Martin-Bower Co.

National Labor Relations Board - Board Decisions

Dec 1, 1977

233 N.L.R.B. 876 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Martin-Brower Company and Earnest J. Ingram.
Case 9-CA-10799
December 1, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On August 19, 1977, Administrative Law Judge
Anne F. Schlezinger issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt her recommended Order, except that the
remedy is modified so that interest is to be computed
in the manner prescribed in Florida Steel Corporation,
231 NLRB 651 (1977).I
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 the Respondent, the Martin-
Brower Company, Columbus, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended order.
I See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1961).
DECISION
STATEMENT OF THE CASE
ANNE F. SCHLEZINGER, Administrative Law Judge:
Upon a charge filed on November 11, 1976,1 by Earnest J.
Ingram, an individual, the General Counsel, by the
Regional Director for Region 9 (Cincinnati, Ohio), issued a
complaint and notice of hearing on December 30. The
complaint, as amended at the hearing, alleges in substance
that The Martin-Brower Company, herein called the
Respondent, interfered with, restrained, and coerced
employees in the exercise of the rights guaranteed in
Section 7 of the National Labor Relations Act, as
amended, by interrogating and threatening employees
regarding union activities and by creating the impression
that it was keeping the union activities under surveillance;
and discriminated in regard to hire and tenure of
employment by discharging Ingram on or about November
5, and at all times thereafter failing and refusing to
reinstate him, because of his membership in and activities
on behalf of, and in order to discourage membership in,
Teamsters Union Local 413, affiliated with the Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Union; and
thereby engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the Act.
The Respondent, in its answer duly filed, admits some of
the factual allegations of the complaint, but denies that it
has engaged in conduct violative of the Act.
Pursuant to due notice, a hearing was held before me at
Columbus, Ohio, on March 29 and 30, 1977. All the parties
appeared at the hearing and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and
to introduce relevant evidence. Subsequent to the hearing,
on or about May 2, 1977, the General Counsel and the
Respondent filed briefs which have been duly considered.
Upon the entire record in this proceeding and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a Delaware corporation engaged in
the wholesale distribution of food and miscellaneous
products at its Columbus, Ohio, location. During the past
12 months, which is a representative period, the Respon-
dent had a direct outflow of goods in interstate commerce,
valued in excess of $50,000, which it sold and caused to be
shipped from its Columbus, Ohio, location directly to
points located outside the State of Ohio. The complaint
alleges, the Respondent in its answer admits, and I find
that the Respondent is, and at all times material herein has
been, an employer as defined in Section 2(2) of the Act,
engaged in commerce and in operations affecting com-
merce as defined in Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent in its answer
admits, and I find that the Union is, and at all times
material herein has been, a labor organization as defined in
Section 2(5) of the Act. The parties stipulated at the
hearing that, pursuant to a petition filed by the Union on
November 17 in Case 9-RC-11808, and a Stipulation for
Certification Upon Consent Election entered into on
December 28, an election was held among the drivers of
the Respondent on January 22, 1977, and the Union was
certified by the Board as the representative of these
employees on February 3, 1977.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The issues herein are whether or not certain supervisors
of the Respondent interrogated employees about their
activities on behalf of and sympathy for the Union,
threatened employees with loss of benefits and closing of
I All dates hereinafter refer to 1976 unless otherwise indicated.
233 NLRB No. 130
876
THE MARTIN-BROWER COMPANY
the Columbus operation if the employees chose the Union
as their collective-bargaining representative, and created
the impression that the Respondent was keeping the union
activities of its employees under surveillance, in violation
of Section 8(a)(1) of the Act; and whether the Respondent
discharged Ingram because of his membership in and
activities on behalf of the Union and in order to discourage
membership in the Union, in violation of Section 8(a)(3)
and (I) of the Act, or discharged him for cause and in
accord with its established policies and procedures.
B. Organization of the Union
There are distribution centers at various locations in
addition to the one at Columbus, which began operating in
or about January 1975 with Rainer Hock as distribution
center manager. Robert Mohrhusen was transferred to
Columbus as transportion manager on April 1, 1976. Curtis
Gaddis, a business agent of the Union's local which
represents employees at the Louisville, Kentucky, distribu-
tion center, began contract negotiations with company
officials on October 5. He told these officials, including
John Whitney, who was eastern regional distribution
manager and Hock's immediate superior, at negotiation
sessions on and after October 5, of his intention to organize
the Columbus terminal. Gaddis made a couple of orga-
nizing trips to Columbus in November, did some handbill-
ing, and handed out cards. He discontinued these activities
after a trip on December I when he learned that another
local was organizing the Columbus employees and had
filed a petition on November 17. Harold Wicker, who was
a driver for the Respondent over a year, testified that he
and others discussed the Union in the drivers' breakroom,
that a number of drivers became interested in the Union
and signed cards after Ingram was discharged on Novem-
ber 5, and that the petition was then filed.
Some of the drivers, however, had been talking about
organizing long before these November activities. They
discussed it when they met at truck stops or in the drivers'
breakroom or elsewhere on company premises after
completing their runs. Shortly after Mohrhusen, who
supervised the drivers, was transferred to Columbus, some
of the drivers became concerned that trucks were being
overloaded to an extent that made unloading at their
various delivery points hazardous. They discussed orga-
nizing because of this and other employment problems.
In late June some of the dnvers met about 7 p.m. in the
warehouse cafeteria. Ingram saw them there when he
returned from a run, joined the group, and indicated to the
others for the first time that he was in favor of the Union.
Some of the drivers present were surprised as they had
thought of him as a company man who was opposed to the
Union. Hock and Mohrhusen also believed him to be
uninterested in a union. The group selected Ingram and
Robert Griglek, who was a driver for the Respondent more
than 2 years, to go to the Union the next day, when both
had the day off, to get union cards. On the next day,
2 The complaint, alleging that Mohrhusen engaged in certain conduct
violative of Sec. 8(a)( ) of the Act beginning in September. was amended at
the hearing to allege this conversation, in or about early July. within the
10(b) period, as an additional incident constituting unlawful interrogation.
however, Griglek was unavailable and Ingram decided not
to go alone.
C. Interference, Restraint, and Coercion
1. Background evidence
The General Counsel presented as background evidence
testimony about certain pre-Section 10(b) events. Griglek
testified that Hock, in January 1975, said that if the
employees voted union they would lose employment
benefits and that certain management officials did not like
unions. Griglek also testified that Hock called him into the
office in late November 1975 and said the Union would do
no good and would not get the men better benefits; that
Hock asked if he had a release card from the Union, and he
said he and most of the drivers did; that, after more
discussion about the Union and work problems, Hock said
if the Union did get in, the Respondent would close the
plant and move; and that he always made a prounion
response.
Hock testified that he did not recall the conversation in
November 1975 described by Griglek; that he never said he
would close down or move, or employees would lose
benefits, if the Union came in; and that "whenever the
subject of benefits or salary or holidays or vacation pay or
anything else came up ... I told anybody that I talked to
that if we were in a union situation, we would sit down and
negotiate everything that would be in that agreement."
Griglek testified that William Spivey, who was a driver
for the Respondent since January 1975, asked him, in
March 1976, if he was interested in the Union, and he said
he was; that he was called to Mohrhusen's office at about
this time; that Mohrhusen said he understood Griglek was
trying to get the Union in, but refused to answer how he
knew that; and that he said he did not like to be blamed for
something he did not start, and it was Spivey who first
spoke to him about the Union.
Mohrhusen testified that he did not recall telling Griglek
he understood Griglek was trying to get the Union in, or
Griglek stating in response that it was Spivey.
