
ment by Respondent.?
On November 6 Leek was the last driver on the road and as he was going through
Dover, New Jersey, he noted a congregation of the Respondent 's trucks at a diner
in that town . Leek stopped in the diner and found Champignon , Joe Ford, and
Owen Edgerly there . A discussion of the conditions at the Respondent 's plant
ensued. Leek was critical of the approach the employees had used in the abortive
October 25 effort at concerted activity . When his opinion was requested , he sug-
gested that the employees needed a union . and then agreed to see Chester Decker,
president of Local 770, on their behalf.
Leek did see Decker that same evening and it was agreed that they would hold a
meeting for the employees the following evening at Leek's home.
On the evening of November 7 Decker met with drivers Leek , Joe Ford,
Champignon , Van Riper , and Edgerly at Leek's home in Branchville , New Jersey.8
After discussing working conditions and wages and what Decker said that his union
could do for the employees , the drivers all signed union cards and then elected
Leek the shop steward . Decker agreed to write the Respondent and request recog-
nition for his union.
On November 8 Decker misdirected such a letter to the Respondent to Andover,
New Jersey , instead of to Lafayette , Respondent 's correct post office address. The
letter informed the Respondent that the Union represented the Respondent's em-
ployees and that Leek had been selected as shop steward. Although other such
letters misdirected to Andover had been received by the Respondent , apparently
this one never reached Butkus or the Respondent nor was it returned to the Union.
A few days later Foreman -Dispatcher Arnott inquired of Edgerly at the Re-
spondent 's garage "What 's this about a union ?" Edgerly denied having any knowl-
edge. Arnott made the same inquiry of other drivers.
On November 13 Arnott told employee Kennedy "They will never get a union
in here."
At the end of the working day of Friday , November 15, Butkus informed Edgerly,
Ford , and Champignon that the Respondent had decided to operate with owner-
operators ( men owning and operating their own tractors) thereafter due to the bad
condition into which the Respondent 's equipment had fallen so that he was going
to have to let each of the employees as the lowest men on the seniority list go.
He then offered to sell to any of them who were interested any of the tractors the
Respondent had for either $2,000 or $2 , 500 apiece dependent upon whether the
tractor involved had a certain type pump or not. He also said, if any of them
decided to buy such a tractor , that driver would be given the first opportunity to
work for the Respondent as an owner-operator at a 55 to 45 percent break.
Apparently Edgerly was the only one to ask for a little time to consider this
proposition . To Edgerly , Butkus also suggested that if Edgerly decided against
buying a tractor then he should go home and stay a couple of weeks , that his pay
would continue during this period and that , when Butkus telephoned to him in a
couple of weeks , Edgerly could go back to work for the Respondent.9
T The record is not clear on how or why Van Riper became the number 3 man on the
new seniority roster.
8 The only one of Respondent 's drivers who was absent was Henry Kennedy.
P This finding is based upon the undenied testimony of Owen Edgerly.
J. MITCHKO, INC. 1125
The following day, Saturday , November 16, Edgerly told Butkus that he could
not buy one of the Respondent 's tractors . After hearing this decision , Butkus asked
Edgerly about his reaction to the other part of the offer. Edgerly answered that
he did not know as he had signed with the Union and did not want to let the other
men down.
Also early on November 16 the drivers of the Respondent including the three laid
off the night before again met at Leek 's home regarding the layoff. It was there
decided that Decker and Leek should talk the matter over with Butkus.
Leek and Decker thereupon went to the Respondent 's garage where they saw
Butkus and also saw three owner-operators preparing for work. After introducing
himself, Decker announced that his union represented the Respondent 's drivers
and asked if Butkus had received his letter of November 8. When Butkus denied
having received that letter , Decker showed him a copy which he had with him.
Butkus told Decker that he was laying off the three lowest men on the seniority
list because they were not good employees , because Respondent 's equipment was in
bad shape and because he wanted to get rid of the men . Butkus offered to talk to
Decker about the Respondent 's three remaining drivers but refused to talk about
the three who had already been laid off. Decker demanded that they talk about all
six drivers . Butkus refused . About this time Decker went over to the three owner-
-operators working around the garage and informed them that there was a labor
dispute on with Respondent and stated that they should not get mixed up in it. At
this point Butkus ordered Decker and Leek off the Respondent 's property.
