Lowery Trucking Co.

National Labor Relations Board - Board Decisions

Dec 1, 1972

200 N.L.R.B. 672 (N.L.R.B. 1972)

672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lowery Trucking Company and General Drivers and
Helpers Umon Local No 554, affiliated with
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America
Cases 18-CA-3418 and 18-CA-3455
December 1, 1972
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On September 15, 1972, Administrative Law Judge
James M Fitzpatrick issued the attached Decision in
this proceeding Thereafter, Respondent filed excep-
tions and General Counsel filed an answering brief
to Respondent's exceptions and filed cross-excep-
tions with a supporting brief Respondent then filed
an answering brief in response to General Counsel's
cross-exceptions
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Lowery Trucking
Company, its officers, agents, successors, and as-
signs, shall take the action set forth in said recom-
mended Order
1 In the first paragraph of sec III B I of the Administrative Law
Judge s Decision the date of February 2, instead of February 21 is
inadvertently inserted as the day employee Petry was recalled
DECISION
Company (herein called Respondent or the Company)
Based on these charges a consolidated complaint issued
against Respondent on April 18, 1972 (and was amended
at the hearing herein), alleging violations of Section 8(a)(1)
and (3) of the Act Respondent answered the complaint
denying commission of unfair labor practices The matter
was tried before me at Council Bluffs, Iowa, on May 22
and 23, 1972
The questions presented are whether the Company
violated Section 8(a)(1) by conduct of its supervisors in
asking employees whether they had signed union cards and
by predicting that the Company would close its doors
before accepting a union With respect to this latter alleged
threat, a further issue is whether the person alleged to have
made such statements was in fact a supervisor whose
conduct is attributable to Respondent
The case presents three issues of alleged discrimination
under Section 8(a)(3) These are (a) whether a layoff of 10
employees for a short period was done for discriminatory
reasons or for economic considerations, (b) whether a
leading proponent of the Umon among the employees was
shifted from job to job for discriminatory reasons, and (c)
whether his later discharge was for cause or because of his
union activities
Upon the entire record, my observation of the witnesses,
and consideration of the briefs filed found by the parties, I
make the following
FINDINGS OF FACT
I THE EMPLOYER INVOLVED
Respondent is a partnership of Walter and Ruth Lowery
Its principal place of business is at Council Bluffs, Iowa,
where it engages in the leasing of trucks with drivers to
interstate motor camers The principal product hauled is
meat Respondent annually receives in excess of $50,000
from leasing trucks to such interstate camers Respondent
is an employer engaged in commerce within the meaning
of the Act
Respondent normally leases out its trucks with drivers
To service its fleet Respondent maintains a shop at Council
Bluffs, in which it normally employs between 18 and 24
employees working in two shifts The shop facilities include
a washrack for the cleaning of tractors and trailers, bays
for servicing such as greasing, changing oil, light mechani-
cal work, servicing of tires, and facilities for heavy
mechanical work including motor overhauls
STATEMENT OF THE CASE
JAMES M FITZPATRICK, Administrative Law Judge
These consolidated proceedings under Section 10(b) of the
National Labor Relations Act, as amended, (herein called
the Act) initiated with charges filed February 2, 1972
(amended April 10, 1972), in Case 18-CA-3418 and
February 23, 1972, in Case 18-CA-3455 all by General
Drivers and Helpers Union Local No 554, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (herein called the
Union or Charging Party) against Lowery Trucking
200 NLRB No 104
II THE LABOR ORGANIZATION INVOLVED
The Union is an organization which represents employ-
ees and admits to membership employees of various
employers including shop employees of Respondent It is a
labor organization within the meaning of the Act
On January 26, 1972, Wayne Holmes, a tireman in
Respondent's shop , contacted the Union for the purpose of
organizing the shop employees He obtained blank union
authorization cards which he distributed, or had fellow
employees distribute , the following day among the shop
employees on both the day and night shifts Sixteen signed
LOWERY TRUCKING COMPANY 673
cards and returned them to Holmes He returned them to
the Union on the evening of January 28
On May 10, 1972, the Board conducted an election
among the shop employees (Case 18-RC-9010) According
to Respondent's brief, of 27 eligible voters at that time, 9
cast ballots for the Union, 15 against the Union, and 2
ballots were challenged On May 17, 1972, the Acting
Regional Director for Region 18 certified the results of the
election
III THE ALLEGED UNFAIR LABOR PRACTICES
A Alleged Interference, Restraint, and Coercion
1 Interrogation
The complaint alleges and the answer denies that on
January 28, 1972, Shop Foreman Deryl Crowell interro-
gated employees about their union activities Crowell,
admittedly a supervisor within the meaning of Section
2(11) of the Act, at about that time in talking with
employee John Kannedy at the employee coffee table,
inquired if Kannedy had signed a union card, and a few
minutes later in the drivers room he asked employee Bruce