2. 8(aXI) allegations
Ingram testified that he usually went to the distribution
center on his day off to check his runs for the next day;
that when he did so about a week after the drivers' meeting
in the cafeteria, Mohrhusen called him to the office and
discussed driving accidents generally; that Mohrhusen
then asked if he knew anything about the union movement,
and he said he did not; that Mohrhusen, referring to a list,
asked if he knew whether certain named drivers were
involved in the Union, and he said he did not and did not
want to be involved in this questioning; and that Mohrhu-
sen thanked him and he left.2
Mohrhusen testified that he did not recall in July asking
Ingram about a list of drivers and the Union, and that he
did not recall Ingram saying he did not want to get
There was no reference in Ingram's pretrial affidavit to a conversation about
the Union on this date. Ingram testified that he recalled it after the affidavit
was prepared.
877
DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
involved in these questions. Mohrhusen also testified that
Ingram came to the office about the time there was an
OSHA inspection; that they were then on a cordial basis;
that when he told Ingram of the inspection, Ingram said
Griglek made the report to OSHA and "he also implied
that Bob Greglek was involved in some organizational
activity, or he was suggesting that we should go to a union,
and I just tried to ascertain why he was going there,"
whether it was based on the OSHA report which was about
heavy loads; and that was the entire conversation.
Mohrhusen testified further that: "My first exposure to the
union? Okay. Anyone talking about the union that I can
recollect was when Mr. Ingram confronted me the day that
we spoke about the OSHA report, and he mentioned Mr.
Greglek's name." He testified also that the name of Spivey
or other employees "never came up and I never at anytime
tried to ascertain any names as far as the union involve-
ment was concerned. I just was primarily concerned with
the whys." Mohrhusen also testified that his office was next
to, and had "a big glass window" overlooking, the drivers'
room, "so, therefore, anytime there was traffic in or out
. . . it would naturally meet my eye .. ."; that he made it
a point at this time to call the drivers, including Ingram, to
his office almost daily, before or after their runs, "in order
to determine what problems they might have or what are
areas of any disenchantment that they might have"; and
that these conversations were not about unions "other than
maybe, you know, an academic approach to unions in that
what would be gained by a union."
Meetings of drivers and management were held for
rebidding of routes every 13 weeks on a Saturday morning,
not normally a workday. In or about mid-July, Hock held a
meeting of drivers at which other management personnel
present were Mohrhusen, James Dahlem (transportation
supervisor), and Neil Huntley (vice president of operations
of national accounts division).3 At this meeting, Hock
described existing and new company benefit plans and
Huntley discussed the retirement plan.
Raymond Bass, who was a driver about 14 months,
testified that he asked to be excused from going to this
meeting so he could attend his brother's wedding; that
Hock and Mohrhusen asked to talk to him before the
meeting; that in this conversation Hock asked how he felt
about the Union, and he replied he did not think a union
was needed unless for job security; and that Hock said, if
the operation went union, it would close. Bass also testified
that Mohrhusen knew he was prounion.
Phillip Osborne, a driver over 2 years, testified that Hock
at this meeting, after describing a new health plan, asked
for employee complaints; that when a question was raised
about the meal allowance on layover trips, management
agreed to look into the matter; and that Hock said the
Union would not help the drivers, the Union could not
guarantee job security, and if the employees brought in the
Union they would lose some privileges. He also testified
that after the meeting Hock asked how he would vote if
there was an election, and he answered it was none of
Hock's business; and that Hock then said, if the Union
came in, Hock would cut the pay and hours of work.
3 There was some confusion in the testimony as to the date of this
meeting. No records were introducted by the Respondent that establish the
date. Dahlem and Huntley were not called to testify.
Ingram testified that Hock, after the discussion of
company benefits, said there was a rumor everyone wanted
to go Union, and asked that the employees discuss their
problems at the meeting. Ingram requested an increase in
the meal allowance on layover runs, and Hock agreed to
see what could be done about it. The meal allowance was
raised after this meeting from $17 to $20.
Spivey testified, as a witness for the Respondent, that he
favored the Union at one time because he felt, like the
others, that the loading was sloppy, but he was actually
against unions in the 22 years he has been a driver; that he
was at the meeting when Hock spoke of the new benefits
plan; that Hock "asked if anybody had any complaints
about anything, now would be the time to air them, and I
had heard rumor of the union going around. .... I said,
I've heard rumors of the union going around. I said, I'm
getting tired of hearing the bitching. Let's bring it out in the
open", that Hock did nothing then as far as he knew; that
he thought Hock discussed the Union, but could not recall
what Hock said; and that he did recall "there were no
threats at all" then or at any time since then, and no
promises based on employees being against the Union.
Roger Kreps testified, as a witness for the Respondent,
that he attended the meeting at which management
discussed the new insurance program; that Hock "asked if
anybody was discontent or anything, and he had heard
that there was rumblings of bringing a union in, and he
said, well, let's get it out in the open and discuss it, what the
problem is and maybe we can cure it"; and that Hock
made no threats or promises of benefit with reference to a
union then or at any other time that he heard.
Charles Young, a driver since September, testified, as a
witness for the Respondent, that Hock, after presenting the
new health plan, said there were rumors of union talk that
should be discussed at the meeting, and asked for employee
complaints; that no complaints were raised; and then that
he recalled that someone spoke of meal money and Hock
said he would try to remedy that complaint. Young denied
that any threats or promises were made about the Union,
but admitted that he left the meeting with the clear idea the
Respondent did not want the Union at the Columbus
terminal.
Hock testified that Bass was given permission to leave
the meeting early but was present during the discussion of
benefits; that before the meeting he said Bass had raised
problems about loading and other matters and would not
be present for the open discussion, so "I asked him if he
had anything that he wanted to tell me at that time"; that
he was "not really sure" about what Bass told him and did
not recall whether they discussed going union; but that he
did not threaten to close down.
Hock testified that he invited employees at the meeting
to present any problems they had because drivers had
requested a meeting for this purpose; that the only matter
raised was travel money; that, although reminded by the
question that Spivey claimed to have brought up the
subject of the Union, he knew there was a discussion of the
Union but was not sure how the subject was brought up or
what he said except that "The general nature wasn't much
878
THE MARTIN-BROWER COMPANY
different - it was basically the same as our corporate
philosophy on unions"; and that Huntley said after the
meeting "He had thought that it had gone very well and he
thought that it had been productive." Asked then if he
"ever threatened to close the Columbus Plant if a union
came in," he answered "No."
Hock testified that he did not recall asking Osborne or
any other employee how he would vote and no vote was
pending in July; and that he did not recall making certain
remarks about reduced pay and hours, and was not likely
to say such things because, while he makes area wage
surveys and recommendations, the final decisions are made
by a management committee of which he is not a member.
Mohrhusen testified that Spivey, without naming any
drivers who were "disenchanted," had urged a meeting at
which to discuss the drivers' problems and "see what we
could do to get them corrected"; that he and Hock
discussed this and decided to hold the meeting to
determine what "elements of disenchantment are floating
around and what we could do to correct any problems";
and that "disenchantment" referred to the fact he heard the
drivers had some reasons for complaint, this disenchant-
ment "had led to rumors of potential union activities," and
he had heard rumors of potential union activities.
Mohrhusen also testified that he recalled Hock talking to
Bass that day but did not recall "whether it was before or
after the meeting"; that "we said that the subject of
disenchantment might be introduced during the meeting
and since he [Bass] wasn't going to be there, would he like
to . . . tell us about any of the problems or gripes that he
might have at that time.... I don't recall that he had
any"; that he did not recall that Bass made any comment
about job security; and that he did not recall making
certain remarks Bass attributed to him in another conver-
sation.
