Midstate Hauling Co., Inc.

National Labor Relations Board - Board Decisions

Jan 5, 1961

129 N.L.R.B. 1150 (N.L.R.B. 1961)

1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in Hotel and Club Employees Union,
Local 6, Hotel :and Restaurant Employees and Bartenders International Union,
AFL-CIO, or any other labor organization of our employees , by discharging or
otherwise discriminating against any employee in regard to his hire, tenure of
employment , or any term or condition of employment , except as authorized in
Section 8 ( a)(3) of the Act , as amended.
WE WILL NOT threaten employees with reprisal if they engage in activity on
behalf of the aforesaid Union, or any other labor organization.
WE WILL NOT prevent employees from attending union meetings by requiring
employees who otherwise would be free to do so to attend , instead , meetings
deliberately and for that purpose called by us for the same time.
WE WILL NOT promise or grant economic benefits to our employees at the
time of any union-organizing campaign where the purpose thereof is to induce
employees to refrain from , or abandon , union membership.
WE WILL NOT interrogate employees concerning their union views, member-
ship, or activities, in a manner constituting interference , restraint, or coercion
within the meaning of Section 8 (a) (1) of the Act.
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 organi-
zations, to join the aforesaid labor organization , or any other labor organization,
to bargain collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any and all such activities , except
to the extent that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
WE WILL offer Steven Lizaso, Stanley Korman , and Rene Giro immediate and
full reinstatement to their former or substantially similar positions without
prejudice to their seniority and other rights and privileges and make them whole
for any loss of pay suffered as a result of the discrimination against them.
All our employees are free to become , remain, or refrain from becoming or re-
maining, members of any labor organization , except as that right may be affected by
an agreement requiring membership .in a labor organization as a condition of employ-
ment , as authorized in Section 8(a)(3) of the Act. We will not discriminate in
regard to the hire or tenure of employment or any term or condition of employment
against any employee because of membership in or activity on behalf of any labor
organization.
TRAVELERS HOTEL, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
Dated------------------- -------------------------------------------
(HAROLD L. FROM%IN)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced, or covered by any other material.
Midstate Hauling Co ., Inc. and William F. Howell and Harold
R. Holderbaum . Cases Nos. 12-CA-900 and 12-CA-905. Janu-
ary 5, 1961
DECISION AND ORDER
On May 20, 1960, Trial Examiner Phil Saunders issued his Inter-
mediate Report in the above-entitled proceeding, finding that 112idstate
Hauling Co., Inc., hereinafter called Respondent, had engaged in
and was engaging in certain unfair labor practices and recommending
that it cease and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached hereto.
129 NLRB No. 140.
MIDSTATE HAULING CO., INC. 1151
The Trial Examiner also found that the Respondent had not engaged
in certain other unfair labor practices alleged in the complaint, and
recommended that these allegations be dismissed. Thereafter Re-
spondent and the General Counsel filed exceptions to the Intermediate
Report and supporting briefs.'
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Jenkins, and Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and briefs, and the entire record herein, and
adopts the Trial Examiner's factual findings to the extent that they
are consistent with this Decision. For the reasons stated below, we
find merit in the Respondent's exceptions.
1. The complaint alleged, and the Trial Examiner found, that Re-
spondent had violated Section 8(a) (3) of the Act by discharging
employee Holderbaum. We do not agree.
In the first place, we disagree with the Trial Examiner's conclusion
that, at the time it discharged Holderbaum, Respondent had knowl-
edge of his union activity. In concluding that Respondent had such
knowledge, the Trial Examiner said :
I find that the Respondent had knowledge of Holderbaum's union
activities on the basis of the credited testimony of Jack Caldwell,
wherein General Manager Hallowell had openly stated to Cald-
well that he knew Holderbaum was "hooked" up with the Union,
and which statement was in no way denied even by the testimony
of Hallowell himself.
There is no dispute that Hallowell made the above statement to
Caldwell and that he did not deny making it. However, the Trial
Examiner failed to note that the statement was made to Caldwell,
after the discharge of Holderbaum and after Holderbaum at the time
of his discharge had openly informed Respondent that he was en-
gaged in union activity. Nor does the Trial Examiner mention the
rest of the conversation between Caldwell and Hallowell, as Caldwell
also testified that Hallowell told him that Holderbaum's discharge
had been because of truck breakdowns.
We therefore reject this statement of Hallowell, made after the
discharge and after Holderbaum had informed Respondent of his
union activity at the time of his discharge, as probative of Respond-
ent's knowledge of such activity before Holderbaum's discharge.