Either this same day or the day before Butkus warned driver Van Riper "Don't
louse me up on Monday or you will be through and you will not work for me
:again." 10
About 2 p.m. on November 17 the five drivers met again at Leek's home where
they decided that they would protest the layoff of Ford, Edgerly , and Champignon
by picketing the Respondent's place of business the following day, Monday,
November 18.
As Leek was waiting in front of the garage about 4 o'clock on the morning of
November 18, Butkus came up to his automobile and asked if he was going to work.
Leek told him that, if Van Riper was going to work, he would go to work. Butkus
answered "I guess you and Van Riper are fired then, if you are not going to work."
Thereafter all the drivers , including Henry Kennedy, set up a picket line in front
of Respondent 's place of business on the morning of November 18. They also
followed Respondent 's trucks and picketed at the destinations of those trucks as they
were unloading.
On November 27 the Union sent the following telegram addressed to, and re-
,ceived by, the Respondent : "We hereby make unconditional request for reinstate-
ment of your employees Van Riper and Leek. These employees will return to work
not withstanding our continued protest to you with respect to your layoff of Ford,
Owens and Champignon . Please advise . ( Signed ) Chester E . Decker, President
'Teamsters Local 770."
Driver Kennedy abandoned the strike and returned to work on Wednesday,
November 20.
The Respondent hired a new driver on November 25 and a second such driver
on December 12. Respondent also continued to use owner-operators from No-
vember 18 to December 10: After that the Respondent employed owner -operators
only as it had done before November 18, i.e., to haul loads only when the Respond-
ent's own employees could not handle them.
The picketing ceased after a few weeks and at least by December 20, 1957.
Finally on June 16, 1958, the Respondent rehired Van Riper as a driver.ll
Except for Van Riper Respondent has reinstated none of the other discharged or
striking employees.
B. Conclusions
Under these facts the Respondent in its brief purports to see no unfair labor
practices whereas, judging from the complaint only-because the General Counsel
neglected to expand his theory in a brief-the General Counsel obviously sees three
unfair labor practice discharges and an unfair labor practice strike along with
interference , restraint , and coercion.
'u Although admitting having made this remark to Van Riper, Butkus denied having
made the same remark to Leek.
"At Van Riper' s request , the General Counsel moved that his name be deleted from
the complaint herein . This motion was allowed.
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The facts prove that as of October 23 to 25, 1957 , the Respondent 's employees
were engaging in a protected concerted activity for their own mutual aid and pro-
tection by drawing up their list of proposed changes in wages, hours, and working
conditions.
This October 25 episode revealed the Respondent 's attitude toward concerted
activity and organization by its employees . The Respondent purported to discharge
its employees for having engaged in this concerted activity and then established a
new seniority list by hiring its "discharged employees " as new employees under new
employment application forms. It also refused to rehire driver "Bucky " Ford and
driver Charles Burk at whose home the concerted action took place and, according
to Butkus , it would never thereafter rehire them . These actions were clearly in
retaliation for the concerted action of the drivers in striking and refusing to drive
their trucks down the road until after they had conferred with Butkus about the
demands they concertedly were making on the Respondent . This was spelled out
in Kennedy 's telephone conversation with Ford and confirmed by his admission to
Butkus. It was even more clearly demonstrated when Butkus informed Leek, a
driver hired only 2 days before the concerted activity began, that he, Leek, need not
fill out a new application for employment form as he "only went along" to see
what it was all about and that he would thereafter be number one on the new
seniority list the Respondent was establishing . This conclusion is further buttressed
by the fact that Henry Kennedy who was hired by Respondent during the concerted
activity became number two on the seniority list whereas the illegally discharged
drivers with much longer actual seniority were placed at the bottom of the new
seniority roster.
