JK & K Transportation Corp., Inc.

National Labor Relations Board - Board Decisions

Jul 30, 1982

262 N.L.R.B. 1481 (N.L.R.B. 1982)

K & K TRANSPORTATION CORP,
K & K Transportation Corp., Inc. and Terry G.
Geho and Robert E. Hudson and Eva Vesper.
Cases 17-CA-9826, 17-CA-9853, and 17-CA-
9882
July 30, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND ZIMMERMAN
On October 22, 1981, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief and General Coun-
sel filed cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge only to the extent consistent herein.
The Administrative Law Judge found that Re-
spondent violated Section 8(a)(1) of the Act by re-
fusing to reinstate Sharon Hudson. We disagree.
At issue is whether Respondent had a basis for
concluding that Sharon Hudson was involved with
her husband, Robert Hudson, in the sabotage of
one of Respondent's trucks on November 25, 1979.
The Administrative Law Judge correctly set forth
the general rule with regard to strike misconduct;
i.e., that an employer must demonstrate an honest
belief that an employee was engaged in strike mis-
conduct. Once an employer establishes this belief,
the burden shifts to General Counsel to prove that
the employee was not in fact engaged in the activi-
ty in question or that the activity was protected.
General Telephone Company of Michigan, 251
NLRB 737 (1980). And in an unfair labor practice
strike, the misconduct of the striker must be bal-
anced against the severity of the employer's unfair
labor practices which provoked the dispute. Coro-
net Casuals, Inc., 207 NLRB 304 (1973).2
Robert and Sharon Hudson worked as a driving
team for Respondent prior to the strike. The al-
leged misconduct of the Hudsons occurred on No-
General Counsel has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
' In joining the dismissal of the complaint as to Sharon Hudson. Chair-
man Van de Water finds it unnecessary to rely on Coronet Casuals; Inc.,
207 NLRB 304 (1973).
262 NLRB No. 182
vember 25, 1979, and is fully described by the Ad-
ministrative Law Judge. Briefly the facts are as fol-
lows: one of Respondent's drivers, Joseph Roy,
had stopped his rig at a truckstop in Council
Bluffs, Iowa. Upon returning from a change booth,
Roy noticed Robert Hudson leave the cab of Roy's
truck and run toward a blue and white auto, which
he testified belonged to Hudson. Sharon Hudson
was in the car. Roy examined his rig, found no ap-
parent damage, and drove off. Upon traveling a
short distance, the trailer dropped from the tractor
causing extensive damage. The trailer dropped be-
cause the kingpin had been removed from the fifth
wheel.3 Roy informed Respondent's president, Ev-
erett Alger, of the incident upon returning to the
facility, 4 identifying both Hudsons in his report.
Alger filled out a "Work Stoppage and Equipment
. . .Damage Report" wherein he set out the facts
as related to him by Roy, noting that Robert
Hudson had pulled the kingpin on the trailer and
that Sharon Hudson was also seen at the truckstop.
The Administrative Law Judge found, and we
agree for the reasons set forth by him, that Re-
spondent established a sufficient basis for its belief
that Robert Hudson had sabotaged Roy's truck and
that Robert Hudson's conduct was sufficiently seri-
ous to support his discharge. The Administrative
Law Judge, however, found insufficient basis to
conclude that Sharon Hudson participated in the
misconduct.
As a general rule unauthorized acts of violence
on the part of individual strikers on a picket line
are not chargeable to other union strikers in the ab-
sence of proof that identified them as participating
in such violence. Here, however, the misconduct
did not occur on a picket line. Thus, we are not
confronted with the situation of a few striking em-
ployees engaging in misconduct under cover of
other nonparticipating striking employees. Rather,
the misconduct in question occurred miles away
from Respondent's facility and was engaged in by
two employees who, as husband and wife, had ap-
parently jointly agreed to travel to that location. In
these circumstances, as the Administrative Law
Judge found, the sabotage was not an act of impul-
sive behavior done on the spur of the moment, but
was apparently the result of premeditated conduct
engaged in far from the picket line. Taken as a
whole, the events in question were sufficient to es-
tablish an honest belief by Respondent that Sharon
Hudson was a party to her husband's sabotaging its
I The kingpin and fifth wheel are mechanisms that connect a trailer to
a tractor.
4 Respondent's facility is located in Omaha, Nebraska.
1481
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
truck,5 and that she, was well as he, was not enti-
tled to reinstatement. Additionally, General Coun-
sel failed to overcome Respondent's honest belief
by proving that Sharon Hudson had not engaged in
the alleged misconduct. 6 Accordingly, we shall dis-
miss the complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
MEMBER FANNING, dissenting in part:
Contrary to my colleagues, I agree with the Ad-
ministrative Law Judge that Respondent did not
have an honest belief that Sharon Hudson was
jointly responsible with her husband, Robert
Hudson, for sabotaging Respondent's truck. The
Board has long held that-to establish an honest
belief-there must be some concrete proof that an
employee has engaged in the alleged misconduct
before that misconduct will be attributable to the
employee; in other words, the mere presence of the
employee is not enough to establish the miscon-
duct. General Telephone Company of Michigan, 251
NLRB 737, 739 (1980); MP Industries, Inc., 227
NLRB 1709 (1977); Coronet Casuals, Inc., 207
NLRB 304 (1973).
This necessary concrete proof is lacking in the
present situation. Sharon Hudson was seen in the
Hudson automobile at the time of her husband's
misconduct. She was not seen aiding her husband
nor did Respondent have a reason to believe that
she did aid her husband. Respondent's contention
tfiat it held an honest belief that she engaged in
misconduct is weakened, and in my opinion de-
stroyed, by the failure of its president, Everett
Alger, to mention his belief that Sharon Hudson
had engaged in the misconduct when Alger spoke
to Robert Hudson and accused him of the sabo-
tage. Additionally, in its letter to the Union detail-
ing the incident, Respondent failed to mention its
belief that Sharon Hudson was involved in the inci-
dent. My colleagues apparently find that Alger's
subsequent damage report illustrates that Respond-
ent believed that Sharon Hudson was involved in
5 Our dissenting colleague points to the fact that Respondent's presi-
dent, Everett Alger, never mentioned Sharon Hudson's name in a letter
to the Union nor in conversation with her husband. Any doubt that Re-
spondent at all times believed that Sharon Hudson was involved in the
sabotage is removed by the fact, as noted above, that, subsequent to the
sabotage incident, Alger filed a report wherein he stated that Sharon
Hudson was seen at the truckstop at the time of the sabotage.
I Denials by both Robert and Sharon Hudson that they were at the
truckstop on the day that Respondent's truck was sabotaged were not
credited by the Administrative Law Judge. Rather, he credited Alger
and the truckdriver who witnessed Robert Hudson running from his
truck and viewed Sharon Hudson in the Hudson automobile.
the sabotage. However, in that report, Alger
merely noted that Robert Hudson's "[w]ife was
seen" at the site of the truck sabotage.
Respondent, through its ex post facto contention,
seeks to deprive Sharon Hudson of reinstatement to
her former position with Respondent. I would
affirm the Administrative Law Judge's findings and
conclusions concerning Sharon Hudson and order
that she be offered reinstatement to her former po-
sition.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: The
hearing in this consolidated proceeding was held from
April 15 through 17, 1981, and is based on unfair labor
practice charges filed against K & K Transportation
Corp., Inc., herein called Respondent, by Terry G. Geho
in Case 17-CA-9826 on August 4, 1980, by Robert E.
Hudson in Case 17-CA-9853 on August 12, 1980,' and
by Eva Vesper in Case 17-CA-9882 on August 27,
1980.2 In September 1980 the Regional Director for the
National Labor Relations Board for Region 17, on behalf
of the Board's General Counsel, issued separate com-
plaints in each of the aforesaid cases alleging that Re-
spondent violated Section 8(a)(1), (3), and (4) of the Na-
tional Labor Relations Act, herein called the Act, and
issued an order consolidating these cases for hearing. Re-
spondent filed timely answers to the complaints denying
the commission of the alleged unfair labor practices. Re-
spondent admitted that the Union herein, General Driv-
ers & Helpers Union, Local No. 554, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, is a labor organi-
zation within the meaning of Section 2(5) of the Act and
that Respondent meets the Board's applicable discretion-
ary jurisdictional standard and is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
Upon the entire record, from my observation of the
demeanor of the witnesses, and having considered the
post-hearing briefs, I make the following:
FINDINGS OF FACT
I. BACKGROUND
Respondent is in the interstate trucking business as a
contract carrier. Its place of business is situated in
Omaha, Nebraska. On November 14, 1Q78, the Union
was certified by the National Labor Relations Board as
the exclusive bargaining representative of Respondent's
full-time and regular part-time over-the-road truckdrivers
employed at its Omaha facility. Negotiations for a collec-
tive-bargaining agreement commenced on December 22,
1978, and continued on various dates through November
I The charge in Case 17-CA-9853 was amended on September 22,
1980.
2 The charge in Case 17-CA-9882 was amended on September 23,
1980.
1482
K & K TRANSPORTATION CORP.
19, 1979, without success. On November 3, 1979, the
Union called a strike against Respondent which was sup-
ported by a substantial number of the unit employees. In
conjunction with the strike the employees picketed Re-
spondent's facility from November 3, 1979, through May
7, 1980.
In Cases 17-CA-9152 and 17-CA-9332 the Union
filed unfair labor practice charges in 1979 against Re-
spondent alleging violations of Section 8(a)(1) and (5) of
the Act. These cases were consolidated for hearing and
heard before Administrative Law Judge Earldean V. S.
Robbins on March 4, 1980. Administrative Law Judge
Robbins issued a Decision and recommended Order in
this matter on August 4, 1980, to which Respondent filed
exceptions. On January 26, 1981, the Board issued its De-
cision and Order. See K & K Transportation Corp., Inc.,
254 NLRB 722 (1981). The Board concluded that subse-
quent to the Union's certification on November 14, 1978,
and contemporaneous with the negotiation meetings in
the ensuing year, Respondent engaged in numerous vio-
lations of Section 8(a)(1) of the Act designed to discour-
age the employees from supporting the Union and violat-
ed Section 8(a)(5) and (1) of the Act by unilaterally insti-
tuting a bonus wage system and its delay in furnishing
the Union certain information. The Board also found that
Respondent refused to bargain in good faith with the
Union in violation of Section 8(a)(5) and (1) of the Act
by engaging in "surface bargaining" without an intent to
reach a collective-bargaining agreement.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Case 17-CA-9826
1. On May 12, 1980, Respondent's president, Alger,
allegedly informed employee Geho that Respondent
would never have a union and if Geho wanted
union representation he should terminate his
employment and go to work for a union company
(complaint, par. 5)
Terry Geho was employed by Respondent from April
12, 1979, until July 15, 1980, as an over-the-road driver.