1 Respondent also filed a motion to quash the exceptions and brief of the General Counsel
on the basis of nonconformity with the provisions of Section 102.46 of the Board's Rules
and Regulations , Series 8. In view of our disposition of the case on the merits, we find
it unnecessary to pass on the motion
1 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, in the absence of any other probative evidence show-
ing that the Respondent knew of Holderbaum's union activity before
his discharge, we conclude that the General Counsel did not maintain
the burden of proof in this respect.
In the second place, we disagree with the Trial Examiner's conclu-
sion that the facts show the reason Respondent assigned for the
discharge was in fact a pretext, and that the real reason was Holder-
baum's union activity.
As found by the Trial Examiner, Holderbaum was hired in Janu-
ary 1959 and was discharged on February 23, 1959. As an allegedly
experienced tractor driver, he was assigned to drive one of two new
International Harvester tractor trucks. He had two truck break-
downs while on the road, on January 23 and February 12, 1959. In
each instance the collar and sleeve on the fifth gear transmission was
broken. Such a break may be caused by one of two factors; either
the part might be defective or the driver might be "lugging" the
truck, that is, driving it too fast or too slow for the gear in which it
is engaged. On the first occasion, Respondent attributed the break
to a defective part; but Holderbaum was cautioned to be careful in
operating the truck. When the second breakdown occurred, Respond-
ent had the broken part examined by International Harvester and,
on obtaining Harvester's opinion that the part was not defective
and that the break was caused by lugging, Respondent discharged
Holderbaum.
In finding a pretext discharge, the Trial Examiner relied, in great
part, on the fact that Respondent required 11 days, from February 12
to 23, to determine whether Holderbaum had improperly operated
the truck. The Trial Examiner also noted that, coincidentally, in the
same approximate period, union activities had been initiated. Not
adverted to by the Trial Examiner however, is Respondent's reason
and explanation for the 11-day delay in question. In this connection,
Ritten, Respondent's superintendent of truck maintenance, testified
without contradiction as follows. Respondent's plants are at Jack-
sonville and Orlando, Florida. Ritten's headquarters are at Jackson-
ville, but Ritten spends 3 days a week at Orlando, where Holderbaum
worked. On February 12, the day of the second breakdown, Ritten
had been at Orlando. At 10 p.m., on his return to Jacksonville,
Ritten received a telephone call from Morton, Respondent's mechanic
at Orlando, advising him of the second breakdown. Ritten immedi-
ately told Morton that the driver "had to go," ordering the mechanic
to keep the broken parts for Ritten's inspection the following week
upon his return, in the usual course of his duties, to Orlando. On
February 17, Ritten in fact returned to Orlando and, after inspecting
the broken parts, determined that they were not defective. Ritten
then conferred with Hallowell, Respondent's general manager, and
MIDSTATE HAULING CO., INC. 1153
discussed discharging Holderbaum. At this conference it was agreed
that Holderbaum would be fired if International Harvester confirmed
Ritten's opinion about the parts. On Friday, February 20, Ritten
returned to Jacksonville and had the parts examined by Harvester.
Harvester, after examination of the parts, confirmed the fact that the
parts were not defective and attributed the break to the driver's
lugging of the truck. Ritten, that evening, called Hallowell at his
home in Jacksonville, and, as a result, Hallowell instructed Foreman
Earwood to discharge Holderbaum. As Holderbaum was not sched-
uled to work on Saturday, February 21, Earwood called him at his
home on Monday morning, February 23, to inform him of the
discharge.2
We therefore find, on the record as a whole, that Holderbaum was
discharged for cause, arising out of his negligent operation of Re-
spondent's equipment, and we shall dismiss the complaint in this
respect.
2. The Trial Examiner found that Respondent violated Section
8 (a) (1) of the Act by three instances of interrogation of employees
as to union activities. We do not agree.
(1) The Trial Examiner found that Foreman Earwood interro-
gated employee Jack Caldwell as to whether he was involved in the
Union, if he had signed a card, and if employee Conrath was also
involved in the Union. This finding of the Trial Examiner is ap-
parently based upon the testimony given by Caldwell, a General
Counsel witness, on direct examination. However, the record shows
that Caldwell unequivocally testified on cross-examination that Ear-
wood had never asked him whether he had signed a union card or
whether others had. Consequently we find Caldwell's testimony as
to the alleged interrogation of no probative value.