Under the Act the Respondent had no right to discriminate against its employees
for having engaged in protected concerted activities by (1) discharging them while
they were involved in a current labor dispute; ( 2) requiring the employees so in-
volved to execute new application for employment forms; ( 3) rehiring such em-
ployees as new employees; or (4) establishing a new and discriminatory seniority
list. Although these actions by the Respondent were obviously violative of Sec-
tion 8 ( a)(1) and ( 3) of the Act , these acts themselves may not be found as unfair
labor practices here as they occurred more than 6 months prior to the filing of the
charge herein . However , they are admissible on the question of the motivation
of the Respondent in its subsequent actions.
It is also obvious from the October 25 episode that the Respondent well knew
that its employees were engaging in concerted activities especially as Butkus made
it clear to Leek that Leek was being favored by the Respondent because it believed
that Leek had only participated with the other employees to find out what was
going on.
It is, therefore , obvious that the Respondent discriminated against Edgerly, Ford,
and Champignon by reducing them in seniority at the time of the October 25 episode
because they engaged in concerted activity.
On November 16 the Respondent suddenly began using three owner -operator
truckdrivers to handle half of its business and consequently laid off the three
employees lowest on the then seniority roster, Edgerly , Ford, and Champignon.
The Respondent 's brief contends that at that time the Respondent decided to
conduct its operations through owner-operators because of the poor condition into
which the Respondent 's own equipment had fallen , that this decision was taken
before the Respondent had any knowledge of the existence of any "union activity "
among the employees and that, because of the change in operations , it thus had to
lay off the three employees lowest on the seniority roster. Respondent stressed the
fact it offered to sell each of them one of the Respondent's allegedly worn out
tractors so that the driver could become an owner-operator and have priority in
securing work from the Respondent.
That is the theory advanced by the Respondent but it is not borne out by the facts,
disclosed in this record.
According to Butkus , the first consideration given by the Respondent to the use
of owner-operators occurred immediately following the October 25 incident and at
the time the Respondent was taking discriminatory action against those employees
who had engaged in concerted activities . The possibility of using owner-operators
would seem to fit closely into the same pattern.12
The condition of the Respondent 's equipment as of November 13 was question-
able. According to Butkus , its condition was so deplorable by November 13 that
he considered it uneconomical for the Respondent to continue to operate its own
" See The Houston Chronicle Publishing Company, 101 NLRB 1208 . Reversed on other
grounds 211 F. 2d 848 (C.A. 5).
J. MITCHKO, INC. 1127
equipment. But at the same time he offered to sell any of the Brockway 1947-48
tractors which the Respondent owned to the three complainants here for $2,000 or
$2,500 dependent upon whether the particular tractor selected was equipped with
a certain type pump. This offered price and especially Butkus' testimony of the
backbreaking work which had been put upon the equipment in order to put it in
shape from the time of its acquisition by the Respondent in March 1957 would
seem to belie to a considerable degree at least Butkus' other description of the
equipment. However, Decker's testimony that Respondent's equipment was the
worst he ever saw on the highway tended to confirm Butkus' verbal description of
the equipment. But Butkus was caught in somewhat of a dilemma trying to
justify his offered price and still blame the condition of the same equipment for
the Respondent's use of owner-operators. This contradiction was heightened by
what the Respondent's brief refers to as "expert testimony" to the effect that
1947-48 Brockway tractors had a market value of only $500.
The General Counsel questioned the bona fides of the Respondent's offer to
sell its equipment to the men laid off on November 15 so that they could become
owner-operators and thus continue hauling for the Respondent with, incidentally,
the very same equipment which Respondent considered uneconomical to operate.