During the Union's strike and the picketing associated
with the strike which continued from November 3, 1979,
until May 7, 1980, Geho continued to work for Respond-
ent. As a matter of fact Geho, during this period, at-
tempted to oust the Union as the employees' bargaining
representative. In January 1980, with the assistance of
Respondent's president, Alger. he solicited the employ-
ees who had not supported the Union's strike to sign a
petition asking the NLRB to conduct an election to de-
certify the Union. In February 1980 Geho personally
filed a decertification petition with the NLRB's Regional
Office. Not only did Geho through his decertification
conduct lead Respondent to believe that he was opposed
to representation by the Union, but in March 1979 Re-
spondent was informed that Geho had refused to testify
on behalf of the General Counsel against Respondent in
the unfair labor practice hearing before Administrative
Law Judge Robbins in Cases 17-CA-9152 and 17-CA-
9332. 3
In connection with the filing of the decertification pe-
tition, Geho and other employees who had not supported
the Union's strike proposed to Respondent President
Alger that Respondent deal directly with the employees
as a group rather than with the Union and that Alger
agree to improve the employees' terms and conditions of
employment in certain enumerated respe'cts. The employ-
ees reduced their proposed improved terms and condi-
tions of employment into writing and in January 1980
submitted their written proposals to Alger. The employ-
ees, as stated in their written proposal submitted to
Alger, asked that Alger consider and accept the im-
proved terms and conditions of employment they were
proposing, thereby making it unnecessary to have a labor
union negotiate on their behalf. Alger told the employees
he would consider their proposals.
Geho testified that after the employees submitted their.
written proposals to Alger that Geho periodically asked
Alger when he would discuss the proposals with the em-
ployees and enter into an agreement embodying the pro-
posals. Alger replied, according to Geho, that he was
unable to do anything until the Union's strike ended and
the Union's unfair labor practice charges had been re-
solved. Geho further testified that on May 12, 1980, in
the presence of Safety Director Clary, Geho again spoke
to Alger about this subject and that Alger told him Re-
spondent would never have a union, that if Geho wanted
a union he could buy out Alger or find a job with a
union company. In response, Geho testified that he in-
formed Alger that he would no longer help him get rid
of the Union. Alger specifically denied making the afore-
said remarks attributed to him by Geho when they spoke
on May 12, 1980. In terms of demeanor Alger impressed
me as the more credible witness and for this reason I
reject Geho's testimony that Alger told him Respondent
would never have a union and invited Geho to either
buy out Alger or terminate his employment if he wanted
union representation. I have considered Respondent's
failure to have Clary testify about the May 12 meeting.
Nonetheless, because Geho in terms of demeanor did not
impress me as an honest witness when he testified that
Alger made the disputed statements and because Alger,
in terms of demeanor impressed me as a credible witness
when he denied making the disputed statements, I have
credited Alger's testimony in this respect.
Based on the foregoing, I shall recommend that this al-
legation be dismissed in its entirety.
2. On May 13, 1980, Respondent allegedly
discharged Geho (complaint, par. 6(a))
Terry Geho testified that on May 13, 1980, in the
morning, when he phoned Respondent's office to deter-
a The General Counsel attempted to subpoena Geho as a witness in
that proceeding Geho in no uncertain terms informed counsel for the
General Counsel that he did not intend to testify for the General Coun-
sel, would do everything in his power to avoid being served with a sub-
poena, and if served would not comply with the subpoena. Respondent
was advised of Geho's conduct when during the hearing counsel for the
General Counsel attempted to place Geho's affidav it into evidence.
1483
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mine if he was scheduled to be dispatched that day, he
was notified by Alger to pick up his personal belongings
because he was fired. Geho further testified that the next
morning, May 14, he phoned Alger and asked why he
had been fired, but without waiting for an answer told
Alger he intended to complain to a number of govern-
mental agencies including the NLRB. Alger replied that
Geho was not fired and was scheduled to be dispatched
that evening. Geho declined the dispatch, as was his
right under the Company's dispatch procedure, and was
dispatched the next day. Geho's account of his May 14
conversation with Alger is corroborated by his wife, Pa-
tricia Geho, who testified she listened in on an extension
phone.
Alger testified that he did not discharge Geho on May
13 and that on May 14 Geho did not suggest that Alger
had terminated him. In terms of demeanor Alger im-
pressed me as a more credible witness than Terry Geho
and Patricia Geho and it is for this reason that I reject
Geho's testimony that he was discharged by Alger on
May 13, 1980.4 I therefore shall recommend that this al-
legation be dismissed.
3. On July 14, 1980, Respondent discharged Geho
(complaint, par. 6(c))
a. The evidence
Geho was dispatched to the east coast on July 6, 1980.
On July 12 on his return trip he was hauling a load of
watermelons when his tractor broke down, when the
driveline twisted. This malfunction cost Respondent
$1,160. Geho was discharged because Respondent
blamed him for the breakdown.
Geho testified that what happened to the driveline was
not his fault, but was caused when the U-joint which
holds the driveline in place worked loose due to either
normal wear and tear or because of improper mainte-
nance. He testified that on July 8 he observed that there
was something wrong with the driveline because he
could move it up and down which indicated that the U-
joint was going bad, that on July 9 the problem with the
driveline got worse as it started to vibrate and make a lot
of noise, and that this got progressively worse on July 10
and 11 and that on July 12, just before he was due to
cross from Illinois into Missouri, the vibration and noise
became so bad that he pulled over to the side of the road
and inspected the driveline; he observed it was in an
arching position. When he moved the truck forward so it
would be further off the highway, Geho testified the
driveline twisted, thereby making it impossible to drive
the truck.
Geho testified that for several days prior to July 12 he
had notified representatives of the Company about the
problem he was having with the driveline, but was in-
structed to continue driving the truck. Specifically, Geho
testified that on July 8 he phoned Respondent's terminal
and asked Dispatcher Hutchison for permission to have
the driveline checked but that Hutchison refused to
4 I note the unfair labor practice charge Geho filed in this case signifi-
cantly fails to mention his alleged May 13, 1980, discharge. The charge
only mentions the July 15, 1980, discharge. Geho failed to explain this
omission.
permit him to take the time to do this. That from July 8
to 11 he mentioned the problem he was having with the
driveline when he spoke to Safety Director Clary and
Maintenance Supervisor DeWitt and that on July 11,
when he told Clary that the truck was becoming impos-
sible to drive due to the noise and the vibration, Clary
told him to "nurse" the truck in. Clary and DeWitt spe-
cifically deny that Geho informed them that he was ex-
periencing trouble with the driveline or said anything to
them which indicated he was having such a problem.
DeWitt, who is Respondent's maintenance supervisor
and is responsible for all of the maintenance work done
on its equipment, testified that the normal practice for a
driver on the road who is having problems with his
equipment is to speak to him about the matter and that if
the driver referred to a mechanical problem when speak-
ing to either Hutchison or Clary that they would refer
the matter to DeWitt. DeWitt testified that during the
trip which ended with the July 12 breakdown Geho did
not speak to him about any mechanical problems and
that Clary never informed him that Geho was having a
problem with the equipment. Clary and DeWitt im-
pressed me as credible witnesses. Geho, in terms of his
demeanor, impressed me as an insincere and unreliable
witness. Accordingly, I find that Geho did not, as he tes-
tified, inform management that he was having problems
with his driveline. This conclusion is bolstered by the
fact that Geho, during the trip from July 7 through July
12, failed to indicate either directly or indirectly on his
driver equipment reports that he was experiencing diffi-
culty with the driveline. The record establishes that
Geho, pursuant to standard operating procedure, main-
tained daily equipment reports during this trip and would
have been reasonably expected to have noted on these
reports the severe vibration and noise problem he claims
to have experienced during this trip due to his problem
with the driveline. His explanation for this omission-
"more than likely with the phone calls and talking to
[Clary] and [DeWitt] over the phone . . . I overlooked it
on the write up sheet"-was not given in a persuasive
manner.
On July 12, 1980, when Geho's tractor was disabled
because of the twisted driveline, he phoned Maintenance
Supervisor DeWitt and told him about the twisted drive-
line. DeWitt arranged for Geho to use another tractor to
haul his trailer load of watermelons the rest of the way
to Respondent's terminal and for a tow truck to tow the
disabled tractor to the terminal. The disabled tractor and
Geho arrived at the terminal the morning of July 14,
1980.
Geho testified that when he returned on July 14 Safety
Director Clary told him he was discharged and that
President Alger, in the presence of Clary and DeWitt,
confirmed that he was fired. When Geho asked why he
had been fired for the breakdown, Geho testified, Alger
told him he could not afford him and his problems. Geho
threatened to complain to the NLRB, the Department of
Transportation, OSHA, and Nebraska's Department of
Motor Carrier Safety.
Alger denied discharging Geho on July 14. He testi-
fied that it was July 15 when he told Geho that he was
1484
K & K TRANSPORTATION CORP.
discharged for abusing his equipment. Alger further testi-
fied that Geho lost his temper and yelled obscenities at
him and told him he intended to go to every governmen-
tal agency he could think of in order to harass him and
to cause him to go out of business. Geho refused to leave
Alger's office and continued to yell obscenities He left
only after Alger phoned the police who escorted Oeho
from the premises.
As I have indicated supra, Geho, in terms of demeanor
did not impress me as a sincere or reliable witness. Alger
impressed me as a more credible witness. It is for this
reason that I have credited Alger's version of this exit in-
terview and his testimony that Geho was not discharged
by him until July 15, 1980.'
On July 14 Alger inspected the disabled tractor Geho
had driven. He discussed the twisted driveline with his
shop personnel. They had never witnesses a twisted
driveline comparable to this one and in order to deter-
mine what had caused it and to determine whether there
was any damage done to the engine, Alger decided to
have Richard Hauptman, the local representative for the
manufacturer who built the tractor, and Maurice Smith,
the local representative for the manufacturer who built
the engine, inspect the disabled tractor and express their
opinions. On other occasions Alger had called in outside
experts to determine the cause of the damage to his
equipment.