Mohrhusen testified further that at the meeting, after
benefits were discussed, Spivey "spoke up and said that he
would like to request that while all the drivers were there at
that meeting, we talk as a group about some of the
disenchantment of union problems. .... Not union
problems.... Any problems that the drivers might have
which would cause a potential organizational attempt";
and that several complaints were raised but the only one he
could recall was layover expense. Mohrhusen answered
"No" to questions whether Hock, at the meeting or at any
other time, said "the plant would be closed or shut down or
anything like that if the union came in" or made "any other
threats about a union coming in."
Mohrhusen testified that, as a distribution center
operations manual, outlining steps to be taken so that
employees will not seek union representation, requires that
"Any organizational activity should be reported immediate-
ly, by telephone, to the Regional Manager and the Director
of Industrial Relations," he would have made such reports.
Ingram testified that, about a week or two after the Hock
meeting, he came in from a run about 7 p.m. and saw Hock
talking to Mohrhusen in the drivers' room; that Hock
asked if he had any problems, and he said he did not, but
Hock said he did and asked him to come to the office; that
in the office Hock mentioned hearing he wanted to go
Union and asked if that was so, and he said he was ready;
that Hock suggested discussing his problems, and he spoke
of trailers loaded so full they could not be unloaded safely,
and of going through channels personally to raise this
matter five or six times over a period of several months, but
nothing was changed; that he also said a majority of the
drivers wanted to go Union; that Hock admitted knowing
that and said if the Union came in he would lose pension
benefits and take a wage cut; that Hock took some folders
out of the desk and explained it was a survey showing other
companies doing similar work paid less than the Respon-
dent; that he said it was not the money but the loading that
was the problem; and that Hock said if there were further
problems, he should come to the office, and he said he
would.
Hock testified that there was such a conversation but it
was in late August; that Mohrhusen had said Ingram was
upset and, as Ingram had never been a complainer, he was
upset, so he asked Ingram to come to the office to talk; that
he said the personnel procedure is to take problems to the
immediate supervisor and on up the managerial staff; and
that they discussed certain problems, including the loading,
which he agreed was a problem that management was
trying to solve. Hock also testified that, although he was
not sure how the subject was raised, Ingram said some of
the drivers were thinking of going to the union hall and he,
Ingram, was thinking of going with them; that "I told him
that based on the things that he had come to me, that the
problems that he talked about, I didn't feel that a union
situation would resolve those problems for them," and that
the drivers would not necessarily receive the rates in the
union master freight agreement because "whatever the pay
would be, would be negotiated between the company and
the union"; that he showed Ingram a survey he had taken
demonstrating that many companies in the area that were
organized were not paying the master freight rates to
drivers; and that Ingram suggested he make this explana-
tion to the other drivers "or else, if you don't tell them or if
you don't do something, you are going to have union."
Hock also testified that, while he did not make "the same
pitch" to the other drivers, he thought, when Ingram
walked out, they were on good terms, and their relationship
continued to be excellent up to the time of Ingram's
terminations. Hock denied that Ingram had done anything
up to the day he was terminated that caused him to believe
Ingram "was a leader or active in the union organization."
Hock also denied that he made any threat to close down in
his conversation with Ingram.
Concluding Findings
Ingram and other witnesses of the General Counsel,
although confused and inconsistent in some particulars,
impressed me as generally candid and straightforward
witnesses trying to recall and relate what was said, what
occurred, and when. Hock and Mohrhusen, however,
appeared from their demeanor to be vague, evasive, and
unconvincing witnesses, and much of their testimony is, in
all the relevant circumstances, implausible. Moreover,
Hock and Mohrhusen explicitly denied threats to close
down or move the Columbus operation but, as to other
conduct ascribed to them by the General Counsel's
witnesses, stated only that they could not recall, and both
879
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
admitted engaging in some of the conduct in issue.
Accordingly, in view of the demeanor of the witnesses and
the nature of the testimony they presented, I discredit in
large part the testimony of both Hock and Mohrhusen.
Further, I find the conclusionary statements by witnesses
for the Respondent that no threats were made do not refute
the testimony that certain remarks were made which the
Board finds coercive within the meaning of the Act.
On the basis of the testimony that I credit, of the
admissions made in the testimony of Hock and Mohrhu-
sen, and of the evidence in its entirety, I find that Hock and
Mohrhusen, on various dates during the period approxi-
mately of July through September, called Ingram and other
drivers to the office and questioned them about the
organizing activities of themselves and of other employees;
that Hock at a meeting of drivers raised the subject of
union organization, related the existing and new employ-
ment benefits, asked about employee complaints, promised
to consider the meal allowance complaint raised by
Ingram, and did later increase the amount; that Hock told
employees that, if the union campaign were successful, the
Columbus operation would be shut down or moved, or that
employees would lose certain employment benefits; and
that, by remarks Hock made to employees indicating
knowledge of their interest in the Union, he created the
impression that the Respondent was maintaining surveil-
lance over the union activities of the employees. Accord-
ingly, I find that the Respondent, by the foregoing conduct,
interrogated employees concerning their activities on
behalf of and sympathy for the Union, threatened
employees with loss of employment benefits and closing of
the Columbus operation if they designated the Union as
their collective-bargaining representative, and created the
impression that the Respondent was keeping the union
activities of its employees under surveillance, and thereby
interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed by Section 7 of the Act, in
violation of Section 8(a)(1) of the Act.4
D. The Discharge of Ingram
1. Driving accident rules
Company rules provide, in a section of the operations
manual5 entitled "Driver Safety Award Program," that the
company follows the guidelines of the National Safety
Council, of which it is a member, in determining whether
an accident was preventable; that an accident is classified
as preventable if it is found that the driver failed to do
everything he "reasonably" could to prevent the accident,
not on the basis of cost or liability; that 20 categories of
accidents are set forth "as a guide in determining questions
of preventability"; and that a driver who has three
preventable accidents within a 12-month period is disquali-
fied from driving. The manual also provides that -
C. Decisions with regard to accident preventability
will be made by the Distribution Center Personnel
4 Central Power & Light Company. 173 NLRB 287, 293 (1968). Schwab
Foods, Inc., d/b/a Scotts IGA Foodliner, 223 NLRB 394 (1976).
5 Hock testified that the Chicago office prepares the manual and sends
(please contact the Corporate Fleet Administrator for
help if needed).
D. Drivers may challenge a ruling in writing,
including their reasons for the challenge. The Distribu-
tion Center will forward this letter together with all
supporting data to the Corporate Fleet Administrator
where the accident will receive a special review.
Mohrhusen admitted that no written rules as to accidents
were given to the drivers, who are advised about this only
by word of mouth. Ingram maintained he was never
officially told of the three-accident rule but heard of it as a
rumor among the drivers. Donald Jones, who had been
transportation supervisor before he left the Respondent's
employ in July, testified that he was told of the three-
accident rule but did not know if the drivers were aware of
it then, and that he did not know who made the
preventable determinations or on what they were based.
Bass testified that he has been aware of this rule since
Ingram's discharge, that he was never previously informed
of it by a supervisor, and that he did not recall any
discussion of it at a meeting with management. Osborne
testified that Hock told him of the rule about the time he
was hired, and that a few other drivers knew of it, but that
it was not common knowledge among the drivers.
Of the employees called as witnesses for the Respondent,
Kreps testified that he knew, since his hire as a driver in
January 1975, of the rule that a driver who has three
accidents in a year is terminated, and that when the
operation began, at meetings of the new drivers at which
Ingram was present, management said it was "a company
policy that if you have 3 accidents within a 12-month
period, you'll lose your job. You'll lose your driving rights,
anyway"; Spivey testified that Hock told all the new
drivers of the rule at a meeting about the time he started to
work for the Respondent in January 1975, and that Ingram
was at this meeting; and Young testified that he learned
when hired of the rule that three preventable accidents
within a year meant discharge, but that he did not know if
other drivers were aware of it.