Butkus, at least, did not consider these two positions anomolous . The facts show
that Butkus gave few, if any , indications of a bona fide willingness to sell to Ford,
Champignon, or Edgerly. Butkus offered the sale on November 15 and required
an answer no later than the following morning despite , or because of, the fact
that a few days before he had made arrangements with three owner -operators to
report for work on the morning of November 16. As few persons can arrange to
get $2,500 or even $2,000 between the end of one working day and the time to
begin work the following day, it would seem that Butkus hardly expected to make
a sale. If the arrangements previously made by Butkus with the owner-operators
were as nebulous in fact as Butkus claimed at the hearing, it hardly seems probable
that the owner-operators would have appeared for work on the morning of Novem-
ber 16. Furthermore the $2,000 or $2,500 price tag would appear to have been
considerably beyond the market value, as well as the real value if Butkus can be
believed as to the actual condition of the Brockways . In addition , Butkus offered
the laid-off employees a 5 percent smaller cut of the proceeds than he had pre-
viously offered to the other owner-operators. But the real sockdologer to this as
a bona fide offer appears to be the offer made by Butkus to Edgerly to go home
for a couple of weeks and then report back to work when called combined with the
fact that the Respondent actually ceased using owner-operators on or about De-
cember 10 when Respondent reverted to its former practice of using its own worn
out equipment even prior, in some cases, to the contemplated repair of most of
said equipment. These factors lead but to the conclusion that the offer to sell
to the three employees was no more bona fide than the temporary (November 18-
December 10) use of owner-operators by the Respondent. It thus becomes quite
obvious that the planned temporary use of owner -operators was merely an expe-
dient device by which to eliminate three 13 employees who were prone to engage
in concerted , as well as union , activities.
As to the Respondent's contention that it was ignorant of the fact that the
employees were engaging in union activities , the Respondent had good cause to know
as early as October 24 that Ford, Edgerly, and Champignon had concertedly made
demands upon the Respondent . Of course at that time no union was involved and
consequently the activities were "concerted activities" rather than "union activities."
On November 7 the Union did enter the picture when the employees joined it.
Within a day or so thereafter Arnott began making inquiries about "this union
business" and stated categorically that the Union would never get in to the Re-
spondent's plant. Arnott's knowledge was that of the Respondent as he is admit-
tedly a supervisor. Even without this proof of the Respondent's actual knowledge,
however, it would be hard to believe that in as small a shop as the Respondent's
the Respondent could have been kept in the dark after the men had actually joined
the Union.
It is significant that it was just about the time the employees joined the Union
when the Respondent actually. made contact with the owner-operators . So at the
time of the men 's first effort at concerted action Butkus thought up the idea of
using owner-operators and then almost simultaneously with the date the employees
actually joined the Union , the Respondent first implemented the idea by actually
contacting some owner-operators . This coincidence appears to be more than mere
happenstance. All of which leads but to the conclusion that the Respondent was
not in fact ignorant of the Union , as the Trial Examiner here finds.
U Possibly excepting Edgerly for whom Butkus clearly had a high regard.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All this tends to confirm the prima facie showing made by the General Counsel
that Ford, Edgerly, and Champignon were eliminated by the Respondent on No-
vember 15 not because the equipment was in such bad shape but because they were
once again engaged in concerted, as well as union, activity in violation of Section
8 (a) (3) and (1) of the Act. The Trial Examiner so finds.
Employees Leek and Van Riper determined to strike on November 18 in order
to protest the discharges of Ford, Edgerly, and Champignon. As they were striking
to protest an unfair labor practice by the Respondent, their strike must be considered
an unfair labor practice strike.
Admittedly Butkus informed Van Riper that if he did not report to work Monday,
November 18, he would never work for the Respondent again. Although Butkus
denied having made this same statement to Leek, it is obvious that the same applied
to Leek. Hence, when Leek and Van Riper joined in picketing the Respondent's
plant on November 18, the Respondent considered them "through," or discharged,
as was further evidenced by the Respondent's failure or refusal to reply to the
November 27 telegram offering the unconditional return of Leek and Van Riper.
By ignoring such request the Respondent in effect refused the same. Thus on Novem-
ber 18, Leek and Van Riper considered themselves to be striking employees whereas
the Respondent considered them as discharged.
The Respondent claims one further defense to the reinstatement of the above five
employees: Misconduct on the picket line. This alleged misconduct consisted in:
(1) some of Respondent's former or striking employees followed trucks and picketed
the premises of Respondent's customers as Respondent's trucks drove in to make
deliveries; and (2) alleged interference with Respondent's trucks.