Smith substantially the same question Both employees,
who worked under Crowell, indicated they had signed
union authorization cards at the solicitation of employee
Wayne Holmes
Considering that these interrogations occurred at the
shop, were initiated by Crowell who was in a superior
position and directed to Kannedy and Smith who were in
inferior positions, and occurred while union activity was
going on in the shop, I find that in the circumstances, they
were coercive and contrary to the mandate of Section
8(a)(1) of the Act
2 Threats
At the hearing the complaint was amended to allege that
one Orville Slotten was a supervisor, that he stated to the
employees that Respondent would close the plant in the
event the employees selected the Union, and otherwise
threatened that working conditions would be changed
Respondent denies that these events occurred and also
denies that Slotten was a supervisor within the meaning of
the Act, its position being that at most he was a leadman
With the advent of union activity about January 27 or
28, considerable discussion ensued among employees
including members of the night crew Slotten, Dan
Burdess, William Nourse, and Gary Bergen were among
those assigned to the night shift According to the
testimony of Nourse and Bergen, whom I credit, Slotten
and Burdess in particular argued the pros and cons of
unionism, Slotten declaring that Walter Lowery, Respon-
dent's principal owner, would never let the Union get in,
that he would close down the shop first Slotten said that
handrags, handcleaners, and the coffee pot could be taken
away He referred to his own past experiences with a
union, declaring that it was no good Nourse testified that
Slotten said, "If you think things are bad now, after the
Union gets in, it will be even worse " In his testimony
Slotten did not deny making these statements, he said he
did not remember what was said Burdess did not testify I
find that Slotten made the statements attributed to him by
Nourse and Bergen
The remaining question, which is a close one, is whether
Respondent is legally responsible for Slotten's remarks I
find Slotten was not a supervisor and his remarks are not
attributable to Respondent His status on the night shift
differed in some measure from that of other members of
the crew But considering all aspects of his authority I find
that for the most part he exercised routine authority and
rarely if ever exercised a significant measure of independ-
ent.judgment
Respondent's management consists of Walter and Ruth
Lowery, the partners who own the business, Truman Wolf,
the general manager, and Deryl Crowell, the shop foreman
regularly on duty during the day shift and on call at night
Lloyd Crowell, the safety man for Respondent's over-the-
road operations is generally around the shop at night It is
not clear whether he is a supervisor, but he and Deryl are
brothers of Ruth Lowery The evidence does not establish
that Lloyd Crowell has any responsibility respecting the
operation of the shop
In January 1971, at a time when Respondent had no
employees on the night shift, Walter Lowery reassigned
Slotten, then a rank-and-file mechanic, from the day shift
to the night shift For a time thereafter he worked alone
nights Later others were also assigned to the night shift
No one regularly working nights had more authority than
Slotten
As trucks needing service came in during the day, Shop
Foreman Deryl Crowell prepared work orders indicating
what servicing each vehicle needed At the beginning of
each night shift Crowell handed to Slotten the previously
prepared orders on trucks still needing service Slotten
parcelled these out to night shift employees to perform the
servicing indicated As they finished each assignment he
handed them another His transmittal to them of work
assignments appears to have been basically mechanical,
not involving the exercise of judgment The night shift
employees were all regularly assigned to perform particular
types of servicing such as washrack work, tire changing,
greasing and the like, work which was essentially routine in
nature
According to Slotten, whom I credit in this respect, he
made only routine decisions on his own, such as, for
example, whether obviously bald tires needed replacing
On any major question he telephoned Shop Foreman
Crowell or General Manager Wolf for instructions Slotten
did not give detailed instructions to night crew members
regarding their work because, in his words, they knew their
jobs and did them If on occasion they had a question, he
gave his advice But they also asked the advice of other
crew members such as Burdess
On occasion Slotten sent a service mechanic to obtain
repair parts He also exercised some surveillance over night
operations On occasion he went into the washrack area to
check He sometimes told night shift employees they were
working too slowly If work was erroneously performed, he
pointed out how the work should be done The evidence
does not establish that he had authority to discipline or
otherwise take action against employees who did poor
work By his own admission it was his responsibility to see
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the mechanics did their Job But he considered himself
a leadman rather than a supervisor Nourse and Bergen
considered him a supervisor
All employees on the night shift, including Slotten,
punched timecards On a couple of occasions when a night
shift employee forgot to punch in Slotten validated the
timecard by initialing it When they wanted time off, they