The same day, July 14, Smith and Hauptman separate-
ly inspected the disabled tractor and told Alger that they
were of the opinion that the twisted driveline was not
the result of normal wear and tear or of a failure of the
shop personnel to conduct proper maintenance, but was
a case of driver abuse. In effect they told Alger that it
appeared that the driver of the tractor had attempted to
slide back the trailer's fifth wheel with the trailer's
brakes set and without dollying down the trailer so as to
take the weight off of the fifth wheel and that the result
was an extraordinary amount of torque to the driveline
which caused it to be twisted.
Alger, based on the paperwork submitted to him by
Geho, determined that at the time of the breakdown
Geho was getting ready to cross the state line in Illinois
which meant that he would have had to "shorten" his
load in order to adjust the weight he was hauling in
order to cross the scales as the state line. This is done by
moving the trailer closer to the tractor by using the slid-
ing fifth wheel. The proper way to shorten a load is to
stop the tractor and use the manual crank to "dolly
down" the landing gear. This process takes the weight of
the trailer off the sliding fifth wheel. The driver then re-
leases the pin on the air cylinder, which allows the pins
in the sliding fifth wheel to be moved. The driver then
would simply have to back his tractor closer to the trail-
er until the proper groove in the sliding fifth wheel was
lined up. The cylinder would then be closed, the pin
reinserted and the trailer put back into place on the fifth
wheel. The improper method, which involves less work
but a greater risk factor, is accomplished without taking
the time to "dolly down" the trailer. The driver releases
I I note that the unfair labor practice charge filed by Geho herein does
not allege he vas discharged on July 14, 1980, rather it alleges that Re-
spondent, "since on or about July 15. 1980." discharged Geho.
the air cylinder and the pin, revs the engine at high
speed, and then pops the clutch in an attempt to force
the sliding fifth wheel into position. This method pro-
duces a tremendous amount of torque and is difficult to
acomplish, since the weight of the trailer is still resting
on the sliding fifth wheel.
Based on the views of Smith and Hauptman, the fact
that the breakdown occurred at a location where Geho
would normally have been expected to shorten his load,
and the failure of Geho's daily equipment reports to indi-
cate that prior to the breakdown the driveline was vi-
brating or that he was otherwise having problems with
the driveline, Alger decided that Geho's abuse of the
equipment was responsible for the twisted driveline and,
as described supm, on July 15 told him he was dis-
charged for abusing his equipment.
b. Diwuuion and analysis
As evidenced by the Board's decision in K & K Trans-
pottoio Cop, Inc. rupro, Respondent is opposed to its
driven being represented by the Union and committed
numerous unfair labor practices in an effort to discourage
them from supporting the Union. The alleged discrimina-
tee herein, Terry Geho, did not support the Union in its
strike against Respondent and with Respondent's assist-
ance circulated and filed a petition with the Board seek-
ing to decertify the Union as the drivers' collective-bar-
gaining representative. But, it is undisputed that on May
12, 1980 Oeho informed Respondent President Alger
that he would no longer assist Respondent's effort to get
rid of the Union. The General Counsel apparently con-
tends that this was Respondent's reason for discharging
Oeho. When Geho indicated he intended to cease help-
ing Respondent to get rid of the Union his conduct in
that respect was protected by Section 7 of the Act and if
Respondent discharged him for this it violated the Act. I
au of the opinion the General Counsel failed to make a
perminerfe showing that Geho's protected conduct was a
motivating factor in Respondent's decision to discharge
him. This conclusion is based on the following consider-
atior
(a) Oeho's discharge took place several months after
he informed Respondent's president he would no longer
be a party to Respondent's attempt to get rid of the
Union and the record fails to reveal that the timing of
the discharge was otherwise significant.
(b) When the Union removed its picket lines on May
7. 1910, Respondent immediately reinstated all of the
driven who supported the Union's strike, who at that
time rsked for reinstatement, and there is no evidence or
contention that Respondent thereafter refused to rein-
state any of the strikers because of their activities on
behalf of the Union or discharged an employee because
of the employee's union activity."
Repondent' refuial to reintate striking employees Robert and
Shamr Hudson and Lee Bridgman litigated in Case 17-CA-9853, infra. is
no bed on the theeoy that Respondent was discriminatorily motivated
in denying them reintaement. nor would the record support such a
theory.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) As I have described supra, Respondent reasonably
believed that the twisted driveline which disabled the
truck Geho was driving was the result of Geho's abuse.
(d) The procedure used by Respondent to investigate
the cause of the damage to Geho's truck-consulting
outside experts-was used in past instances involving
damaged equipment.7
(e) In the past Respondent had discharged several
drivers who President Alger thought were guilty of
abusing their equipment. There is no evidence that Alger
has ever retained an employee who has abused equip-
ment. Although there have been drivers whose trucks
were damaged and who were not discharged, there is no
evidence that these drivers were at fault or that Alger
believed they were at fault.
It is for all of the foregoing reasons that I am persuad-
ed that the General Counsel has failed to establish a
prima facie case that Geho's protected conduct was a
motivating factor in Respondent's decision to discharge
him.
In any event, even if counsel for the General Counsel
has made a prima facie showing that Geho's protected
conduct was a motivating factor in Respondent's deci-
sion to discharge him, I am persuaded Respondent has
demonstrated that Geho would have been discharged
even in the absence of the protected conduct. Wright
Line, a Division of Wright Line, Inc., 251 NLRB 1083
(1980). As described supra. the driveline of the tractor
which Geho was driving was damaged due to his negli-
gence thereby disabling the tractor at a cost of $1,164.
Respondent followed its usual procedure of calling in
outside experts to assist it in determining the cause of the
damage. When Respondent's investigation revealed that
Geho's abuse of his equipment had resulted in the twist-
ed driveline Geho was discharged for abusing his equip-
ment. There is no evidence that Geho was treated dis-
parately. Quite the opposite, the record establishes that
Respondent's decision to discharge Geho was consistent
with its practice of discharging employees who, like
Geho, abused Respondent's equipment. It is for these
reasons that I am persuaded that Respondent has demon-
strated that Geho would have been discharged even in
the absence of his protected conduct.
Based on the foregoing I shall recommend that this al-
legation be dismissed.
B. Case 17-CB-9882
1. On March 3, 1980, President Alger threaten to
discharge Robert Vesper, Sr., if he testified in a
Board proceeding against Respondent (complaint,
par. 5(a))
As described supra, the Union's unfair labor practice
charges filed in Cases 17-CA-9152 and 17-CA-9332
were heard before Administrative Law Judge Robbins
on March 4 and 5, 1980. Administrative Law Judge Rob-
bins, among other violations, found that Respondent vio-
lated Section 8(a)(1) of the Act by threatening in March
7 Alger credibly testified that he failed to question Geho about Geho's
version of the cause of the twisted driveline because, based on Alger's
investigation described supra, Alger thought it was very clear what had
happened.
1980 to discharge employees if they testified adversely to
Respondent in a Board proceeding. In support of this
finding, which the Board affirmed, Administrative Law
Judge Robbins made the following subsidiary findings
(ALJ's Decision, pp. 18-19):
Robert Vesper, Sr., was subpoenaed to appear
and testify at the hearing herein. This summons
made it impossible for him to leave on March 3 on
an assigned trip. Robert Vesper, Jr., who drives
with his father was not going on this trip because of
illness. However, after his father was subpoenaed he
decided to take the load. Vesper Jr. testified that on
the morning of March 3, his father told him that
Alger had telephoned and said they were having
someone else take the load. Vesper Jr. then went to
Respondent's facility and . . . asked for Alger.
Alger had not arrived so Vesper Jr. waited for him
for about an hour. When Alger arrived, Vesper Jr.
asked him why he could not take the load. Alger
said it was a two-man load. Vesper Jr. said that on
the previous day, his father was given permission to
take the load solo and accused Respondent of per-
mitting his father to go solo to get him out of town.
He then said just because you got something against
my dad, why do I have to suffer for it. At this
point, accordilig to Vesper Ji., Alger slammed some
papers on the desk and said, "any son-of-a-bitch
that's going to court against me. I don't need them
working for me." Alger further said that Vesper Sr.
might as well go out and walk the picket line be-
cause he no longer worked for Alger. Vesper Jr.
said, "Why do I have to suffer for that." Alger said,
"I have nothing against you but as far as your
father is concerned, he no longer works for me. But
if you want to go out I'll get you a load." They
then went to the dispatcher's office and Alger asked
about a load for Vesper Jr. Vesper Jr. was not sub-
poenaed until March 4.
In making these findings, which were based on the testi-
mony of Robert Vesper, Jr., Administrative Law Judge
Robbins discredited Alger's version of his March 3 con-
versation with Vesper Jr. Administrative Law Judge
Robbins also noted that Alger testified that on March 3,
shortly after Alger spoke to Vesper Jr., that Vesper Sr.
phoned and asked Alger whether he still had a job and
indicated he was unable to handle his scheduled load for
that day because his brother was critically ill. Adminis-
trative Law Judge Robbins further noted that Alger did
not testify about his reply to Vesper Sr.
In the instant proceeding Vesper Sr. testified that he
was served with a subpoena by the General Counsel to
testify before Administrative Law Judge Robbins, but
did not testify because he was unexpectedly forced to
leave the area in order to visit his brother who had
become terminally ill. Vesper Sr. also testified that on
March 3, 1980, his son, Vesper Jr., advised him that
Alger had stated that he did not want Vesper Sr. to tes-
tify in court and that Vesper Sr. would not have a job
with Respondent if he testified. Vesper Sr. testified that
when he heard this he immediately phoned Alger on
1486
K & K TRANSPORTATION CORP.
March 3 and asked whether he had heard right, that if
he testified in court he would not have a job. Alger, ac-
cording to Vesper Sr., replied, "That's right . . . if you
want to be on the other side of the fence that is where
you should be, on the other side of the fence." Vesper
Sr. told Alger that he had planned on appearing in court
to testify but that he had to visit his brother who was ill
in South Dakota, but if it were possible intended to
return to testify. Alger did not controvert Vesper Sr.'s
aforesaid testimony.