As for the picketing of the premises of customers while Respondent's trucks were
making deliveries, the Board and the courts have held this to be a permissable pri-
mary activity and hence it cannot be made the basis for refusing reinstatement to
these employees. On at least one occasion Leek and Van Riper requested permis-
sion from the customer to picket the Respondent's truck and, when refused, desisted
therefrom.
Lest anything the Trial Examiner may say here be misunderstood, let it be fully
understood that he is in no way condoning the use by pickets of automobiles on
public highways attempting to cause damage to an employer's trucks or drivers. But
the facts here show that, while the Respondent's drivers may not have appreciated
the presence of the pickets' automobile along his route, there was only one instance
testified to where any action by the pickets caused-or may have caused-difficulty
to the driver of the truck. That one instance was the occasion when striker Van
Riper slowed his automobile in front of the tractor-trailer loaded with 20 tons of
lime so that that tractor-trailer had to start its climb of a hill at only 30 miles per
hour which, theoretically, may have required the tractor driver (who did not testify)
to shift into "Grandma," or lowest gear, before reaching the top of the grade. This
may have inconvenienced the tractor driver but it was not dangerous especially on
the twisting, turning hilly roads of northwest New Jersey.
The only really dangerous episode related at the hearing was apparently caused
by Butkus himself when, a few minutes after one 'of his trucks had left the plant
to make a delivery, he undertook to "protect," in his phraseology, his truck from
the strikers by impeding the progress of an automobile full of pickets on the public
highway when it appeared to start to follow the departing truck. The method of
protecting this truck used by Butkus was to so maneuver his own automobile that
the car containing the pickets behind his could not pass the Butkus' car. When,
according to Butkus, he became "careless" and the picket car managed to pass his
automobile. this two-car race on a public highway reached a speed estimated by But-
kus to be 90 miles per hour. And yet, unimaginable as it seems, according to Butkus
these two speeding automobiles were never able to catch the tractor-trailer ahead of
them despite its 20-ton load. From Butkus' own description of this episode. it is
clear that Butkus himself instigated this highly dangerous game on the public high-
way. It would seem that Butkus can now hardly be heard to say that he refused
reinstatement because of misconduct on the part of the other participants in the
race which he himself instigated.
On another occasion Butkus was similarly "protecting" his truck. On this occasion
Butkus again stationed himself in his automobile behind the truck and in front of
the picket car. According to Butkus' description of this episode, he "gave the picket
car too much room" permitting it to pass both the Butkus' car and the truck, where-
upon Butkus in his turn passed both the truck and the picket car and then slowed
both picket car and the truck to such a slow speed that finally the truck passed both
automobiles. This apparently ended this particular episode. But on this occasion
it is obvious that it was the driving of Rutkus which slowed both the picket car and
the truck and not the action of the pickets.
J. MITCHKO, INC. 1129
Van Riper was an active participant either -as a driver or a passenger in the picket
car in several .. of. these, so-called "misconduct" episodes . It was Van Riper 'as the
driver of the picket car who slowed the truck to 30 miles per hour just before it started
climbing a hill. Yet on June 16, 1958, although knowning Van Riper to have been
the driver on that occasion , the Respondent rehired Van Riper after Van Riper had
apologized to Butkus for having participated in the strike . Thus, if it can be said that
the pickets engaged in misconduct in episodes in which Butkus was not an active par-
ticipant , it would seem that the Respondent condoned such misconduct by rehiring
Van Riper , whose active participation in such "misconduct" was known to Respondent.
Except for the two episodes involving Butkus involving the 90-mile per hour chase
over public highways and the slowing of a picket car and one of its own trucks, the
Trial Examiner can find no acts of "misconduct" such as would justify a holding
that the discharged employees or striking employees had forfeited their right to rein-
statement . Pickets have as much right to the public highways as any other citizens.