asked his permission, which he almost invariably gave
Nourse testified credibly that if they were really busy
Slotten would not okay a request for timeoff, but he did
not specify any occasion when such occurred The general
sense of Slotten's testimony is that he could not force
people to work and if he was told someone wanted timeoff
he agreed to it In all the circumstances I credit Nourse on
this because it is apparent the crew felt the need to consult
Slotten if timeoff was desired Such necessity implies he
had authority to deny timeoff at least in some circum-
stances
In advance of holidays Slotten advised night crew
members if they were required to work On paydays he
handed out the paychecks In both regards his function
appears to have been mechanical
According to Slotten, when he was on the night shift, in
addition to assigning work to others, he performed work of
a rank-and-file service mechanic, particularly fixing lights
and moving trucks Nourse testified that Slotten only
occasionally fixed lights, and Bergen testified that he never
saw him perform any rank-and-file work I do not credit
them in this because in Bergen's case he had been
employed a short period of time, because Slotten had time
to perform rank-and-file duty, and because he continued to
perform those duties after he returned to the day shift
Slotten received no special compensation which would
indicate he was a supervisor Although he had been
employed 5 years he received $154 40 for a 46 hour week,
only about $10 per week more than Bergen who was a new
employee, and substantially less than Burdess who worked
on the same shift and was not a supervisor At the time of
the hearing Slotten had been returned to the day shift as a
nonsupervisory service mechanic without change in pay
Considering all these circumstances I find that Slotten as
a senior employee was more responsible than others on the
night shift but lacked authority to exercise substantial
independent judgment I find the evidence insufficient to
establish he was a supervisor within the meaning of the
Act
B Alleged Discriminations
The complaint alleges that Respondent engaged in three
types of discrimination in violation of Section 8(a)(3) of the
Act First, it is alleged that on January 31, February 1, and
2, 1972, 10 shop employees were laid off for discriminatory
reasons, second, that between February 1 and February
17, Wayne Holmes, who was not laid off, was, for
discriminatory reasons, removed from his regular job and
frequently moved from job to job, and third, that on
February 17, Holmes was discharged because of his union
activity Respondent admits the events but denies the
alleged reasons therefore
1 The layoffs
Concerning the 10 layoffs the parties stipulated that on
January 31, 1972, Respondent laid off John Kannedy,
Gary Petry, and Dennis Hynek, on February 1, Jack
Parrott and Dennis Jacobsen, and on February 2, Dan
Burdess, Gary Bergen, William Nourse, John McDowell,
and William Roberge Each received a letter from
Respondent stating, "This letter is to advise you, due to
decrease of equipment and economical conditions it has
become necessary to temporarily lay you off until our
operation becomes more stable We hope this can be
accomplished in the very near future " Most were recalled
by letter stating, "We are pleased to inform you that due to
improvements in our operation, we are in a position to
recall you to work immediately " It was stipulated that
Petry was recalled on February 2, Hynek on February 17,
but that he did not respond to the call , Bergen on February
21, and all the other were on February 12, returning to
work February 14 Discrimination in recalling is not
alleged
Respondent's position is that the 10 were laid off because
of lack of work at that particular time, and not because of
union activity
a Company knowledge and union animus
Management knew there was union organizing activity
among shop employees on January 27 and 28 In particular
such knowledge is indicated by Deryl Crowell's admitted
interrogation of two employees as to whether they had
signed the cards The testimony of Kannedy and Smith,
whom I credit, shows he knew Holmes was the prime
mover in union organizing
The General Counsel relies heavily upon the coincidence
of the union activity and the layoffs as a basis for inferring
a discriminatory motive He also points to the fact that all
10 of those laid off had signed union cards In its defense
the Company points out that others who had signed union
cards, including Holmes were not laid off Respondent also
claims there is no evidence that it harbored animus toward
the Union and also claims that it had valid business
reasons for the layoffs
The General Counsel contends that in addition to the
timing of the layoffs, other conduct by Respondent
indicates an antiumon attitude Thus it is urged that after
the Company learned of the union activity it ceased
providing the shop employees with coffee, forbad them to
play truck radios while they worked, gave orders that shop
employees were not to engage in conversation while
working, engaged in harassing surveillance of their work,
and changed time for distributing paychecks to night
crewmen from I p in to 5 p in Fridays However, none of
this is alleged to have violated Section 8(a)(1) or (3)
At about the time the union activity occurred, shop
employees were told not to play the radios in the trucks
Prior thereto, playing of radios had been common Further
evidence shows, however, that the Company has always
had a policy that truck radios shall not be played in the