2. Ingram's employment history
Ingram had been a truckdriver and did some warehouse
work for years with the Army and with other employers,
and had driven about 400,000 miles without an accident,
before going to work for the Respondent on January 6,
1975. His experience was set forth in his employment
application filed with the Respondent. He was highly
regarded by the Respondent as a driver, had never been
reprimanded or disciplined, and in March 1976 received
the "Driver-of-the-Year" award for 1975. It was signed by
James Bryan, then transportation manager, and stated that
it was based on Ingram's driving over 42,000 miles for the
Respondent "with no accidents or violations of any kind.
He delivered to a total of 961 units with a service reliability
of better than 99 percent. John has performed in a superb
manner in all areas of his job responsibility. His attention
to detail, safety consciousness, neat, complete paperwork
and his appearance and attitude all reflect a superior
the Respondent four looseleaf copies, and that he and Mohrhusen each has
one of the copies.
880
THE MARTIN-BROWER COMPANY
degree of professionalism. In the area of customer service,
John has developed and maintained the kind of close
working relationship with each of his scheduled delivery
units which is such an important asset to the Company."
3. Ingram's first accident
Ingram had his first accident at a delivery unit in
Milwaukee on February 12. He testified that he was driving
to the unit's freezer carefully because of low-hanging wires
but the exhaust stack caught on one; that he got the wire
off the trailer and then called Bryan and reported the
accident; that he said that the unit manager had called the
Chicago office, and that he had written up these low-
hanging wires the 2 previous weeks; that Bryan said he
should make out an accident report at the scene 6 and give
it to Bryan when he returned the next day; and that he
offered to pay for the damage to keep it off his record, and
Bryan said they would discuss it the next day. Ingram
testified that Bryan commented the next day that he had
had some bad luck but did not mention anything about it
being preventable or nonpreventable, that about a month
later Bryan asked for a more detailed form report on the
accident, and that he never received a warning letter or
suspension for this accident.
Hock testified that the Chicago office received a report
from Milwaukee about the first accident and notified him,
that he questioned Bryan who had heard nothing about it,
and that the Respondent's telephone records showed no
credit card call from Milwaukee on February II. He
conceded on cross-examination, however, that the accident
in fact occurred on February 12, that Ingram was the only
driver in Milwaukee then, and that the telephone records
showed a charge for a Milwaukee call on that date.
4. Ingram's second accident
Ingram had his second accident at a delivery unit in
Logan, Ohio, on June 10. He testified that he was pulling
into the delivery area in back at the lunch hour when the
lot was crowded; that he turned too sharply and hit the
roof overhang at a corner of the building with the rear of
the trailer; and that it put a rip in the trailer but did no
damage to the overhang. Ingram testified that he called
Don Jones, transportation supervisor at the time, and
reported, with reference to a joke between them, "that I
had drove into their kitchen"; that as he was describing
what occurred, Jones switched the call to Mohrhusen, and
Ingram described what occurred to Mohrhusen. Ingram
was told to fill out an accident report and submit it when
he returned. He testified that he made one out and gave it
to Mohrhusen when he returned the same day, and that
Mohrhusen "just said a little bit of bad luck. That was it."
Ingram testified that Mohrhusen asked about a week
later for a report for the company from which the
Respondent leases its tractors; that he did not make out
such a report after the first accident, but Mohrhusen said
this was needed for the insurance company; and that he
was not reprimanded or suspended for this accident, and
Each truck had a supply of small accident reports that dnvers made out
at the scene. They made out more comprehensive reports on their return.
Mohrhusen did not tell him, in the telephone conversation
or later, that it was preventable.
Ingram testified that in late June, Mohrhusen told him of
a letter from the Chicago office about preventable
accidents that said the Columbus drivers were having too
many accidents involving low-hanging wires and fender-
benders, that three could be cause for discharge, and that
he had had two accidents.7 He also testified that Mohrhu-
sen said the Respondent would never discharge Ingram for
such minor accidents because it cost so much to train a
driver.
Jones testified that as Transportation Supervisor he
received numerous calls about minor incidents, that he
recalled the call from Ingram on about June 10 because
Ingram joked about it, that Ingram was not sure if there
was any damage and was told to continue his run, and that
he instructed Ingram to fill out the report that he would
leave on his desk, and then turned the telephone over to
Mohrhusen.
Mohrhusen testified that his office had a window
overlooking the dock, and that he learned of the second
accident when he saw from that window, within a week of
the accident, a trailer with a gash in it; that he questioned
Jones, who did not know how it happened; that he
questioned each driver who had operated the trailer in the
past week and learned of the accident in Logan which
Ingram admitted to him; and that he then told Ingram to
fill out a report, and Ingram did. Mohrhusen's testimony as
to the location of the damage was confused. He testified
that he saw it in the daytime but did not know if in the
morning or afternoon, that the particular trailer was used
every day and it was unusual for it to be at the dock in the
position he described, and that he did not recall the name
of any driver he questioned about it except Ingram.
Mohrhusen testified that Ingram pointed out the damage
was not severe but was concerned about whether it would
be found preventable, that he said a report had to be made
and it looked to him as if it was preventable, and that,
when Ingram admitted running into a delivery unit, he said
it would be found preventable. Mohrhusen testified that
this second accident was not submitted to the National
Safety Council, that not all accidents are submitted to the
Council as the Respondent makes its own rulings on
preventability, but that every accident is reviewed by the
Chicago office.
Ingram testified that he did not receive his expense check
when he left on an Akron run on a Friday in late July, that
he called from his first stop and spoke to Dahlem who
insisted he had enough money, that the call was transferred
to Mohrhusen who asked what was in his craw and then
agreed to send him some money, and that Mohrhusen
asked if he still wanted to go union, and he answered that
he did not know.
Mohrhusen testified that at this time Ingram's cordiality
with him had waned, and that he asked what was in
Ingram's craw as he was concerned with Ingram's attitude
at that time. Asked if he said anything about the Union or
if Ingram said anything about Mohrhusen's attitude having
changed since Ingram became interested in the Union,
I Ingram's testimony was self-contradictory as to whether Mohrhusen
said he had two accidents or two preventable accidents.
881
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mohrhusen answered that there was "nothing about union,
no, other than the fact that some attitudes had changed
... I was saying that the attitudes had changed . . .
Nothing was said about a specific attitude, no."
5. Ingram's third accident
Ingram had his third accident on Sunday, September 12,
in Pulaski, Virginia. He testified that he was driving up a
steep incline in the parking lot of a motel where he was
going to check in; that, as he turned, a car behind him was
so close he did not see it, and the tractor hit the left fender
of the car as the driver tried to pass him; that he called the
police and then Mohrhusen, who said he should submit an
accident report when he came in, and should call to report
what the police said, but made no mention of preventabili-
ty or discharge; and that the policeman at the scene
reprimanded the driver of the car for passing Ingram's
truck on the right but did not make a police report as it
occurred on private property.
Ingram made out the small accident report at the motel
and turned it in when he got back from his run on
September 13. He also made out the more detailed report
in longhand. That report was later typewritten. He testified
that there was no reference to this accident until mid-
October when he came in from a run; that Mohrhusen
asked to discuss the accident in detail and requested a
better diagram because another report might be needed;
that, after he drew another diagram, Mohrhusen said the
additional report was not needed; that Mohrhusen said he
would try to get a nonpreventable ruling from the Chicago
office; that no reference was made to the National Safety
Council or to discharge; and that he continued to drive a
truck.
Hock testified that he was told by Mohrhusen about
Ingram's third accident, he did not know how long after it
occurred; that he and Mohrhusen agreed to rule it was
nonpreventable; and that he thought there was enough
"gray area" that the ruling would stand.