The complaint alleges that on March 3, 1980, Re-
spondent, through President Alger, threatened its em-
ployees with discharge if they testified adversely to Re-
spondent in a Board proceeding. In support of this alle-
gation the counsel for the General Counsel called Vesper
Sr. who, as I have described above, testified without
contradiction that on March 3, 1980, President Alger
threatened him with discharge if he testified for the Gen-
eral Counsel against Respondent in the unfair labor prac-
tice proceeding being heard before the Administrative
Law Judge Robbins.
I am of the opinion that this allegation is governed by
the principles of Peyton Packing Company, Inc., 129
NLRB 1358 (1961), and Jefferson Chemical Company,
Inc., 200 NLRB 992 (1972), which dictate that there be
but a single hearing on all outstanding violations of the
Act reasonably known to the General Counsel involving
the same Respondent, for to act otherwise results in un-
necessary harassment of respondents. Here, as described
in detail supra, the instant allegation is inextricably inter-
twined with one of the allegations litigated in the earlier
unfair labor practice proceeding heard before the Ad-
ministrative Law Judge Robbins and found to have been
an unfair labor practice and is a part and parcel of that
litigation. As a matter of fact the violation alleged herein
adds nothing to the remedy provided by the Board's
order in that case. It is likewise clear that the counsel for
the General Counsel should have reasonably known of
the violation alleged herein at the time of the litigation
before Administrative Law Judge Robbins and should
have litigated it aa a part of that litigation. The fact that
Vesper Sr. was unavailable to testify before Administra-
tive Law Judge Robbins on March 3 and 4, 1980, due to
the illness of his brother, does not excuse the General
Counsel's failure to ask for a continuance. It is for these
reasons that I shall recommend that this allegation be
dismissed in its entirety.8
2. On August 20, 1980, President Alger allegedly
threatened employees with reprisals for
participating in an investigation of unfair labor
practice charges and for engaging in union activities
and solicited employees to send a letter to the
Board stating they would not participate in the
Board's investigation of those charges (complaint,
pars. 5(b) and (c))
On July 15, 1980, as described in detail supra, Re-
spondent discharged employee Terry Geho. He filed
· As I stated during the hearing herein, I shall consider Alger's March
3, 1910, statement to Vesper Sr. as background material, insofar as it
sheds light on the other unfair labor practices alleged in this complaint.
unfair labor practice charges with the Board on August
4, 1980, alleging that Respondent violated the Act by
discharging him.
During the time material herein Respondent employed
Robert Vesper, Sr., his wife, Eva Vesper, and their son
Robert Vesper, Jr., as truckdrivers. As described infra,
on August 1, 1980, Respondent discharged Vesper Sr.
and his wife. During the week of August 4, 1980, the
Vespers spoke to an agent of the Board in order to de-
termine their rights under the Act. On August 27, 1980,
Eva Vesper filed the unfair labor practice charge in this
case alleging that Respondent violated the Act by dis
charging herself and her husband.
On August 20, 1980, Eva Vesper phoned President
Alger to talk about a problem her son Vesper Jr. was
having with his driver's license which had resulted in his
being temporarily unable to work. She testified that,
after discussing her son's situation with Alger that Alger
abruptly changed the topic and stated that her son had
Geho to thank for his problems, that Geho had been
shooting off his mouth to different government agencies,
that Alger had nothing against the Vespers personally
but if they associated with Geho in what he was doing
that they were buying themselves a lot of problems. He
explained that he had made rules to get rid of Geho and
if he changed them for the benefit of the Vespers he
would have every government agency in the country
"down his back." Eva Vesper also testified that Alger
said he had heard that "we" had met with Geho and a
representative of the Labor Board at the Vespers' home.
Eva Vesper acknowledged that this was true, but told
Alger she did not agree with many of Geho's tactics and
with a lot of the things Geho had done. Alger, according
to Vesper, replied that if she did not want any part of
Geho she could write a registered letter to the Labor
Board stating she wanted no part of the charges that
were being filed, with a copy to Alger, and that it would
be in her favor to write such a letter. Eva Vesper also
testified that during the conversation she told Alger that
he knew her husband did not abuse his equipment. In
reply Alger is supposed to have told Mrs. Vesper that
"he never believed for one minute that [her husband)
abused his equipment but . . . sometimes you have to go
to extreme measures to get rid of a fool." Mrs. Vesper
did not place this last exchange in context.
Alger's version of his August 20 conversation with
Eva Vesper differs substantially. He testified that the
conversation concerned Mrs. Vesper's son, that Geho's
name was not mentioned or discussed and that the only
time the Labor Board was mentioned was when Eva
Vesper told him that Board agents had visited her and
were in effect pressing her to sign an affidavit. Mn.
Vesper told Alger she did not want to be involved and
did not know what to do and asked Alger's advice.
Alger testified he told her if she did not want to be in-
volved that she should write a registered letter to the
Board and that probably the Board agents would accept
her decision and stop bothering her.
Eva Vesper, while testifying as described above about
her August 20, 1980, phone conversation with Alger, did
not appear to be a sincere or reliable witness in terms of
1487
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her demeanor, especially when she testified that Alger in
effect told her that he had resorted to "extreme meas-
ures" to get rid of her husband whom he characterized
as a "fool." Alger impressed me as the more credible
witness in terms of demeanor, so I have accepted his ver-
sion of this conversation. I therefore shall recommend
that these allegations be dismissed.
3. On September 12, 1980, President Alger allegedly
refused to permit Eva Vesper to visit Respondent's
premises because she filed the instant unfair labor
practice charge (complaint, par. 5(d))
As described infra, on August 1, 1980, Respondent dis-
charged Robert Vesper, Sr., and his wife, Eva Vesper.
On August 27, 1980, Eva Vesper filed the unfair labor
practice charge in this case alleging that the discharges
were illegally motivated. On or about September 7, 1980,
as described infra, Respondent reinstated Vesper Sr.
Vesper Sr. testified that on September 12, 1980, his
wife, Eva, came to Respondent's terminal to give him a
ride home and while he completed his usual end-of-the-
trip paperwork she waited in the terminal for him. Prior
to leaving the terminal with his wife, Vesper Sr. was
called into Alger's office.9 Alger spoke to him about his
wife.
Vesper Sr. initially testified that Alger told him that
his wife was "harassing people" in the terminal and for
this reason would no longer be allowed on the Employ-
er's property. Counsel for the General Counsel then
asked Vesper Sr. to repeat Alger's explanation for refus-
ing to allow Eva Vesper on the Company's property.
Vesper Sr. now testified, "because she had filed charges
with the NLRB [and] she was harassing the mechanics
and this and that."
Alger testified that on the day in question he observed
Eva Vesper sitting with several drivers and overheard
her expressing derogatory remarks about the Company's
shop and its mechanics. Eva was saying that Respondent
did not employ a single qualified mechanic and was op-
erating a bunch of junk, referring to Respondent's fleet
of trucks. Upon hearing Eva Vesper make these remarks,
Alger testified he'summoned Vesper Sr. into his office
and told him he could not allow Vesper Sr.'s wife to
come onto his property and degrade his workers, that
she did not work there anymore, and that he did not
want her on his property. He specifically denied telling
Vesper Sr. that his reason for refusing to allow Eva
Vesper on company property was that she had filed a
charge with the Board.
In terms of his demeanor Alger impressed me as a
more credible witness than Robert Vesper, Sr. Accord-
ingly, I shall recommend that this allegation be dismissed
in its entirety.
I Vesper Sr. testified he thought that Safety Director Clary was
present in the office.
4. On August 1, 1980, Respondent discharged
Robert Vesper, Sr., and Eva Vesper allegedly
because they gave testimony to the Board or
Respondent thought they did or intended to do so
(complaint, par. 6)
a. The evidence
Robert Vesper, Sr., began working for Respondent in
May 1977, while his wife, Eva Vesper, began working
there in March 1980. During Mrs. Vesper's employment
they worked together as team drivers. Vesper Sr. was
Respondent's most senior driver.
On July 24, 1980, the Vespers were driving through
Arizona on their way to Texas. Early in the morning be-
tween 2 and 4 a.m. Eva Vesper was driving while
Vesper Sr. was asleep in the sleeper portion of the trac-
tor. Eva Vesper testified that when she approached the
agricultural check point at the Arizona-California state
line she slowed down and as she shifted gears heard a
"thump" and was unable to move the truck. At this
point Vesper Sr. awoke and climbed into the driver's
seat but was unable to put the truck into gear or other-
wise move it. He got out and discovered that the trac-
tor's power divider was damaged.
Vesper Sr. arranged for the truck to be towed to a
yard in the vicinity until he could get instructions from
his superiors. He contacted Dispatcher Hutchison and
Shop Foreman Holt and told them that the tractor was
inoperative because the power divider had been damaged
and described the damage. He also told them that he had
been asleep at the time of the breakdown but that his
wife, who was driving, had told him that as she slowed
down while approaching the port of entry she heard a
"klunk" when she shifted gears and that at this point was
unable to move the tractor any further.
Respondent sent a replacement tractor to the Vespers
so they could complete their trip to Texas. A wrecker
was also dispatched which towed the disabled tractor
back to Respondent's yard. It cost Respondent approxi-
mately $2,000 in parts to repair the tractor and the total
expense to Respondent of the breakdown was $3,562.
The disabled tractor was brought back to Respond-
ent's yard on or aboui July 27, 1980, at which time
Alger instructed Safety Director Clary not to dispatch
the Vespers until Alger learned more about the cause of
the damage to the power dtvider. Alger arranged for
Richard Hauptman, a representative of the manufacturer
of the tractor, to look at the damaged power divider.
Hauptman viewed it the week of July 28. As I have indi-
cated in connection with Geho's discharge, supra, it is
not unusual for Alger to get advice from outside experts
to determine the cause of mechanical breakdowns.
Hauptman in effect informed Alger that the power di-
vider had been damaged because of a severie shock
which is usually caused by the driver popping the clutch
or not gearing down properly. Hauptman specifically
discounted normal wear and tear or the loss of oil as
having caused the damage to the power divider.