shop, which policy has more often been ignored than
honored The evidence also shows that Respondent's
trucks are powered by diesel motors which are difficult to
LOWERY TRUCKING COMPANY 675
start particularly in wintertime, and which in starting make
heavy demands on the truck battery The testimony of
Lonnie McMullen, Respondent's heavy mechanic, indi-
cates that if the truck lights as well as the radio are
operated for a substantial period of time while the truck is
in the shop, the battery may be weakened thereby
increasing the difficulty of winter starting By the time of
the hearing herein in May, Respondent had eased
enforcement of its rule respecting the playing of radios But
at the time of the events in question at the end of January,
it was still winter in Council Bluffs, Iowa In the
circumstances I find that the ban on radio playing is not
substantial evidence of union animus or retaliation for
union activity
By established practice the shop employees were entitled
to two coffeebreaks on each shift At some time prior to the
events involved herein the Company had provided a coffee
pot and a supply of coffee for that purpose Because of
dissatisfaction with the pot, the employees provided their
own coffee pot, the Company continuing to supply the
coffee with the girls in the office preparing it At about the
time of the union organizing activity, the Company ceased
supplying the coffee Thereafter each employee brought his
own coffee There is no evidence of any employee protest
regarding this change The employees continue to be
allowed their two coffeebreaks per shift As with the radio
playing, I find that the change in the coffee situation is not
significant evidence of union animus or retaliation against
employees for union activity
At about the same time Ruth Lowery, one of the
partners of the business, reprimanded Kannedy and Smith
for standing around talking and also directed Shop
Foreman Deryl Crowell not to permit them to do so At the
time they were not working, but were standing around
talking briefly between job assignments Whether or not
Ruth Lowery's criticism was justified, I find her action was
a normal one for a member of management and not
indicative of union animus or retaliation for union activity
even though it may roughly have coincided with union
activity
I come to the same conclusion respecting the evidence
that members of management at about the time of the
union activity gave greater surveillance to the work of the
shop employees Surveillance of work is a normal function
of management Holmes testified that he was not heckled
or harassed by it, nor is there any other evidence of
employee disadvantage as a result of management's
attention On the other hand, Shop Foreman Deryl
Crowell credibly testified that coincidental with the union
activity shop employees stood around more and talked
more and that his instructions from higher management
were to keep them working
Regarding the contention that on January 28, Respon-
dent changed its policy respecting distribution of pay-
checks by distributing them at 5 p in instead of 1 p in, I
find the record herein inadequate to establish what the
prior practice was, and even if, as contended, a prior
practice was changed, I find the change too insignificant to
warrant an inference of animus or retaliation for union
activity
Even lumping all of the alleged retaliation together, the
complained of conduct lacks persuasive weight The record
shows no employee or union protest to it , nor any unfair
labor practice charges based thereon If the changes were
of any real significance , the record would contain more
persuasive evidence of employee disadvantage
Respondent also contends , and offered testimony to the
effect that, all 10 layoffs were made in accordance with
shift seniority, 5 being laid off from the day shift and 5
from the night shift However, a seniority list of the
Company shows that one shop employee , Warren Womble,
who had less seniority as a shop employee than John
Kannedy, Dan Burdess , Jack Parrott , or William Nourse
was not laid off while they were This is the only evidence
that strict seniority by shift was not followed in the layoffs
This exception is explained by the fact that Womble had
greater seniority, as a truckdriver, a job he could no longer
hold because of injury, and Respondent assigned him to
the shop in order to provide him with a job Accordingly,
Respondent 's departure from a standard of strict shift
seniority does not appear to have been based upon a desire
to discriminate against union activists
b The economic defense
At the time of the layoff Respondent had a total fleet of
about 169 or 170 tractor-trailers , about 30 of which were
out of service, leaving a net operating fleet of about 140
units The licenses of 15 of the out-of -service units had
expired and these 15 had been sold to a supplier of new
equipment
Respondent had on order 40 new units on which delivery
was to begin about January 1 But these did not begin to
arrive until mid-February, about the time the layoffs were
recalled As they arrived these new units were prepared for
road operations by Respondent 's shop crew
Respondent offered evidence which it contends also
establishes that it simultaneously was experiencing a
reduction in business which warranted a reduction in force
In support of this assertion General Manager Truman
Wolf and Partner-Owner Walter Lowery testified generally
that business had fallen off and that that condition
partially motivated the layoff In addition, Shop Foreman