Mohrhusen testified that Ingram called him about the
third accident and asked if it meant termination; that he
replied they would wait until Ingram returned to determine
this; that he had Ingram's report typed by Dahlem and
went over it with Hock, and they decided to classify it
nonpreventable because of the "gray area"; and that he
sent Ingram's report to the Chicago office with a handwrit-
ten note, of which he had no copy, as to the nonpreventa-
ble decision he and Hock reached.
Hock and Mohrhusen admitted that, despite the direc-
tives from the Chicago office, it was local policy not to
discipline a driver for the first or second accident, but to
disqualify him from driving for a third. Mohrhusen also
testified that the Respondent advises a driver who has had
a second accident that a third within 12 months "would be
grounds for disqualification"; that he so counseled Ingram
in the drivers' room on June 16, the date on which Ingram
signed his report; and then that it was Ingram who said, on
turning in the report, that it was the second, and the third
could result in dismissal, and he concurred.
s The parties stipulated at the hearing that Town, if called as a witness,
would testify that eight named drivers, three at Toronto, two at Atlanta, two
R. W. Coker of the Chicago office notified Columbus,
under date of October 4, in part as follows:
I received the accident report for E. Ingram of
9/12/76, where he was turning in a parking lot and
collided with a car. Your ruling was nonpreventable
because you felt that because our vehicle was moving I
or 2 miles per hour, and the other vehicle should not
have been so close to our vehicle.
Corporately, I am recording a preventable ruling
because a professional driver always checks his mirrors
before turning, and the car would have been visible had
he done so.
I am sending copies of the National Safety Council's
Accident Reports and you can have the driver complete
them, and the ruling of the National Safety Council
Committe [sic] is final and binding. Have the driver
carefully complete the forms, completing all blanks,
and return all six copies to me.
According to Corporate ruling, three preventable
accidents in a 12 month period calls for termination.
Let me know what you decide.
Hock testified that Dahlem notified him of this letter.
Hock did not respond to the request in the letter that Coker
be notified of what the Respondent decided. He testified
that Whitney, the Regional Distribution Manager, called
and asked what was done about this matter, and that he
replied he was waiting for Ingram to complete the Council
forms and for a council decision "so we could make a final
decision."
Mohrhusen testified that Dahlem put the council forms
in Ingram's box together with a copy of part of the Coker
letter, but that they omitted the part of the letter stating the
third accident was preventable because seeing it might
affect Ingram's driving which had not been curtailed.
Mohrhusen also testified that he agreed that Ingram could
hold up completing the council forms until there was local
review.
C. E. Town, manager of national transportation,8 sent
distribution center managers a communication dated
October 13 that provides in part as follows:
Judging of Accidents - Preventable or not Preventable
Section 503.8 of the Distribution Center's Operations
Manual contains a guide to help you judge accidents.
If you are in doubt about a preventable or nonpre-
ventable ruling of an accident please:
I. Refer to Section 503 of the Operations
Manual and/or
2. Call National Transportation
You should endeavor to investigate each accident
and rule as soon after the accident as possible, and
at St. Louis, and one at Orlando, were discharged for having preventable
accidents during 1976 and January 1977.
882
THE MARTIN-BROWER COMPANY
issue a warning letter to the drive in the case of a
preventable accident ruling. Obviously you do not want
a driver in a tractor after his second or third
preventable accident in a 12 month period, so a timely
ruling is needed.
The following Corporate guidelines have been
published previously:
One preventable accident in a 12 month period -
warning letter
Two preventable accidents in a 12 month period -
warning letter and three days off without pay.
Three preventable accidents in any 12 month period
- termination
Please send a copy of any warning letters to the Fleet
Administrator in Chicago.
. . . Here-to-for National Transportation has not
upset the centers' ruling in so far as the drivers record.
In the future, if National Transportation disagrees with
the centers' ruling, the National Safety Council Acci-
dent Report forms will be sent to the center for
completion by the driver. The N.S.C. report will then
be sent to the National Safety Council via Bob Coker
for the final and binding ruling, with the drivers' record
to be marked accordingly. A procedure change is
forthcoming. [Sic.]
Hock testified that Respondent officials, including
himself and Mohrhusen, reviewed the record and company
policy, including the Chicago office preventable ruling;
that the policy had been vague to him when the accident
occurred but on review he agreed with the Chicago ruling;
that he and Mohrhusen decided that "if we examined the
accident and the accident alone and nothing else, it would
have to be a preventable ruling"; and that they decided to
give Ingram a termination letter when he returned from a
run.
Mohrhusen testified that he is familiar with council
standards on preventability and the company definitions of
certain types of accidents; that he evaluates each accident
as to preventability while the insurance company deter-
mines liability; that the manual provides that a driver is not
charged if there was nothing he could "reasonably" do to
prevent the accident; and that it is his duty to investigate
thoroughly and to consider all the relevant factors.
Mohrhusen also testified that Hock delegated to him the
investigation of Ingram's third accident; that he had
Ingram's written and oral reports; that he did not inquire
as to damage as that would usurp the insurance company
authority; and that he did not know that there was no
company liability for the third accident, but it would have
had no effect on the determination as the company rule is
that preventability and liability are unrelated.
Mohrhusen testified that he reviewed the accident and
company policies with Dahlem and Hock and talked to
Coker, then recalled that he reviewed them himself at this
time but reached no decision until Hock reminded him,
about 3 weeks after the October 4 letter from Chicago, it
had to be decided. He testified, on cross-examination, that
in this 3-week interim he had "evaluated" and discussed
the accident and company policies with Coker, and
decided the accident was preventable under the manual
classifications of preventable accidents if a liberal interpre-
tation were given to category 10 which is entitled "Traffic
Lane Encroachments," but admitted there were no traffic
lanes on the open parking lot, that the factors set forth in
category 10 were inapplicable, that Coker did not agree
with this evaluation, and that Coker did not, in the October
4 letter finding the accident preventable or in discussions
with him, specify any of the listed categories. Mohrhusen,
who never drove a truck, also admitted that in his 3 weeks'
research he found no accident like the one in question.
Mohrhusen testified that, after this period of evaluation, he
reviewed the accident with Hock and Dahlem and they
decided it was preventable, that he then prepared a letter
disqualifying Ingram as a driver, and that he told Ingram
who was returning from a run to come to the office the next
day.
6. Ingram's discharge
On November 4 Ingram was on a run and called in about
a flat tire and a shifter that had become loose. Mohrhusen
told him where to get the repairs, and told him to come to
the office the next day.
When Ingram went to the office on November 5, almost
2 months after his third accident, Dahlem, Mohrhusen, and
Hock were there, and Mohrhusen gave him a letter of
dismissal. The letter, signed by Mohrhusen, states in part
that "A preventable accident is one in which the driver
failed to do everything he reasonably could have done to
prevent or avoid it. On the following occasions, your
judgement [sic] in this respect has been missing and each
accident has met with a preventable ruling." The letter lists
the accidents, commenting as to the second that it "went
unreported and revealed only after an inquiry by us," and
describing the third as "Collision with a second party's
automobile in a Pulaski, West Virginia motel parking lot."9
The letter concluded: "John, as you are well aware, three
preventable accidents in a seven month period, regardless
of severity, is a terminable offense. Therefore, as a
responsible company, sensitive to the miseries suffered by
others due to negligence by our personnel, we are
disqualifying you from driving for Martin Brower effective
immediately." The letter said nothing about availability of
other work during the disqualification as a driver.
Ingram testified that he read the letter and got up to
leave when Hock said he should sit down and talk about it
as Hock did not want him to leave on a bad note; that he
said some other drivers had had costlier accidents whereas
his first two accidents totaled $372 and he did not know the
cost of the third; and that he also pointed out Mohrhusen
had stated he would not be discharged for some minor
accidents, but Mohrhusen said he did not recall that.