Upon receipt of Hauptman's opinion Alger notified
Safety Director Clary to inform the Vespers that they
1488
K & K TRANSPORTATION CORP.
were being terminated due to driver negligence.'° On
August 1, 1980, Clary informed Vesper Sr. that he and
his wife had been terminated because Alger did not be-
lieve their version of the way the power divider was
damaged. Previously when the Vespers had returned
from their trip on July 29, 1980, they had asked Clary if
he wanted to know what had happened in connection
with the disabled tractor. Clary indicated he was not in-
terested in hearing their story. It is undisputed that other
than the description of what happened given by Vesper
Sr. to the dispatcher and the shop foreman, shortly after
the tractor was disabled, that supervision did not other-
wise question the Vespers prior to their discharge about
their version of the breakdown.
On August 1, 1980, as soon as Eva Vesper learned that
she and her husband had been terminated, she phoned
Alger and arranged to meet with him on August 6, 1980.
They met on that date in the presence of Dispatcher
Hutchison, Shop Foreman Holt, and Maintenance Super-
visor DeWitt. Alger indicated that he felt the tractor
must have been damaged while Eva Vesper was backing
it up. Vesper denied this. She informed Alger that the
breakdown took place when she shifted gears while
slowing down upon entering the port of entry to Arizo-
na at which time she heard a "thump" and was then
unable to move the tractor. DeWitt stated he did not be-
lieve the damage to the power divider could have been
caused in this manner. Holt stated he felt it was possible
that when Vesper shifted she might have shifted into the
wrong gear. Alger stated it was company policy that if
anyone damaged a tractor, such as the Vespers had done,
they were automatically terminated. Eva Vesper pointed
out that this was not included among the Company's
written rules. Alger stated that since he was the presi-
dent he was not limited solely to the Company's printed
rules, but could make other rules. Eva Vesper stated that
her husband was the Company's most senior driver and
had a good driving record and had never abused equip-
ment. Alger stated past records were not relevant in this
case because as members of a team the Vespers were
jointly responsible for the truck. The meeting ended with
Vesper asking DeWitt why, after telling her son Vesper
Jr. that she was not responsible for what happened, he
was now indicating she was at fault. DeWitt denied
having told Vesper Jr. that she was not at fault. "
' Clary played no part in the decision to discharge the Vespers. He
was not consulted by Alger who made the decision. Clary testified that
on August 1, 1950. Alger notified him that the Vespers were being dis-
charged for abusing equipment at which time Clary filled out an "Em-
ployee Warning Record." a record maintained by Respondent for em-
ployees who leave its employ. This record is for future use, if, for exam-
pie, another employer asks for a reference. Clary credibly testified that
on August I he recorded that the Vespers were discharged for "careless-
nea" because they were "hard on equipment." Clary further credibly tes-
tified that thereafter he overheard Eva Vesper speaking in a derogatory
manner about the Company to drivers and because of this also noted on
the aforesaid record that the Vespers had a bad attitude toward the Com-
pany. He testified in effect that this last notation was inadvertent insofar
as it can be construed as referring to Vesper Sr.. but should have referred
only to Eva Vesper and testified he added it to the record for future ref-
erenK.
1" The record establishes that DeWitt did not inform Vesper Jr. that
his mother was not responsible for the damage to the power divider.
Rather, Vesper Jr. testified that on July 29, 1980. DeWitt, after viewing
the damaged tractor informed Vesper Jr.. "it looked like it had just run
Early in September 1980 when Vesper phoned Alger
and asked for a job reference, Alger invited him to come
to the Company's office and talk with Alger which
Vesper did that same day. During this meeting Vesper
Sr. indicated he wanted to return to work for Respond-
ent and asked if this were possible. Alger told him that if
he and his wife acknowledged that his wife was responsi-
ble for the damage to the tractor and that Vesper Sr.
was without responsibility, he would consider reinstating
him. Thereafter, on or about September 4, 1980, Vesper
Sr. presented to Alger notarized statements signed by his
wife and himself which in substance stated that at the
time of the damage to the tractor, Vesper Sr.'s wife was
driving and Vesper Sr. was asleep in the tractor's sleeper
and that his knowledge of the incident was limited to
what his wife had told him. Upon receipt of these state-
ments Alger reinstated Vesper Sr. who was dispatched
on September 7, 1980, with his son, Vesper Jr., as a
team.
b. Discusion and analysis
The complaint alleges that the Vespers were dis-
charged in violation of Section 8(aXI) and (4) of the Act,
because "[Vesper Sr.] had given testimony to the Board
in the form of affidavit, because Respondent believed the
both (Eva Vesper and Vesper Sr.] had given testimony
to the Board in the form of affidavits or verbal state-
ments, and because [Vesper Sr.] expressed an intention to
testify at an unfair labor practice hearing conducted by
the Board in Cases 17-CA-9152 and 17-CA-9332 on
March 4 and 5, 1980." I am of the opinion that this alle-
gation should be dismissed in its entirety because the
General Counsel has failed to establish a prima facie case
that the protected activity alleged in the complaint was a
motivating factor in Respondent's decision to discharge
the Vespers.
There is no credible evidence that when Respondent
discharged the Vespers it knew or suspected either one
had spoken to a Board agent about their discharges or
were assisting the Board in its investigation of Geho's
unfair labor practice charge in Case 17-CA-9826. The
only evidence of protected concerted activity engaged in
by any one of the Vespers which is alleged in the com-
plaint to have contributed to their discharges, which Re-
spondent knew about, was Vesper Sr.'s intention to tes-
tify against Respondent in March 1980 in Cases 17-CA-
9152 and 17-CA-9332. As has been described in detail
supra, Vesper Sr. was subpoenaed by the General Coun-
sel to testify in that proceeding and when Respondent
learned of this its president, Alger, on March 3, 1980,
threatened him with discharge if he complied with the
subpoena. Vesper Sr. never did testify inasmuch as he
had to leave the area due to an illness in his family, but
nonetheless informed Alger he intended to make every
effort to testify against Respondent despite Alger's threat
to discharge him. This evidence is not sufficient to war-
rant an inference that 4 months later Alger, in discharg-
ing Vesper Sr. and Eva Vesper, was motivated by his
out of oil and sot hot, [butl he could not tell right then, that the would
have to check it out mand] said they had some experts coming in . . . to
look at it."
1489
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hostility toward Vesper Sr. for indicating that he intend-
ed to testify against Respondent. Alger not only contin-
ued to employ Vesper Sr. but, soon after making the
aforesaid threat to fire Vesper Sr., he hired Vesper Sr.'s
wife Eva Vesper to work with Vesper Sr. as a team.
This is hardly the conduct of someone who was intent
on punishing Vesper Sr. Moreover, Vesper Jr., who de-
spite Alger's threat of discharge went ahead and testified
on March 4, 1980, before Administrative Law Judge
Robbins in the prior litigation, remained employed by
Respondent on the date of the hearing in this case and
there is no evidence or contention that he has ever been
discriminated against by Respondent. Also, the timing of
the Vespers' discharge is not significant and inasmuch as
it took place long after Alger's threat to discharge
Vesper Sr., it militates against any inference of illegal
motivation, especially since in the interim Alger hired
Vesper Sr.'s wife to work with him as a team.
Also significant in evaluating Respondent's motivation
is the fact that Alger's decision to discharge the Vespers
was made only after he had received the opinion of an
outside expert that the damage to the tractor's power di-
vider which had cost Respondent $3,562 was the result
of the driver abusing the equipment. In the past Alger
has discharged other drivers for abusing equipment or
imposed a lesser penalty for this offense other than dis-
charge. And, although Vesper Sr. was not driving the
tractor at the time of the breakdown, Alger's decision to
terminate him, along with his wife, was consistent with
Respondent's policy of holding both members of a driv-
ing team liable for the abuse of equipment absent a state-
ment from both members absolving one of the members
from responsibility. When the Vespers, approximately I
month after their discharges submitted such statements to
Alger absolving Vesper Sr. from responsibility, Vesper,
Sr. was promptly reinstated.
It is for all of the aforesaid reasons that I am of the
opinion that the record does not establish a prima facie
case that the protected activity alleged in the complaint
was a motivating factor in Respondent's decision to dis-
charge the Vespers. In so concluding I have taken into
consideration the fact that previously when Vesper Sr.
was on a team whose truck was involved in an accident
that he was allowed to drive pending the Company's in-
vestigation as to who was responsible, whereas in the in-
stant case he was discharged prior to any investigation of
the respective responsibilities of the team members in-
volved. Nonetheless, in view of the overwhelming evi-
dence described above which negates any inference of il-
legal motivation, this deviation from company policy is
insufficient in the circumstances to establish a prima facie
case of illegal motivation as alleged in the complaint.
Based on the foregoing, I shall recommend that the al-
legation herein be dismissed in its entirety.
C. Case 17-CA-9853
1. The Union's strike against Respondent was
caused by Respondent's unfair labor practices
(complaint, par. 5)
The Union was certified by the Board on November
14, 1978, as the exclusive bargaining representative of
Respondent's employees in an appropriate unit and nego-
tiations for a collective-bargaining agreement com-
menced on December 22, 1978, and continued through
November 19, 1979, without success. In K & K Transpor-
tation Corp., Inc., supra, as I have described infra, the
Board found that Respondent following the Union's cer-
tification and contemporaneous with the negotiation
meetings in the ensuing year engaged in numerous unfair
labor practices in violation of Section 8(a)(l) and (5) of
the Act. In connection with the collective-bargaining ne-
gotiations the Board concluded that Respondent had re-
fused to bargain in good faith in violation of Section
8(a)(5) and (1) of the Act inasmuch as it was engaged in
"surface bargaining" without any intent to reach an
agreement.
On November 3, 1979, the Union called a strike
against Respondent which was supported by a substantial
number of the unit employees. On November 3, prior to
the strike, a union meeting was held at which time the
employees voted to strike. Prior to the vote the Union
Secretary-Treasurer McFarland discussed the reasons for
the strike. McFarland explained what had been going on
during the contract negotiations, informed the employees
that the Union had been unable to secure an agreement
with Respondent because in the Union's opinion Re-
spondent was not interested in reaching an agreement
but was simply engaging in surface bargaining and that
the Union had filed an unfair labor practice charge
against Respondent and felt that the employees were in a
position to conduct an unfair labor practice strike.'2 The
employees then voted to strike and the strike began the
same day. The record shows that even prior to Novem-
ber 3 that the unit employees had expressed dissatisfac-
tion with the manner in which Respondent was bargain-
ing with the Union. Sharon Hudson, an employee, credi-
bly testified that one of the grievances raised by the em-
ployees prior to November 3, 1979, in discussions among
Themselves, was their belief that Respondent did not
intend to negotiate a collective-bargaining agreement
with the Union and that it would be necessary for the
employees to strike. When the Union in fact commenced
its strike on November 3 the picket signs carried by the
strikers identified the strike as being directed specifically
toward Respondent's unfair labor practices. In view of
the foregoing circumstances taken in their totality, I am
persuaded that the causal connection between Respond-
ent's refusal to bargain in good faith by engaging in sur-
face bargaining and the strike is clear. Accordingly, I be-
lieve, and so find, that the strike, from its inception, was
an unfair labor practice strike.' 3 See C & E Stores, Inc.,
12 McFarland also mentioned that Respondent had been interrogating
employees about their union activities.