Deryl Crowell testified that during the layoff the shop
crews kept on were able to handle the work None of this
testimony was contradicted
In further support of its business dropoff contention,
Respondent offered documentary evidence in the form of
summaries of Respondent's records prepared by, or under
the supervision of, Wolf But, as pointed out in the General
Counsel's brief, these summaries are inadequate and
fragmentary and do not provide satisfactory corroboration
for the testimony of Respondent 's witnesses For example,
Respondent leases trucks to six carriers but the summary
for the periods immediately preceeding the layoff cover
only the business done with four There is no explanation
of why two were not included Even allowing for the fact
that the two omitted apparently did not lease as many
trucks as those reported , the evidentiary picture presented
is incomplete and confusing Further, the summary
proports to give the average weekly mileage per truck
which Respondent contends shows a falloff in business To
reach this figure, Respondent computes the average weekly
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mileage per truck operated by each of the four carriers
reported upon, totals these averages, divides by four and
comes up with a figure which it contends is a valid
indicator of the condition of its business But each carrier
leases a different number of trucks, the record suggests
that one leases about 62, another 46, another 5 and another
23 Respondent's summary gives equal weight to each
group average Nevertheless, the summary provides partial,
if unsatisfactory and inconclusive, corroboration for the
testimony of Wolf and Lowery in that it shows low average
weekly mileage during the 2 weeks preceding the layoff for
Respondent's biggest customer, Midwest Emery Freight
System
Although the evidence about a falloff in business is
confusing as well as inconclusive and for those reasons not
very persuasive, there is evidence of other business reasons
for the layoff, namely, that some trucks were out of service
and that newly ordered trucks had not arrived on schedule
These circumstances are sufficient to explain the short
layoff Whether the decision to lay off was wise or unwise,
too much or too little, is not an issue in this case I cannot
agree with the General Counsel that the fact that 10 of the
approximately 24 shop employees were laid off is indica-
tive of a discriminatory motive, and I think his argument in
this regard is weakened further by the fact that the layoff
was relatively short I note there was uncontradicted
evidence of a concurrent layoff of some drivers (which
were not alleged to be discriminatory) as well as a drop in
their earnings during February
General Counsel also urges that the fact that Respondent
had no history of prior layoffs is a circumstance indicating
a discriminatory motive for the layoff involved here But
the record also shows that since its inception Respondent's
business has been expanding, and Respondent argues there
has been no prior occasion for a layoff On this point, then,
the General Counsel's argument is reduced to a contention
that since Respondent in the past has, without laying off
employees, accommodated the peaks and valleys which
characterize its business, it should have done so on this
occasion and its failure to do so indicates bad motive But
this enters the realm of business judgment Such circum-
stances, without more, do not support on inference of
unlawful motive
The General Counsel would also convict Respondent of
a general antiumon attitude because certain of its actions
in 1968 were found to be unfair labor practices See Lowery
Trucking Co & Ace Alkire Freight Lines, Inc, 177 NLRB
13 I do not think such an inference is now warranted The
passage of time since that unlawful conduct has been
substantial Moreover, that case involved a different labor
organization than in this case
The General Counsel also urges that the extent of union
organization supports his contention that the layoff was
clearly discriminatory, 16 of about 24 employees in the
shop signed authorization cards for the Union But it seems
to me that this unquestioned fact is not material to the
issue of Respondent's motivation Although there is
evidence that at the time of the layoff Respondent knew
there was union activity among the shop employees, there
is no evidence of company knowledge of the extent of
organization Accordingly, there is no basis for inferring
that the extent of organization influenced Respondent's
motive
What the General Counsel's case on the motive for the
layoffs comes down to is the timing of the layoff at 5 p in
on Monday, January 31, shortly after the union organizing
activity which occurred in the shop chiefly on Thursday,
January 27 The Company knew that Holmes was passing
out union cards and in addition Crowell on Friday,
January 28, interrogated Kannedy and Smith in violation
of Section 8(a)(1) Other than to establish company
knowledge of union activity, I do not think Crowell's
conduct helps to explain the motive for the layoffs His
conduct was not a particularly serious violation of Section
8(a)(1) and the record does not indicate that he participat-
ed in the decision to layoff or the selection of employees
for layoff Nevertheless, the circumstances of knowledge
and timing could support an inference of unlawful
motivation if there were no other evidence bearing upon
that question While the other evidence going to motive is
not entirely satisfactory, in my view it is substantial enough