Ingram also testified that he said that in his last accident
the car hit his truck, that the only damage was to the car
and none to the truck, and that, if he was discharged
because of it, there was another reason behind it, but Hock
said that there was no personal vendetta against him.
9 Ingram's report shows the accident location as "Pulaski, Va."
883
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ingram had been employed as a driver almost 2 years at
the time of his discharge.
Hock testified that when Ingram read the letter and got
up ready to storm out, he asked Ingram to come back and
talk, and said he was sorry and did not want to lose Ingram
who always did a fine job with customers. At a later point
he testified that he also told Ingram he had no other work
available, and that management had discussed keeping him
as a desirable employee but there was no available work.
He testified that he asked if Ingram preferred to resign and,
when Ingram agreed, Mohrhusen wrote that at the top of
the letter, but Mohrhusen told Hock the next day that
Ingram called and wanted it changed to a dismissal. Hock
testified that Ingram asked, a few days later, about a rumor
that he was terminated because he was suspected of theft,
but that, as he told Ingram, he had never questioned
Ingram's integrity, and Mohrhusen testified that no one
accused Ingram of stealing.
Mohrhusen testified that he told Ingram the letter was
"what our disposition was as a result of his three
accidents"; that Ingram questioned this disposition in view
of the minor nature of the accidents "and the method of
the decision," and argued there must be another reason;
that he gave Ingram an opportunity to resign; that Ingram
was to let him know and he wrote "resigned" on the letter,
he thought the next day; but that Ingram asked later to
appeal to the council and he gave Ingram the council forms
to fill out.
7. Events after the discharge
a. The safety committee
Kreps, a witness for the Respondent, testified that
Ingram was the first driver to lose his job on the ground of
three preventable accidents, and it "shook up" the other
drivers including the employee members of the safety
committee. He also testified that the committee, composed
of management and employee members, was supposed to
meet monthly, but in fact met very infrequently, and, when
it did, Mohrhusen or Hock described the accident and read
the accident report, and the committee voted.
Ingram testified that, although there had been no safety
committee meeting for 7 or 8 months, at the request of
some of the drivers he telephoned Mohrhusen on Novem-
ber 11 and asked to have the safety committee pass on his
third accident, and Mohrhusen promised to look into it.
Ingram testified that Mohrhusen also said he should come
in and fill out a National Safety Council report that would
be sent to Chicago to get a final and binding answer, and if
the third accident was found nonpreventable by the
council he would be taken back immediately. Ingram
testified this was the first time he was asked to make out
such a report. Ingram went in that day and made out the
report in longhand which was later typewritten by someone
else. Ingram testified that he had a conversation on this
visit with Hock in which Hock said there were some large
new accounts and "We hate to let you go at this time
because we need you." Later on the same day Ingram filed
the charge herein.
10 Neither Hock nor Mohrhusen ever worked as a truckdriver.
1 As pointed out above, the Respondent maintains that money liability
does not determine preventability.
A safety committee meeting was held on November 13.
Its minutes, prepared by Hock, show that those present
were Hock as chairman, and Mohrhusen, Dahlem, Kreps,
and Osborne as members, and that it considered Ingram's
third accident as well as accidents of two other drivers that
occurred on July 6 and 12. None of the three drivers was
present. 10
Kreps testified that the committee was at odds over what
happened; that they reenacted the accident two or three
times on the parking lot, which was flat, to determine the
visibility of the car; that he knew the accident occurred on
a steep slope as he had stopped at the same motel but
thought there was no committee discussion as to the effect
thereof on visibility; that Hock drove his car and Osborne
drove a truck, while he and Mohrhusen stayed on the
ground; that he did not check with Ingram, with the other
driver, or with the policeman who was at the scene, and did
not even know the police were called; and that he voted the
accident was preventable. The committee found, by a vote
of 3-1, that the accident was preventable "(Assuming front
of rig hit)," with the word "Verified" followed by a line that
was blank. Ingram heard of this result from Osborne.
Hock testified that the safety committee meeting of
November 13 was held at the request of Ingram and other
drivers; that he did not vote but prepared the committee
minutes; that in the reenactment to check visibility he
drove his car, Mohrhusen sat with Osborne who drove the
tractor, and Kreps watched; that they repeated the test
four or five times with the car at different distances from
the trailer; and that the committee also reviewed Ingram's
original report and the one prepared for the council. He
testified that the note "Assuming front of rig hit" was
affirmed later by Ingram's diagram in the council report.
Hock also testified that it was the policy to review all the
facts as to an accident particularly the third, and Ingram
was "Driver-of-the-Year" and a valuable man. He admit-
ted, however, on cross-examination, that he did not know if
anyone talked to the police or the other driver, or checked
the money damages, if any; i" that the safety committee
review was futile in any event as the Respondent would not
have changed the Ingram discharge whatever the vote was;
and that its purpose was, not to determine if the accident
was preventable, but only to show other drivers how a
preventable determination is made and to let Ingram know
how the committee would have ruled.
Mohrhusen testified as to the safety committee review,
on cross-examination, that Ingram requested a review by
his peers; that "I told Mr. Ingram that at that point, as far
as I was concerned, that my ruling on preventability stood,
and that we would reengage in another review by his peers
and that we would reconsider"; and that, as the committee
is made up of management and employee personnel, he
considered that he and Hock were Ingram's peers. As to
the reenactment, he testified that he and Kreps observed it
done four or five times, that Hock drove his car and
Osborne drove the tractor, that he got in the tractor as a
passenger to test the situation, that in the reenactment the
car was at times out of view, that the vote was 3-1 with
Osborne voting the accident nonpreventable, and that he
884
THE MARTIN-BROWER COMPANY
did not for this review communicate with the policeman or
the other driver involved. He also testified that no
consideration was given to the fact that the test was on
level ground while the accident occurred on a steep incline.
b. The National Safety Council
Ingram called Mohrhusen on November 22 and asked
about an answer from the council. He testified that
Mohrhusen said the answer made no difference as
Mohrhusen and Hock then had it as a matter of record that
he was terminated for three accidents. The Respondent did
not send the National Safety Council "Report of Opinion
of Accident Review Committee," dated December 1, to
Ingram, but furnished a copy to the General Counsel. It
states as to the accident of September 12 the "opinion" that
it was "preventable" and the "remarks: Because of the
professional driver's failure to make frequent mirror checks
he was unaware of the other vehicle and thus couldn't
anticipate improper driving behavior. Furthermore, park-
ing lots require additional caution because of the often
confused, haphazard driving behavior of others." 12
Hock admitted that he did not know how the National
Safety Council operates or if any drivers participate in its
determinations. Mohrhusen testified that he is familiar
with Council standards on preventability as well as the
company definitions of certain types of accidents based
thereon.
c. The insurance company
Ingram inquired of the insurance company as to any
claim paid on the accident. He was notified by letter of
March 22, 1977, that the insurance company made an
investigation that included a report from the policeman
who was called to the accident, and that he "substantiated
your statement and advised would have been almost
impossible for you to have avoided this accident as Mr.
Teitsworth had improperly passed you on the right.
Advised Mr. Teitsworth had plenty of room to both the left
and the right of you to pass, but he failed to do so. Rather
he passed to your immediate right.... We denied Mr.
Teitsworth's claim for damages as feel he contributed to
this accident by improperly passing you on the right."
d. Availability of other employment
The Respondent's evidence in some instances indicates
that a driver with three preventable accidents in 12 months
is terminated, and in others that he is disqualified from
driving for a year but may be assigned to other work.
William Waters, who was employed first as a warehouse-
man, was given an opportunity to drive at his request. He
had two preventable accidents during his probationary
period, and was put back in the warehouse. A few weeks
later drivers were needed and he was given another chance.