13 The law is settled that if an unfair labor practice is a "contributing
cause" of a strike or "had anything to do with causing the strike" it was
an unfair labor practice strike. Larand Leisurelies v. N.LR.B., 523 F.2d
814, 820 (6th Cir. 1975); General Drivers d Helpers Local 662 [Rice Lakes
Creamery Companyl v. .V.L.R.B., 302 F.2d 908, 911 (D.C. Cir. 1962). In
the instant case it is clear that Respondent's refusal to bargain in good
faith with the Union was at the very least a contributing cause of the
strike. Respondent's assertion that because in November 1979 agreement
was reached by the parties on certain proposals advanced by Respondent
that at that point the strike was converted to an economic strike. is with-
Continued
1490
K & K TRANSPORTATION CORP.
et aL, 221 NLRB 1321 (1976); Wittock Supply Company,
171 NLRB 201, 203 (1968).
In finding that the Union's strike was an unfair labor
practice strike, as alleged in the complaint herein, I have
rejected Respondent's contention that under the Board's
decisions in Peyton Packing Company, Inc, 129 NLRB
1358 (1961), and Jefferson Chemical Company, Inc., supra,
the General Counsel was foreclosed from litigating the
nature of the strike, since at the time of the prior unfair
labor practice proceeding against Respondent in Cases
17-CA-9152 and 17-CA-9332 the General Counsel
knew that the Union was conducting a strike against Re-
spondent and, therefore, could and should have litigated
the nature of the strike in the prior litigation. I am not
persuaded Peyton Packing and Jefferson Chemical are ap-
plicable to the present situation. In those cases the Board
held that roughly concurrent unfair labor practices must
be litigated in a single proceeding, so as to prevent un-
necessary harassment of respondents. The instant situa-
tion does not involve the litigation of concurrent unfair
labor practices. On the date of the prior unfair labor
practice proceeding Respondent was not charged with a
refusal to reinstate any of the strikers nor was it charged
with any other violation of the Act to which the nature
of the strike had any relevance. In fact at that time Re-
spondent had not refused to reinstate any striker. Nor is
there evidence that the General Counsel should have
reasonably known that such an issue would arise in the
future.' 4 Although it may have been better practice for
the General Counsel to have litigated the nature of the
strike in the prior proceeding (see Wittock Supply Compa-
ny, 171 NLRB 201, 202 (1968)), 1 am not persuaded that,
under the circumstances of this case, the General Coun-
sel abused his discretion by failing to do so. I therefore
reject Respondent's argument that the General Counsel
was foreclosed from litigating the nature of the strike.
2. Respondent refuses to reinstate striking
employees Robert Hudson, Sharon Hudson, and
Lee Bridgmon, Jr. (complaint, par. 6)
a. The evidence
On November 3, 1979, the Union called a strike
against Respondent which was supported by a substantial
number of unit employees. As I have found supra, the
strike was an unfair labor practice strike. In conjunction
with the strike the employees picketed Respondent's fa-
cility from November 3, 1979, through May 7, 1980. On
May 7, 1980, the Union discontinued the picketing, but
has never ended the strike and as of the date of the hear-
ing in this case the Union still considered that it was on
strike against Respondent. During the period of the pick-
out merit. The Board's holding in Cases 17-CA-9152 and 17-CA-9332
that Respondent was engaged in illegal surface bargaining was arrived at
despite the fact that the parties had reached agreement on certain bar-
gaining proposals advanced by Respondent. Nevertheless, the Board con-
cluded that Respondent's bargaining conduct for the entire period consti-
tuted illegal surface bargaining.
'4 The charge in the instant case was filed by an individual on August
12, 1980, after the Administrative Law Judge issued her Decision in the
prior proceeding. Also. Respondent's refusal to reinstate strikers Robert
and Sharon Hudson took place after the issuance of the Administrative
Law Judge's Decision in the prior proceeding.
eting Respondent did not replace any of the strikers.
Also the record reveals that Respondent reinstated all of
the strikers who sought reinstatement during the period
when there was picketing and immediately following the
cessation of the picketing. The only strikers whose reem-
ployment rights are in issue in this case are Robert and
Sharon Hudson and Lee Bridgmon, Jr.
The Hudsons and Bridgmon were employed by Re-
spondent as truckdrivers. They ceased work when the
strike commenced, in support of the strike, and for about
3 or 4 weeks picketed. They ceased picketing because
they lived a substantial distance from Respondent's facili-
ty and were unable to afford the expense. Almost imme-
diately after they stopped picketing the Hudsons began
work as truckdrivers for Midwest Coast Transport and
worked for this employer from December 1979 until the
end of July 1980. Likewise the record reveals Bridgmon
went to work as a driver for Midwest Coast Transport
after he stopped picketing and at the time he testified in
this proceeding had been working continuously for that
company.
On November 25, 1979, Joseph Roy, a driver for Re-
spondent, who was hauling a full load, pulled his truck
into Herby's Truck Stop in Council Bluffs, Iowa, in
order to scale the load. He went inside to get some
change for the scales. He testified that as he came out of
Herby's that he observed a man whom he recognized as
Robert Hudson leaving the cab of his tractor and run-
ning to a white an blue Ford automobile, which he rec-
ognized as Hudson's car. There was lady in the car who
Roy testified he recognized as Robert Hudson's wife,
Sharon. '1 Roy also testified that, after checking the trac-
tor and trailer for visible damage and finding nothing
wrong, he started to drive away from the truck stop, but
as he did, the trailer dropped from the tractor and fell on
its nose onto the scale, damaging the trailer's landing
gear. Roy testified that the reason the trailer fell down
was that the king pin on the fifth wheel of the tractor
had been pulled, presumably by Robert Hudson, thereby
disconnecting the tractor from the trailer. The damage
could have been much worse, according to Roy, because
the trailer could have separated after he had driven out
onto the highway and endangered other motorists. "
Thereafter, on November 25, 1979, Roy reported what
happened to his truck to management and a tow truck
was dispatched to remedy the situation. Respondent
President Alger was notified about what had occurred
and after Roy returned from his trip Alger spoke to him
personally about the matter. Roy at that time told Alger
zs Roy knew Mr. and Mrs. Hudson and knew they drove a blue and
white Ford auto because he had worked with the Hudsons for several
months prior to the strike.
1s In testifying about what he observed and what happened at Herby's
Truck Stop on November 2, 1979, Roy, in terms of demeanor and the
manner in which he presented his testimony, impressed me as a sincere
and reliable witness and I have credited his testimony in its entirety.
Robert and Sharon Hudson specifically denied that the incident described
by Roy took place or that Robert Hudson sabatoged the truck. However,
Roy impressed me as a more credible witness than the Hudsons. I also
reject Robert Hudson's testimony that it is impossible to remove the pin
from the fifth wheel by simply bending down and reaching under the
truck. This testimony was contradicted by Roy and President Alger. who
impressed me as more credible witnesses.
1491
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he did not want to get personally involved as he was
afraid of reprisals from the strikers. In view of this Alger
let the matter rest, but on November 26, 1979, based on
the information Roy had given management Alger wrote
the following "Work Stoppage And Equipment ...
Damage Report":
Bob Hudson pulled fifth wheel pin on trailer driven
by Joe Roy when he was getting change to pay for
scaling. Bob Hudson was seen running from trailer.
Everything was checked out except the fifth wheel
pin. When Joe Roy pulled up trailer dropped on
scale-3 hour delay and I day lay over and cost of
S104.50 to pick trailer up to height to drive under.
Wife was seen at Herby's also.
Alger on the same date, November 26, 1979, also in-
formed his lawyer about what had taken place and his
lawyer apparently phoned the Union's business repre-
sentative and spoke to him about the matter and con-
firmed their conversation by letter to the union repre-
sentative dated November 26, 1979, as follows:
As I explained to you in our telephone conversa-
tion, it has come to our attention that an incident
occurred at Herby's in Council Bluffs, Iowa on
Sunday, November 25, 1979, when one of the com-
pany's drivers pulled up to the scale to weigh his
load. He left the tractor and upon returning to it, he
saw an individual running away from it and get into
a blue car. He believes that this individual was
Robert Hudson .... He then discovered a short
time later that the fifth wheel had been pulled. I
would appreciate your checking into this incident
and doing what you can to prevent a recurrance of
such incidents in the future.
Robert Hudson, Sharon Hudson, and Lee Bridgmon,
Jr., testified that during the period from April 1980
through June 1980 Robert Hudson asked Respondent
President Alger to reinstate them. Robert Hudson testi-
fied that Alger turned down these requests. Alger testi-
fied that Robert Hudson made no such requests for rein-
statement during this time period. The testimony of the
Hudsons, Bridgmon, and Alger pertaining to this subject
is set forth and evaluated herein.
Robert Hudson testified he phoned Alger in April
1980 and told him that he and his wife were ready to
return to work, but Alger told him "this thing has not
been settled yet" and told him to call back in 30 days.
Sharon Hudson testified that she heard her husband tell
Alger that "Sharon and I are ready to go back to work.
We heard the strike was over."
Robert Hudson testified that in May 1980, 30 days
after the above-described conversation, he phoned Alger
again and asked whether Alger was ready to put Sharon
and himself back to work and also asked Alger, "what
about Lee Bridgmon." Alger answered that Administra-
tive Law Judge Robbins had not issued her decision yet
and that Alger was not sure whether he was going to
put Robert Hudson back to work and that he should call
back later. Sharon Hudson testified that she heard her
husband say, "It's been 30 days Everett, is the strike set-
tled yet? Sharon and I are still anxious to go back to
work." Sharon Hudson failed to corroborate her hus-
band's testimony that he mentioned Bridgmon's name.