to offset the case made by the General Counsel In this
regard I rely particularly on the uncontroverted evidence
that some trucks were out of service, the delay in arrival of
new trucks to be prepared for road operations, and the
recall of employees from their relatively short layoff when
the new trucks began to arrive Based on the foregoing I
find that a preponderance of the evidence fails to establish
that Respondent's motive in laying off the 10 shop
employees was discriminatory Accordingly, the allegations
of the complaint so alleging should be dismissed
2 The shifting of Wayne Holmes
Wayne Holmes, the principal instigator of union activity
among shop employees, was first employed by Respondent
on October 1, 1969, and continued until he was discharged
February 17, 1972 When he was first hired he was
assigned to work as a service mechanic in which he
greased, oiled, and performed general maintenance on
trucks After about a year he was reassigned to work as a
tireman repairing tires and mounting new tires He
continued with this assignment until the layoff of 10 shop
employees described earlier herein At that time another
employee, Bruce Smith, was also working on tires Holmes
and Smith were not among those laid off but during the
layoff Holmes was shifted about from job to job both as a
service mechanic, work he had performed earlier, and in
the washrack, work he had not done before, and at times as
a tireman The washrack assignment involved hanging
meathooks, steaming out trailers, washing out trailers,
washing the outside of tractors and trailers and storage
pallets, and the fueling of trucks Although he had not
done this work before it required no special skill or
experience He testified that at no time either during the
layoff or earlier had management indicated any dissatisfac-
tion with his work
During the layoff Smith, who was junior to Holmes, was
kept on tires Holmes was the only shop employee who was
switched around from job tojob His pay was not affected
in any way There is no evidence to indicate that one
assignment was more or less desirable than another
Respondent offered the testimony of its oldest shop
LOWERY TRUCKING COMPANY 677
employee, Lonnie McMullen , the heavy mechanic, to the
effect that shop employees are occasionally shifted from
job tojob
There is no explanation in the record why Holmes was
the only employee who was shifted around from job to job
during the layoff Absent some explanation as to why only
he was switched around , and considering that his reassign-
ments followed upon the heels of his activity as key union
organizer , a fact which management had knowledge of, the
inference is warranted, and I find , that his transfer from
job to job was because he had engaged in union activities I
find, therefore, that he was treated differently from the
other shop employees because of his involvement with the
Union This was prohibited discrimination even though
there is no evidence that he was disadvantaged thereby,
and I find that in so discriminating against him Respon-
dent committed an unfair labor practice within the
meaning of Section 8(a)(3) of the Act
3 The discharge of Wayne Holmes
On February 17, Respondent discharged Wayne
Holmes, it claims for cause The General Counsel contends
Respondent 's motive was discriminatory , relying particu-
larly on the timing of the discharge a short period after the
organizing effort, knowledge of Shop Foreman Deryl
Crowell that Holmes was the chief instigator of the
organizing , and the claimed unlawful shifting of Holmes
during the layoff Those circumstances , without more,
warrant an inference of discriminatory motive But the
record contains other evidence going to the question of
cause for the discharge which must also be considered in
resolving motive
On the morning of February 17, Holmes, who for the
moment at least had been returned to tire work , accidental-
ly backed a tractor-trailer into the Company's safety car
assigned to Lloyd Crowell, doing about $100 damage to the
safety car Holmes was concerned that he might be fired
because of the collision
Later, at the mid-morning coffeebreak, the shop crew,
including Holmes, discussed the collision None of his
comments indicated the collision was intentional There is,
however, considerable variance in the testimony of
witnesses present regarding what was said In view of what
followed, I deem it unnecessary to resolve these differ-
ences
Lonme McMullen, the heavy mechanic , testified that
Holmes said he did not see the safety car, but that if he
had, he would have backed right over it, and that it was a
good thing it wasn't the Lincoln or the Cadillac (cars
belonging to the owners of the business Ruth and Walter
Lowery), or he would have backed clear over it After the
coffeebreak McMullen reported this to Shop Foreman
Deryl Crowell
In mid-day General Manager Wolf and partner owner
Walter Lowery called Holmes into the office for question-
ing He was asked about the accident He was also asked
whether he had intended to do more damage than he had,
or if he had stated that if he had intentionally collided he
would have done more damage and he would have liked it
to have been Walter Lowery's Cadillac According to Wolf,
Holmes was indignant , as if management had no right to
question him Wolf characterized his attitude as offensive
Holmes denied intentionally colliding , stating that if he
had intentionally collided, he would have done a better
job He also, according to Wolf, denied making the