He had a third accident. Although it was minor he was put
back in the warehouse.1 3 He was a warehouse supervisor at
the time of the hearing herein.
I: Ingram's report of the accident states that "The mirrors were checked
before making my turn...."
Ingram testified that the Respondent's drivers under-
stood that those who had accidents would be put to work
in the warehouse for a time as the Respondent had spent so
much to train them, that there was at this time a good deal
of overtime work in the warehouse; that the Respondent's
new accounts would increase the warehouse work; and
that, as the Respondent knew, he had considerable
experience in warehouse work. A number of new drivers
were hired shortly after Ingram was terminated, and
additional drivers as well as several warehousemen were
hired in the next few months. Ingram was never offered
anotherjob with the Respondent.
8. Accidents of other drivers
Jones, the former transportation supervisor, testified that
in that position he had received many calls about minor
driving incidents.
Griglek testified that he tore down some wires on the
street in or about February, and tore down more wires later
that evening; that he telephoned and was told by Davis, the
dispatcher then, not to worry about it; that he was never
asked to turn in a written report and never did so; and that
no one ever told him if it was preventable or ever
mentioned it again. Griglek, a member of the safety
committee, testified also that Spivey pulled down wires
causing damage of $3000; that he said it should be ruled
preventable to be consistent but the Respondent ruled it
was nonpreventable; and that the Chicago office reversed
that months later, after Ingram was discharged.
Osborne testified that he had an accident in May 1975
when he backed into a car belonging to the manager of the
delivery unit; that he had another accident in July 1976
when he ran into a car on his right; that he had heard
nothing for about 2 months after turning in his report on
this accident and, when he asked about it, was told by
Mohrhusen it was nonpreventable; that when the driver of
the car sued him and the Respondent, Hock promised to
take care of it, but he hired a lawyer to represent him
because the Respondent, which was to take care of the first
accident, had not done so a year later; that Hock and
Mohrhusen said he jumped the gun in hiring a lawyer; and
that Hock also said if the Respondent found the third
nonpreventable but Chicago reversed and said the driver
should be discharged, he, Hock, had the final say. The
safety committee that passed on Ingram's third accident
found Osborne's July accident preventable by a vote of 3-
1.
Wicker testified that he had two accidents. The first, in
Detroit where he rammed into a car on his right, occurred
in February or early March, during his 60-day probation-
ary period. He testified that he was told by Bryan to fill out
a report on his return and did so, and that he was never
reprimanded for it nor told whether it was preventable.
Wicker testified that in his second, in Detroit in or about
July, he tore down some wires; that he did not call in as it
was a Saturday but told Mohrhusen when he returned that
he tore down a set of wires; that Mohrhusen told him to fill
out a report, but he did not do so because he had
'3 Hock estimated the damages for Ingram's three accidents as $500. and
for Waters' three accidents as upwards of $2,000.
885
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
previously been through the alley where the wires were torn
down but the unit he was driving in July was higher, and he
therefore felt this accident was not his fault; that Mohrhu-
sen told him again about a week later to fill out a report,
and he said he would but did not; that Mohrhusen said a
week or so later the report was needed; that when he
explained why he was not at fault, Mohrhusen said the
report was needed only to give to the insurance company
that would cover the damage to the trailer; that he never
did fill one out; and that he was never told if the accident
was preventable, and was never reprimanded for failing to
fill out the report or suspended for having a second
accident.
Spivey testified, as a witness for the Respondent, that he
had one accident in 1975 when he pulled wires loose from a
shop; that he did not know what it cost but assumed the
Respondent paid for it; that it was ruled nonpreventable
and he expected a safety award for 1975; and that, when he
did not receive one, he inquired a few times before he
learned from Mohrhusen, months later, that the Chicago
office changed the ruling.
Concluding Findings
It was admitted that Ingram, the first driver terminated
on the basis of three accidents in the almost 2 years the
Columbus center was in operation, had been considered by
the Respondent to be an exceptionally well qualified
employee with regard to his driving ability and customer
relations, as set forth in his "Driver-of-the-Year" award for
1975 and in testimony of Hock and Mohrhusen. The
grounds advanced for his termination were that he had
three preventable accidents in less than a year, that this
disqualified him as a driver, and that there was no other
work available for him.
The record shows, however, and I find, that the
Respondent did not follow company policies and proce-
dures as to Ingram or other drivers, and that the Chicago
office did not follow its established review procedures as to
Ingram. The Respondent admittedly did not promptly
determine preventability and notify the driver, send the
driver a warning letter after a first preventable accident, or
issue a warning letter and a 3-day suspension for a second
preventable accident. In at least one instance a driver who
had pulled down overhead wires never submitted a report.
Further, I find, as Ingram testified and Mohrhusen could
not recall, that Mohrhusen told Ingram he would not
terminate him for minor accidents in view of what it cost to
train a driver. The evidence also shows, and I find, that
determinations as to preventability are made by the center
and reviewed by Chicago on appeal by the driver. The
indication in the communication from the Chicago office
dated October 13, a month after Ingram's third accident,
that National Transportation will upset rulings of a center
with which it disagrees also states that "A procedure
change is forthcoming." There is no evidence of the
issuance of such change. Hock and Mohrhusen found
Ingram's third accident nonpreventable, and Ingram
continued to drive the Respondent's trucks. The reversal
by the Chicago office, and the reviews by Hock and
Mohrhusen, were based on erroneous facts including, for
example, that Ingram failed to report his first or second
accident, and that Ingram was at fault in his third accident
in failing to check his mirrors. There were also differences
of opinion as to the basis of the reversal, Mohrhusen
relying on an accident category not in fact applicable, and
Coker disagreeing as to this category but not specifying
any other of the 20 listed categories.
The safety committee review of the third accident
involved no inquiry of the other driver, of the policeman
called to the scene, or of company liability; the safety
committee's reenactment to determine visibility of the car
was performed on a flat parking lot whereas the accident
occurred on a steep slope; and the committee review was a
sham in any event as the Respondent admittedly would not
have changed its decision to terminate Ingram whatever
the committee found. The council decision was based on a
finding of "failure to make frequent mirror checks," with
no indication as to how frequent or infrequent the council
found them, nor on what this finding was based. Finally,
the record shows that nondriving work was available after
Ingram was terminated, that it was company policy to offer
such work to a driver who was disqualified from driving,
but that there was no offer of such work to Ingram.
As found above, the Respondent was opposed to
organization of employees at its Columbus operation. The
evidence shows that Hock and Mohrhusen were aware of
the early organizing activities but were of the opinion, as
were many of the drivers, that Ingram was loyal to
management and unsympathetic to union organization.
Hock and Mohrhusen learned, however, that Ingram had
become interested in organizing the Union. Mohrhusen
testified about Ingram's changed attitude and their less
cordial relations, and Hock admitted questioning Ingram
in the office because Mohrhusen had said Ingram was
"upset" and this upset him. Hock admitted that in this
conversation, which he said occurred in late August, they
discussed work problems, which Hock said should be taken
up through the supervisory chain; that Ingram said some
employees were going to the union hall and he was
thinking of going also; and that Hock told Ingram he did
not believe the Union would solve his problems. I therefore
do not credit Hock's testimony that he did not think
Ingram was prounion and that Ingram did not do or say
anything to show he was prounion. In September Mohrhu-
sen asked Ingram how he felt at that time about the Union.
And during October, representatives of the Union's local
negotiating a contract at the distribution center in
Louisville told the company representatives including
Whitney, Hock's superior, of the plan to organize the
Columbus operation.
I find, based upon the evidence in its entirety, that
Mohrhusen told Ingram the Respondent would not
terminate him for minor accidents, that Ingram was given
no written warning or suspension for the first two
accidents, and that the Respondent first ruled the third
nonpreventable. Hock and Mohrhusen learned, however,
that Ingram had become interested in union organization
as he admitted to them, and evidently resented this change
in allegiance on the part of an employee who was
theretofore believed to be loyal to management and
unsympathetic to a union. Moreover, it was his complaint
about meal rates that resulted in an increase.