Robert Hudson testified he phoned Alger in June 1980
and asked if Alger intended to reinstate his wife, himself,
and Bridgmon as they were ready to return to work.
Alger answered, according to Hudson, that "we had
caused him quite a bit of aggravation on the picket line
and that he was not sure he was going to put us back to
work." When Hudson told Alger he had to put them
back to work, Alger hung up. As a rebuttal witness
Robert Hudson testified that during this conversation in
response to his above-described request for reinstate-
ment, Alger replied, "I am pretty sure you guys dam-
aged some of [the] equipment," whereupon Hudson an-
swered, "you know better than that" and hung up.
Sharon Hudson testified that this phone call was placed
by her husband in the presence of herself and Bridgmon
and that her husband told Alger that he had heard "this
has been settled" and asked why Alger was not putting
the Hudsons and Bridgmon back to work when other
strikers had been reinstated. Lee Bridgmon testified that
he was present at the Hudson's home early in June 1980
when Robert Hudson placed this call and that he heard
Robert Hudson ask if Alger were going to put the Hud-
sons back to work and that Robert Hudson also told
Alger that "Lee Bridgmon is ready to go to work too."
Bridgmon also testified he heard Hudson say, "we did
not do something to the truck." It is undisputed that the
affidavit which Bridgmon submitted to the Board on
August 20, 1980, in support of the charge filed in this
case omits any mention of Hudson's June 1980 conversa-
tion with Alger and does not state that Hudson ever in-
dicated to Alger that Bridgmon wanted to return to
work for Respondent.
Alger testified that prior to Robert Hudson's August
12, 1980, phone call, infra, that Hudson in 1980 phoned
him twice about returning to work and that during each
of these conversations indicated that he and his wife
were ready to return to work provided that the strike
was over. Alger informed Hudson that the strike was
still in progress,' whereupon Hudson stated that he and
his wife were not interested in returning to work until
the Union ended its strike. Alger further testified that
Bridgmon's name was not mentioned in either of these
conversations.
In terms of his demeanor Alger impressed me as a
more credible witness than the Hudsons or Bridgmon,
who did not in terms of their demeanor impress me as
credible witnesses. I therefore shall credit Alger's ver-
sion of the aforesaid conversations. Also I note that
Robert Hudson's testimony that he asked Alger in May
1980 to reinstate Bridgmon was not corroborated by
Hudson's wife and that Bridgmon in the affidavit he sub-
mitted to the Board significantly failed to mention the
June 1980 conversation between Robert Hudson and
Alger where Hudson once again supposedly asked Alger
to reinstate Bridgmon.
I? As I have indicated supra, although picketing ended May 7, 1980.
the Union has not ended its strike against Respondent.
1492
K & K TRANSPORTATION CORP
It is undisputed that on or about August 12, 1980,
Robert Hudson phoned Alger about returning to work.
There is a conflict about what was stated during this
conversation. Robert Hudson testified that he placed the
phone call in the presence of his wife and told Alger that
his wife, himself, and Bridgmon were ready to return to
work and that Alger replied that he was not putting
them back to work. Hudson told Alger he intended to
file an unfair labor practice charge with the NLRB.
Sharon Hudson testified her husband told Alger, "we
know the strike has been settled" and that Alger had to
put the Hudsons and Bridgmon back to work, that Alger
knew they had good driving records and had no reason
not to reinstate them. Alger testified that Robert Hudson
indicated that both Robert Hudson and his wife Sharon
Hudson wanted to return to work. Alger further testified
that his response to this request was that Robert Hudson
would not be allowed to return to work, that he in-
formed Robert Hudson that while on strike Robert
Hudson had been involved in a situation which could
have resulted in a disastrous accident. Hudson asked
what Alger was talking about. Alger told him that he
thought Robert Hudson had pulled the fifth wheel pin
on one of the Company's trucks at Herby's Truck Stop.
Hudson replied, "that was during the strike, so anything
goes at that time." Alger told him that what he had done
was illegal. Hudson threatened to file a charge with the
NLRB if he did not get his job back. Alger also testified
that Bridgmon's name was not mentioned during this
conversation. I credit Alger's version of this conversa-
tion inasmuch as in terms of demeanor he impressed me
as a more credible and reliable witness than the Hudsons,
who did not, in terms of demeanor, impress me as credi-
ble witnesses.
On August 17, 1980, Bridgmon phoned Ray Clary, Re-
spondent's safety director. Bridgmon testified he asked
Clary "what had been going on out there and I told
[Clary] that charges had been filed against [Respondent]
with the Board. I asked [Clary] if he was going to put
anfybody back to work" or used words which were
"something similar to that." Clary answered that "he did
not know what was going on or what was happening."
In the affidavit he submitted to the Board on August 20,
1980, Bridgmon stated that when he spoke to Clary on
August 17, "I asked if there was anything happening be-
tween the Union and K & K. Clary said no . . . I said
OK. I did not ask to go back to work." (Emphasis sup-
plied.)
2. Discussion and analysis
I agree with Respondent's contention that the com-
plaint herein insofar as it alleges an unlawful refusal to
reinstate striker Bridgmon should be dismissed because of
the lack of evidence that Bridgmon ever made an uncon-
ditional request for reinstatement. As I have found supra,
Robert Hudson did not ask Respondent's president,
Alger, to reinstate Bridgmon. And, as Bridgmon ad-
mitted to the Board in his prehearing affidavit, in his sole
conversation with a representative of management.
Bridgmon "did not ask to go back to work." I therefore
shall recommend that the complaint herein be dismissed
insofar as it alleges Respondent violated Section 8(a)(l)
and (3) of the Act by failing and refusing to reinstate
Bridgmon.
I disagree with Respondent's contention that the Hud-
sons lost their status as strikers for purposes of reinstate-
ment because they abandoned interest in their struck
jobs. In support of this contention Respondent points to
the fact that the Hudsons stopped picketing after ap-
proximately 4 weeks, that shortly thereafter they went to
work for another trucking company and the Union
stopped paying them strike benefits, and the lack of evi-
dence that the Hudsons kept in touch with the Union
about the progress of the strike.
In dealing with an analogous situation wherein several
unfair labor practice strikers resigned in order to accept
other jobs during a strike, the Board in S & M Manufac-
luring Company, 165 NLRB 663 (1967), stated that such
action "does not automatically eliminate (the striker) as a
striking employee, .hbsent unequivocal evidence of intent
to permanently sever dIhe striker's) employment relation-
ship .... " 165 NLRB at 663. See also Mastro Plastics
Corporation and French-Anrerican Reeds Manufacturing
Co., Inc., 136 NLRB 1342, 1340-50 (1962); Cornwell
Company, Inc., 171 NLRB 342, 348 (1968). And with re-
spect to determining an economic strike's eligibility to
vote in an election, the Board has set out certain stand-
ards pertinent here. The Board has found a presumption
of the striker's eligibility and has stated:
To rebut the presumption, the party challenging his
vote must affirmatively show by objective evidence
that he has abandoned his interest in his struck job.
The nature of the evidence which may rebut the
presumption will be determined on a case-by-case
basis. However, acceptance of other employment,
even without informing the new employer that only
temporary employment is sought, will not of itself
be evidence of abandonment of the struck job so as
to render the economic striker ineligible to vote. Pa-
cific Tile and Porcelain Company, 137 NLRB 1358,
1359-1360 (1962). Accord: Bio-Science; Laboratories
v. AN'L.R.B., 93 LRRM 2154, 2156-2157 (9th Cir.
1976).
In the instant case the record does not establish that
the Hudsons abandoned an interest in their struck jobs.
They ceased picketing because of financial problems and
there is no evidence that the compensation and benefits
they received from Midwest Trucking were substantially
equivalent to those they derived from their previous po-
sitions with Respondent. There is no evidence that they
informed either Respondent or Midwest Trucking that
they intended their employment with Midwest to be per-
manent or that they no longer desired to work for Re-
spondent. Quite the opposite, as I have described supra,
during the time material herein the Hudsons, through
Robert Hudson. informed President Alger that they were
interested in continuing their employment with Respond-
ent, but when Alger informed them that the Union had
not ended its strike, told Alger they were unwilling to
return to work until the Union ended its strike. Under
these circumstances I reject Respondent's argument that
the Hudsons abandoned their interest in their struck jobs.
1493
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On or about August 12, 1980, as I have found supra,
unfair labor practice strikers Robert and Sharon Hudson,
through Robert Hudson, told Respondent President
Alger that they wanted to return to work. Alger replied
that Robert Hudson was not eligible for reinstatement
because Alger thought he was responsible for sabotaging
one of Respondent's trucks at Herby's Truck Stop during
the strike. In other words, Alger discharged Robert
Hudson for engaging in misconduct during the course of
a protected strike. As evidenced by Respondent's No-
vember 26, 1979, letter to the Union, supra, Alger be-
lieved that Robert Hudson's misconduct was related to
the Union's strike activity. These circumstances establish
a prima facie violation of Section 8(aX1) of the Act
(N.LR.B. v. Burnup & Sims, 379 U.S. 21, 23 (1964); Gen-
eral Telephone Company of Michigan, 251 NLRB 737
(1980)), and the burden shifted to Respondent to prove
that it discharged Robert Hudson because of an honest
belief that he engaged in strike misconduct sufficiently
serious to justify his discharge. If Respondent failed to
establish such an honest belief, the prima facie 8(aX)(1)
violation stands unrebutted. E.g., International Union,
United Automobile, Aerospace & Agricultural Implement
Workers of America, UAW [Udylite Corp.] v. N.LR.B.,
455 F.2d 1357, 1367 (D.C. Cir. 1971). On the other hand,
if Respondent established such an honest belief, the
burden shifted to the General Counsel of proving that
Robert Hudson in fact did not engage in the alleged mis-
conduct or that the alleged misconduct was not suffi-
ciently serious to place Robert Hudson beyond the pro-
tection of the Act. Rubin Bros Footwear, Inc., 99 NLRB
610 (1952), cited with approval in N.LR.B. v. Burnup &
Sims Inc, supra, 379 U.S. at 23, fn. 3. Accord: North
Cambria Fuel Co. v. N.LR.B., 645 F.2d 177 (3d Cir.