statements during the coffeebreak which had been reported
to management, adding that even if he had made the
statements , they could not prove it Both Lowery and Wolf
testified that that remark caused Lowery to fire him
Lowery indicated he thought Holmes was threatening his
life and he fired him forthwith
Wolf testified Holmes was not fired because of union
activity, or the collision, or the damage to the safety car,
but because of his attitude about the whole thing Lowery
vacillated regarding the reason for discharge Early in his
testimony the reason he gave was threats Holmes allegedly
made about running over his car Later he gave Holmes'
attitude as the reason , citing the remark about them not
being able to prove it even if he had made the statements
attributed to him Like Wolf, Lowery testified that the
discharge had nothing to do with union activity He also
denied Holmes was fired because of the collision, although
discharge on that ground, he said, was warranted
During that afternoon , after Holmes was discharged,
Walter Lowery and Wolf continued to interview other
shop employees about what Holmes said at the morning
coffeebreak According to Lowery some of these reported
that they did not hear Holmes make any remarks , others
reported Holmes said the collision was not intentional, and
other reported Holmes said that if he had intended to
collide he would have done a better job This latter version
jibes with what Holmes admits he said One shop
employee , David Siefken , testified to a version comparable
to McMullen's But on cross-examination he gave a version
more consistent with that of Holmes
The General Counsel points out, and I agree, that
continuation of the investigation after the discharge
suggests Respondent was unsure of its grounds for
discharge Admittedly Holmes was not fired because of the
collision Respondent claims the cause was his "attitude "
This could include what happened at the morning
coffeebreak and later at the discharge interview Even after
the discharge Respondent was uncertain of the coffeebreak
incident as a ground for discharge As to the discharge
interview, Holmes, who was on the carpet, was naturally
on edge Allowing some reasonable latitude for human
emotions , nothing occurred at the meeting which would be
a logical ground for discharge I am not persuaded,
therefore , that Lowery discharged him because of any
remarks, or his appearance, or his "attitude" during the
meeting And because of management's continued uncer-
tainty about events at the coffeebreak , I am not persuaded
that was a reason either
Although Lowery and Wolf both denied Holmes was
fired because of union activity, he clearly was fired for
some reason Absent some more convincing showing of a
nondiscriminatory motive than appears in this record, I
infer from the circumstances (Company knowledge of his
union activity, the timing of the discharge in relation to the
organizing, and the discrimination against hun during the
layoff) that at the time of discharge Lowery was motivated
by a desire to rid himself of the union activist Accordingly,
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find from a preponderance of the evidence that the
discharge was discrimination because of union activity and
was, and is , an unfair labor practice forbidden by Section
8(a)(3) of the Act
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relation to trade, traffic , and commerce among
the several states Those found to be unfair labor practices
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce and are unfair
labor practices within the meaning of Sections 8(a)(1) and
(3) and 2(6) and (7) of the Act
and is engaging in, unfair labor practices within the
meaning of Section 8(a)(1) of the Act
4 By discharging Wayne Holmes on February 17,
1972, and by for approximately 2 weeks prior thereto
frequently shifting his job assignments, both because of his
union activities , Respondent discriminated in regard to his
tenure of employment and the terms and conditions of
employment to discourage membership in a labor organi-
zation and in both regards committed , and is committing,
unfair labor practices within the meaning of Section 8(a)(3)
of the Act
5 Such unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act
Upon the foregoing findings of fact , conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended i
V THE REMEDY
Having found that Respondent violated Section 8(a)(1)
and (3) of the Act, I recommend that it cease and desist
therefrom and take affirmative action designed to effectu-
ate the policies of the Act I also recommend that
Respondent offer to Wayne Holmes immediate , full, and
unconditional reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights, privileges
or working conditions , and make him whole for any loss of
earnings he may have suffered as a result of discrimination
against him by paying him a sum of money equal to the
amount he would have earned from the date of his
discharge on February 17, 1972, to the date Respondent
offers him reinstatement, less his net earnings during that
period in accordance with the Board's formula stated in F
W Woolworth Company, 90 NLRB 289, with interest
thereon at the rate of 6 percent per annum as set forth in
Isis Plumbing & Heating Co, 138 NLRB 716, and that it
make records available to Board agents in connection with
compliance therewith I further recommend that Respon-
dent post appropriate notices At the hearing the Union
orally urged that Respondent also be ordered to bargain
with the Union The General Counsel declined to join in