886
THE MARTIN-BROWER COMPANY
The Respondent found Ingram's third accident of
September 16 nonpreventable, Chicago on October 4
changed the ruling to preventable, the Respondent adopted
this reversal as its ruling and terminated Ingram on
November 5, and thereafter made gestures of reviewing this
ruling with no intent to change its decision to terminate
Ingram. The Respondent terminated Ingram on the
asserted ground of established company policies as to
accidents, policies which were never formally communicat-
ed to employees,' 4 and which had admittedly been almost
wholly disregarded at Columbus.' 5 Without derogating
from the Respondent's unquestioned right to adopt and
apply its own rules as to accident preventability, and to
terminate drivers on the basis of such rules, I am
convinced, and find, that the Respondent in the present
circumstances would not have terminated Ingram, an
admittedly excellent employee,' 6 because of his accidents
were it not for its resentment of his switch to prounion
sympathy. I find that the discharge was therefore discrimi-
natory.' 7 While the Respondent argues that other employ-
ees known to be prounion were not discharged, it is not
necessary that all prounion employees be discharged to
establish the discriminatory nature of Ingram's discharge-.'
I find, on the entire record, that the Respondent
terminated Ingram because of his expressed desire for
union organization and to discourage membership in and
activities on behalf of the Union, and that the asserted
cause for discharge, three preventable accidents within 12
months, was, in view of the disregard of established
company policies and procedures as to preventable
accidents, pretextual.' 9 Accordingly, I find, in conclusion,
that the Respondent terminated Ingram on November 5,
and failed and refused at all times thereafter to reinstate
him, because of his membership in and activities on behalf
of the Union and in order to discourage membership in the
Union, and has thereby discriminated in regard to the hire
and tenure of employment of its employees, in violation of
Section 8(a)(3) and (I) of the Act.20
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section 1, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
14 Ajax Magnethermic Corporation, 227 NLRB 477 (1976)}.
IS The Terminal Taxi Company d/bra Yellow Cab Co., 229 NLRB 643
(1977); Mission Petroleum Carriers. Inc., 229 NLRB 1276 (1977); Melody
Oldsmobile-GMC, Inc., 230 NLRB 440 (1977).
16 Montgomery Ward & Co., Incorporated, 220 NLRB 373, 391 (1975),
enfd. 554 F.2d 996 (C.A. 10, 1977); Eubank Tire Sales, Inc., 226 NLRB 1103
(1976); The Terminal Taxi Company d/b/a Yellow Cab Co., supra.
17 Eubank Tire Sales, Inc., supra; Viele & Sons, Inc., 227 NLRB 1940
(1977); The Terminal Taxi Company d/b a Yellow Cab Co., supra.
'a Melody Oldsmobile-GMC, Inc., supra.
19 Eubank Tire Sales, Inc., supra; Ajax Magnethermic Corporation, supra;
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices in violation of Section 8(a)( 1)
and (3) of the Act, I shall recommend that the Respondent
be ordered to cease and desist therefrom and from in any
other manner infringing upon its employees' Section 7
rights,2 ' and that it take certain affirmative action designed
to effectuate the policies of the Act.
I have found that the Respondent discharged Earnest J.
Ingram on November 5, 1976, in violation of Section
8(a)(3) and (1) of the Act. Accordingly, I shall recommend
that the Respondent be ordered to offer Ingram reinstate-
ment to his former job, or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and to make him
whole for any loss of pay he may have suffered as a result
of the discrimination against him, with backpay computed
on a quarterly basis, plus interest at 6 percent per annum,
as prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, The Martin-Brower Company, is
an employer as defined in Section 2(2) of the Act, engaged
in commerce and in operations affecting commerce as
defined in Section 2(6) and (7) of the Act.
2. Teamsters Union Local 413, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor
organization as defined in Section 2(5) of the Act.
3. By terminating Earnest J. Ingram on November 5,
1976, and at all times thereafter failing and refusing to
reinstate him, because of his membership in and activities
on behalf of, and to discourage membership in, the above-
named Union, the Respondent has discriminated in regard
to the hire and tenure of employment of its employees, in
violation of Section 8(aX3) and (1) of the Act.
4. By interrogating employees concerning their activi-
ties on behalf of and sympathy for the above-named
Union, by threatening employees with loss of employment
benefits and closing of the Columbus operation if they
designate the above-named Union as their collective-
bargaining representative, and by creating the impression
that it was keeping their union activities under surveillance,
the Respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights
Viele & Sons, Inc., supra; Mission Petroleum Carriers, Inc., supra. Melody
Oldsmobile-GMC, Inc., supra; B d P Motor Express, Inc., 230 NLRB 653
(1977).
20 N.LR.B. v. Sencore, Inc., 558 F.2d 433 (C.A. 8. 1977); Midwest
Regional Joint Board A malgamated Clothing Workers of America, A FL-CIO
v. N. LR.B., 564 F.2d 434 (C.A.D.C.. 1977); The Terminal Taxi Company
d/b/a Yellow Cab Co., supra, Melody Oldsmobile-GMC, Inc.. supra.
Edgewood Nursing Center, Inc., 230 NLRB 886 (1977).
2i N.LR.B. v. Express Publishing Company, 312 U.S. 426, 437 (1941);
N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4. 1941); Bob Henry
Dodge, Inc., 203 NLRB 78 (1973).
887
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guaranteed by Section 7 of the Act, in violation of Section
8(a)(l) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting 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:
ORDER 22
The Respondent, The Martin-Brower Company, Colum-
bus, Ohio, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Terminating or otherwise discriminating against any
employees in regard to their hire or tenure of employment
because of membership in or activities on behalf of, or to
discourage membership in, Teamsters Union Local 413,
affiliated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or
any other labor organization.
(b) Interrogating employees concerning their activities
on behalf of and sympathy for the above-named Union,
threatening employees with loss of employment benefits or
closing of the Columbus operation if they designate the
above-named Union as their collective-bargaining repre-
sentative, creating the impression that it is keeping their
union activities under surveillance, or in any other manner
interfering with, restraining, or coercing its employees in
the exercise of the rights guaranteed by Section 7 of the
Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer to Earnest J. Ingram immediate and full
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 and privileges.
(b) Make Earnest J. Ingram whole for any loss of pay he
may have suffered as a result of the discrimination against
him, in the manner set forth in the section of this Decision
entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amounts of backpay due under the
terms of this recommended Order.
(d) Post at its premises in Columbus, Ohio, copies of the
attached notice marked "Appendix." 23 Copies of the
notice, on forms provided by the Regional Director for
Region 9, after being duly signed by the Respondent's
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
22 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
23 In the event that the Board's Order is enforced by a Judgment of a
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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT terminate or otherwise discriminate
against employees in regard to hire or tenure of
employment because of membership in or activities on
behalf of, or to discourage membership in, Teamsters
Union Local 413, Affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organiza-
tion.
WE WILL NOT interrogate employees concerning their
activities on behalf of and sympathy for the above-
named union, threaten employees with loss of employ-
ment benefits or closing of the Columbus operation if
they designate the above-named union as their collec-
tive-bargaining representative, create the impression
that we are keeping their union activities under
surveillance, or in any other manner interfere with,
restrain, or coerce employees in the exercise of the
rights guaranteed by Section 7 of the National Labor
Relations Act.
WE WILL offer Earnest J. Ingram immediate and full
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 and privileges,
and WE WILL make him whole for any loss of pay he
may have suffered as a result of the discrimination
against him.
THE MARTIN-BROWER
COMPANY
888