Of course they have no right to use those highways to endanger the public , Respond-
ent's property , or Respondent 's employees . The striking or discharged employees
had the right to picket Respondent 's trucks while making deliveries to customers as
that is primary picketing . Although being followed by picket cars may have been
an annoyance to the Respondent 's drivers, still the pickets as citizens had the right
to use the public highway so long as they were not endangering the public , Respond-
ent's property , or drivers deliberately.
As for the two episodes mentioned above which did constitute both dangerous
driving and misconduct on the public highways, the Respondent is in no position
because of its own participation therein , if not instigation of, these dangerous episodes
to maintain that the employees who also participated therein were thereby deprived
of their right of reinstatement.
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, 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
Having found that the Respondent has engaged in unfair labor practices, it will
be recommended that it cease and desist therefrom and that it takes certain affirmative
action designed to effectuate the policies of the Act.
It having been found that the Respondent discriminated in regard to the hire and
tenure of Owen C. Edgerly , Jr., George Chamnignon. and Joseph Ford by discharging
them on November 15, 1957, the Trial Examiner will recommend that the Respond-
ent offer to each of them immediate and full reinstatement to his former , or sub-
stantially equivalent , position , without prejudice to his original seniority or other
rights and privileges' and make ' each of them whole for any loss of pay he may
have suffered by reason of said discrimination against him by payment to him
of a sum of money equal to that which he would have earned as wages from the
date of the discrimination against him to the date of the offer of reinstatement in
accordance with a formula set forth in F. W. Woolworth Company , 90 NLRB 289.
. it also having found that the Respondent discriminated in regard to the hire
and tenure of Melvin E. Leek by refusing to reinstate said Leek upon the uncondi-
tional offer to return to work on November 27, 1958 , the Trial Examiner will recom-
mend that the Respondent offer to Leek immediate and full reinstatement to his
former, or substantially equivalent position , without prejudice to his seniority or
other rights and privileges and make him whole for any loss of pay he may have
suffered by reason of said discriminaiton by payment to him of a sum of money
equal to that which he would have earned as wages from November 27, 1957, to the
date of the offer of reinstatement less his net earnings during such period in accord-
ance with the formula set forth in F. W . Woolworth Company , 90 NLRB 289.
In the opinion of the Trial Examiner, the unfair labor practices committed by the
Respondent in the instant case are such as to indicate an attitude of opposition to
the purposes of the Act generally. In order, therefore , to make effective the inter-
denendent guarantees in Section 7 of the Act , thereby minimizing industrial strife
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:
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Dairy Transportation Drivers, Helpers and Terminal Employees, Local Union
No. 770, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization within the meaning of Section 2(5) of
the Act.
2. By discharging Owen Edgerly, Joe Ford, and George Champignon and by
refusing to reinstate Melvin Leek, thus discriminating in regard to their hire and
tenure of employment, because each of them have engaged in protected concerted
and union activities for the purposes of collective bargaining or other mutual aid
or protection or because of his membership and activities on behalf of the Union,
the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a) (3) and (1) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, Respondent has committed unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Bakersfield Foods Co., Inc. and Teamsters, Chauffeurs, Ware-
housemen & Helpers Local No. 87, International Brotherhood
of Teamsters , Chauffeurs , Warehousemen & Helpers of
America. Cases Nos. 21-CA-3059, 21-CA-3063, 21-CA-3173,
and 21-CA-3276. May 14, 1959
DECISION AND ORDER
On February 27, 1959, Trial Examiner Martin S. Bennett issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices, and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. The Trial Examiner
also found that the Respondent had not engaged in certain other un-
fair labor practices and recommended that the complaint be dis-
missed with respect to such allegations. Thereafter, the Respondent
filed exceptions to the Intermediate Report with a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Chairman Leedom and Members Bean and Jenkins].
. The Board 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 In-
termediate Report, the exceptions and brief, and the entire record
in these cases, and hereby adopts the findings,' conclusions, and
1 No exceptions were taken to the Trial Examiner ' s findings that Respondent did not
discriminate against Smith , Joe Castaneda , and Emigean and Vincent Sanchez, and those
findings are hereby adopted.
123 NLRB No. 145.