that prayer In the circumstances, including the fact that
the Regional Director for Region 18 has certified the
results of an election which the Union lost and the fact that
no refusal to bargain is alleged in this proceeding, I deem a
bargaining order to be inappropriate
CONCLUSIONS OF LAW
1 Respondent is an employer within the meaning of
Section 2 (2), engaged in commerce within the meaning of
Section 2(6) and (7) of the Act
2 The Union is a labor organization within the
meaning of Section 2(5) of the Act
3 By coercively interrogating employees regarding
their union activities Respondent interfered with their
rights under Section 7 of the Act and thereby engaged in,
ORDER
Lowery Trucking Company, its officers , agents, succes-
sors, and assigns, shall
1 Cease and desist from
(a) Coercively interrogating employees regarding union
activities
(b) Discouraging membership in General Drivers and
Helpers Union Local Union No 554, affiliated with
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , or any other
labor organization , by discharging or by discnminatmg in
regard to work assignments or by otherwise discriminating
in respect to the hire or tenure of employees or any term or
condition of their employment
(c) In any other manner interfering with , restraining, or
coercing employees in the exercise of their right to self-
organization , to form a labor organization, tojoin or assist
a labor organization, to bargain collectively through
representatives of their own choosing , and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection , or to refrain
from any or all such activities
2 Take the following affirmative action to effectuate
the policies of the Act
(a) Offer Wayne Holmes immediate, full, and uncondi-
tional reinstatement to his former job or, if that job no
longer exists , to a substantially equivalent position, without
prejudice to his seniority or other rights, privileges and
working conditions, and make him whole for any loss of
earnings he may have suffered as a result of discrimination
against him in the manner set forth in the section hereto
entitled "The Remedy "
(b) Notify immediately Wayne Holmes, if presently
serving in the Armed Forces of the United States, of his
right to reinstatement , upon application after discharge
from the Armed Forces, in accordance with the Selective
Service Act and the Universal Military Training and
Service Act
(c) Upon request, make available to the Board and its
agents for examination and copying all payroll and other
1 In the event no exceptions are filed as provided by Sec 102 46 of the 102 48 of the Rules and Regulations be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board the findings its findings conclusions and Order and all objections thereto shall be
conclusions and recommended Order herein shall as provided in Sec deemed waived for all purposes
LOWERY TRUCKING COMPANY 679
records containing information concerning compliance
herewith and Respondent's backpay obligation hereunder
(d) Post at its premises in Council Bluffs , Iowa, copies of
the attached notice marked "Appendix "2 Copies of the
notice on forms provided by the Regional Director for
Region 18, after being duly signed by Respondent's
representative , shall be posted by it immediately upon
receipt thereof , and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered , defaced , or covered by
any other material
(e) Notify the Regional Director for Region 18, in
writing, within 20 days from the date of the receipt of this
Decision , what steps Respondent has taken to comply
herewith 3
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found herein
2 In the event that the Board s Order is enforced by a judgment of the
United States Court of Appeals , the words in the notice reading Posted by
Order of the National Labor Relations Board shall read Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board
3 In the event that this recommended Order is adopted by the Board
after exceptions have been filed this provision shall be modified to read
Notify the Regional Director for Region 18 in writing within 20 days
from the date of this Order , what steps Respondent has taken to comply
herewith
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after a
trial , that we violated federal law by questioning employees
about union activities and by frequently changing the work
assignments of Wayne Holmes and then firing him because
of his union activities
WE WILL offer Wayne Holmes his old job and pay
him any wages he has lost, with interest
WE WILL NOT change work assignments because
employees engage in umon activities
WE WILL NOT discharge or discriminate against
employees because of their umon activities
WE WILL NOT interrogate employees about their
union activities
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of their
right to self organization , to form labor organizations,
to join or assist a labor organization , to bargain
collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities
LOWERY TRUCKING
COMPANY
(Employer)
Dated By
(Representative) (Title)
We will notify the above-named individual , if presently
serving in the Armed Forces of the United States, of the
right to full reinstatement, upon application after discharge
from the Armed Forces, in accordance with the Selective
Service Act and the Universal Military Training and
Service Act
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, 316 Federal Building, 110
South 4th Street, Minneapolis , Minnesota 55401, Tele-
phone 612-725-2611