1981).
I am persuaded that Respondent has established that
Robert Hudson was discharged on account of President
Alger's good-faith belief that Robert Hudson sabotaged
Respondent's truck on November 25, 1979, at Herby's
Truck Stop by removing the pin from the fifth wheel
thereby causing the trailer to fall on its nose when the
driver moved the truck. As described in detail supra,
Alger was notified by the driver of the truck that imme-
diately prior to discovering that the pin had been re-
moved from the fifth wheel the driver had observed
Robert Hudson running from the truck. The fact that
Alger did not immediately notify Robert Hudson that he
had been discharged for this act of sabotage, but waited
several months until the day Hudson unequivocally
asked to be reinstated does not impugn Alger's good-
faith belief because the record shows that Alger notified
the Union immediately after the event that Alger consid-
ered Robert Hudson responsible for what had taken
place.'" I am also of the view that it was reasonable for
Alger to believe that Robert Hudson was responsible for
removing the pin in the fifth wheel even though the
truckdriver did not actually see Hudson remove the pin.
Alger was informed that the driver had observed Robert
Hudson running from the truck immediately before the
" I also note that the driver who reported Hudson's misconduct also
advised Alger that he did not want to get involved because he was afraid
of reprisals from the strikers.
discovery that the pin had been removed from the fifth
wheel and there was no other explanation to account for
the pin's removal.
As described supra, the counsel for the General Coun-
sel has failed to prove that Robert Hudson did not sabo.
tage Respondent's truck. I have discredited the Hudsons'
testimony that Robert Hudson did not remove the pin
from the fifth wheel. Moreover, as I have found suprw,
during his August 12, 1980, conversation with Alger
about returning to work Robert Hudson admitted to
Alger that he was responsible for sabotaging Respond-
ent's truck at Herby's Truck Stop.
Sections 7 and 13 of the Act grant employees, later
alia, the right to strike and picket; however, not all
forms of conduct literally within the terms of these sec-
tions are entitled to statutory protection. In deference to
the rights of employees and the public, the Board and
the courts have acknowledged that serious acts of mis-
conduct which occur in the course of a strike may dis-
qualify a striker from the protection of the Act. In the
case of unfair labor practice strikers, the misconduct of
the striker must be balanced against the severity of the
employer's unfair labor practices which provoked the
dispute. Coronet Casuals Inc., 207 NLRB 304, 305
(1973), and cases cited at footnote 15. I am persuaded
that the seriousness of Robert Hudson's misconduct,
when considered in the light of Respondent's unfair
labor practices which caused the strike, warrants his dis-
charge.
Robert Hudson's sabotage of Respondent's truck wa
not an act of impulsive behavior done at the spur of the
moment on the picket line, but was apparently the resrlt
of premeditated conduct engaged in many miles from the
picket line which resulted not only in the delay of Re-
spondent's delivery and the damage to its truck but, a
truckdriver Roy credibly testified, created a situation
which was fraught with danger to the general public be-
cause Hudson's removal of the pin from the fifth wheel
could have caused the trailer to separate from the tractor
after Roy had driven onto the highway, thereby endan-
gering the safety of other motorists. In my opinion the
unfair labor practices which caused the strike herein
were not of such severity as to outweigh the seriousness
of Robert Hudson's misconduct. I find Hudson's miscon-
duct was sufficiently serious to support his discharge.
The case concerning Robert Hudson's wife, Sharon
Hudson, must be viewed differently than Robert Hud.
son's. On or about August 12, 1980, as described in detail
supra, Sharon's husband made an unconditional request
to President Alger for reinstatement of himself and
Sharon. Although Alger informed Robert Hudson that
he was declining to reinstate Robert Hudson because of
strike misconduct he said nothing in response to the re-
quest that Sharon Hudson be reinstated. Since there is no
contention that Sharon Hudson had been permanently
replaced,'9 and in any event since she is an unfair labor
practice striker Alger was obliged to reinstate her upon
her unconditional request for reinstatement, I am of the
opinion that the General Counsel has made out a pOram
" As indicated supra, I have rejected Respondent's defense tL
Sharon Hudson abandoned her employment with Respondent.
1494
K & K TRANSPORTATION CORP.
facie violation of the Act in the case of Sharon Hudson.
In its post-hearing brief at page 27 Respondent argues
that it was privileged to ignore Sharon Hudson's August
12, 1980, unconditional application to return to work be-
cause "Alger had sufficient evidence to deny [the Hud-
son'sl reinstatement because of their strike misconduct."
The question for decision is whether Respondent had
an honest belief that Sharon Hudson was jointly respon-
sible with her husband, Robert Hudson, for sabotaging
Respondent's truck. In deciding this question I note that
the Board has held that "the burden of establishing an
'honest belief of misconduct . . . requires some specifici-
ty in the record, linking particular employees to particu-
lar allegations of misconduct" and that "unauthorized
acts of violence on the part of individual strikers are not
chargeable to other strikers in the absence of proof that
identifies them as participating in such violence." General
Telephone Company of Michigan, 251 NLRB 737 (1980).
Although an employer may justify his refusal to reinstate
a striker on the ground that the striker engaged in strike
misconduct so serious as to render the employee unfit for
future service, responsibility for the alleged misconduct
must be personal, not derivative. Absent evidence that
striker "A" actually participated in, authorized, or rati-
fied misconduct engaged in by striker "B," the Act does
not permit the employer to impute this misconduct to
striker "A." See, for example, International Ladies' Gar-
ment Workers Union, AFL-CIO [B. VD. Ca Inc] v.
N.LR.B., 237 F.2d 545, 550-552 (1956), where the Dis-
trict of Columbia Circuit stated:' 0
In a long line of cases . . . courts have without
exception adhered to the principle that proof of in-
dividual wrongdoing is a prerequisite to disqualifi-
cation for reinstatement and backpay ... [T]he
Board . . . has no authority to deny reinstatement
to employees who do not [directly or indirectly
participate in, authorize or ratify misconduct] . . .
[A]bsent an agency relationship, an employee may
not be charged with misconduct committed by
others ... [and] common law Agency principles of
responsibility [which Section 2(13) of the Act man-
dates the Board apply] . . . preclude imputation of
the acts of one person to another except when one
is acting as agent for the other .... [Furthermore,
employees are] under no obligation to disavow mis-
conduct which they did not initiate and with which
they are not shown to have been connected, direct-
ly or indirectly .... And their silence provides no
rational basis for inferring that they acquiesced in
the wrongs of others with whom no agency rela-
tionship is shown.
In the instant case the sole evidence in Alger's posses-
sion concerning Sharon Hudson's responsibility for sabo-
taging the Company's truck was that she was the wife of
Robert Hudson, worked as a team with Robert Hudson,
and was riding in the Hudsons' car with Robert Hudson
nO Accord: Methodist Hospiral of Kentucky v. N.LR.B.. 619 F.2d 563
(6th Cir. 1980); N.VLR.B. v. Big Three Industrial Gas d Equipment Co..
512 F.2d 1404, fn. 10 (5th Cir. 1978); N.LR.B. v Marshall Car Wheel and
Foundry Co.. 218 F.2d 409, 417-418 (5th Cir. 1955).
when Robert Hudson sabotaged the truck.2 1 Alger had
no evidence that Sharon Hudson participated in, author-
ized, or ratified her husband's conduct. That Alger did
not in fact believe Sharon was responsible for her hus-
band's conduct is evidenced by Respondent's failure to
mention her name in its November 26, 1979, letter to the
Union about the incident and Alger's failure in his
August 12, 1980, conversation with Robert Hudson to at-
tribute any wrongdoing to Sharon. It is for these reasons
that I find Respondent has not sustained its burden of es-
tablishing a basis for its asserted "honest belief' that
Sharon Hudson engaged in unprotected activity. I there-
fore find that Respondent, by failing and refusing to rein-
state Sharon Hudson on August 12, 1980, because of her
participation in an unfair labor practice strike, violated
Section 8(a)(1) of the Act. 22
CONCLUSIONS OF LAW
1. Respondent, K & K Transportation Corp., Inc., fi
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The strike engaged in by the employees of Respond-
ent which commenced on November 3, 1979, was an
unfair labor practice strike.
3. By failing and refusing to reinstate unfair labor prac-
tice striker Sharon Hudson on August 12, 1980, upon her
unconditional application for reemployment, Respondent
violated Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Except as found herein, Respondent has not other-
wise violated the Act.
THE REMEDY
Having found that Respondent has violated Section
8(aXl) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that Respondent failed and refused to
reinstate unfair labor practice striker Sharon Hudson, I
shall recommend that Respondent offer her immediate
reinstatement to her former position or, if such position
no longer exists, to a substantially equivalent position,
without loss of seniority and other rights and privileges
previously enjoyed, discharging, if necessary, any re-
placement hired. It is further recommended that Re-
spondent make Sharon Hudson whole for any loss of
earnings or other benefits she may have suffered as a
result of the discrimination against her from August 12,
1980, the date when Respondent unlawfully refused to
reinstate her to the date of Respondent's offer of rein-
statement, in accordance with the Board's formula set
forth in F. W Woolworth Company, 90 NLRB 289 (1950),
with interest thereon computed in the manner prescribed
in Florida Steel Corporation, 231 NLRB 651 (1977). See,
generally, Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
" There is no evidence that Sharon Hudson was driving the car
It I shall recommend the dismissal of the complaint insofar as it alleges
that Sharon Hudson's discharge violated SeL 8(at(3) of the Act
1495
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having concluded that the strike which began on No-
vember 3, 1979, was an unfair labor practice strike from
its inception, I find that it will effectuate the purposes of
the Act to order Respondent to offer all strikers who
make unconditional offers to return to work immediate
and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of earnings
they may have suffered as a result of Respondent's refus-
al, if any, to reinstate them, by payment to each of them
of a sum of money equal to that which each would have
earned as wages during the period commencing 5 days
after the date on which each one unconditionally offers
to return to work to the date of Respondent's offer of
reinstatement, less any net earnings during such period,
with backpay and interest thereon to be computed in the
manner prescribed by the Board in F. W. Woolworth
Company, 90 NLRB 289 (1950); Florida Steel Corporation,
231 NLRB 651 (1977). See, generally, Isis Plumbing d
Heating Co., 138 NLRB 716 (1962).
[Recommended Order omitted from publication.]
1496