(2) The Trial Examiner found that Foreman Earwood unlawfully
interrogated employee Milton. This finding was based on Milton's
testimony that sometime in early February, before the commence-
ment of union activity at the plant, Earwood had asked him if anyone
had been talking to him about the "union." Milton did not identify
the Union. In this connection, Earwood testified that early in Feb-
ruary there had been union picketing of the plant of another company
where Respondent's trucks were picking up stone for road construc-
tion. Earwood testified further that his questions to Milton concerned
the picketing of this plant and whether Respondent's trucks could
2 It is pertinent to note that Holderbaum knew an February 12 that the second break-
down might subject him to company action On that date, he had been accused by
Respondent's mechanic of causing the breakdown by lugging the truck. On February 13,
as found by the Trial Examiner, Holderbaum initiated union activity at Respondent's
plant by writing a letter to the Union, requesting that a representative contact him.
In this letter Holderbaum stated that he "would probably be fired before he got to see
the union."
586439-61-vol. 12 9- 7 4
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cross the picket line. Earwood's testimony that he was concerned
with the effect of such picketing is corroborated by Caldwell. Under
these circumstances, and in view of the fact that union activity did
not start at Respondent's plant until some time subsequent to Ear-
wood's conversation with Milton, we find Earwood's questioning of
Milton did not relate to any union activity at the Respondent's plant
and, in the context in which it occurred, was not coercive 3
(3) The Trial Examiner found that General Manager Hallowell
had unlawfully asked Caldwell who else was "hooked up" in the
union besides Holderbaum. Though Caldwell so testified on direct
examination, on cross-examination he testified that Hallowell had
never so questioned him, and that, in fact, Hallowell "had never men-
tioned the union" to him, at any time. In view of this obvious incon-
sistency in Caldwell's testimony, we cannot predicate any finding
thereon.
We therefore find that Respondent did not unlawfully interrogate
its employees in violation of Section 8 (a) (1) of the Act.
We therefore find, on the entire record herein, that Respondent did
not violate the Act and shall dismiss the complaint herein.
[The Board dismissed the complaint.]
' Blue Flash Express, Inc., 109 NLRB 591.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding , with all parties represented , was heard before the duly designated
Trial Examiner in Orlando and Jacksonville, Florida, on September 28-30, 1959, and
January 18-19, 1960, on a consolidated and amended complaint of the General
Counsel, ' and answer of Midstate Hauling Co., Inc., herein called the Respondent
or the Company. The issues litigated were whether or not the Respondent violated
Section 8 ( a)(1) and ( 3) of the Act. All parties were afforded full opportunity to
be heard, to examine and cross -examine witnesses , and to introduce evidence
pertinent to the issues. Both parties presented excellent oral arguments , and the
Respondent also filed a brief which have all been duly considered herein.
Upon the entire record, and from my observations of the witnesses , I hereby make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Florida corporation with offices and principal place of business
in Orlando , Florida, where it is engaged as a common carrier in the hauling of
sand, gravel , and aggregates to various employers. The parties stipulated that the
gross amount received by the Respondent from Hubbard Construction Company
for haulage , during 1958 , exceeded $50,000; and that the Hubbard company, in
turn, during 1958, completed work totalling approximately $ 375,000 for the Orlando
Air Force Base and the Sanford Naval Air Base The parties also stipulated, "That
Midstate Hauling Co ., Inc., during 1958, purchased materials , supplies, fuel and
replacement parts in an amount in excess of $50 , 000.00, and the amount expended
for such materials , supplies, fuel and replacement parts which originated from
'The initial consolidated complaint set forth as Charging Parties Fred A Wilkerson
and Marvin R Wisell Upon requests from the above Charging Parties the General
Counsel moved to withdraw all allegations of the complaint as to Wilkerson and Wicell,
in Cases Nos. 12-CA-1003 and 12-CA-1004, respectively, and the motion was so granted.
MIDSTATE HAULING CO., INC. 1155
outside the State of Florida during 1958 exceeded $50,000.00, although such ma-
terials, supplies , fuel and replacement parts were not shipped directly to Respondent
from outside the State of Florida."
I find that the Respondent is engaged in commerce within the meaning of the Act,
and that it will effectuate the policies of the Act to exercise jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Truck Drivers , Warehousemen & Helpers Local Union # 512, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen & Helpers of America , herein
called the Union , is a labor organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues and events
The main issues to be resolved are whether or not: (1) certain of the Respondent's
supervisory force engaged in specific conduct constituting interference, restraint, and
coercion of employees; and (2) whether or not the Respondent discriminatorily dis-
charged Harold R. Holderbaum. The complaint, as amended, alleges, and the
answer denies, that the Respondent interrogated employees concerning their union
activities and membership, threatened economic reprisal, warned its employees
against union membership, and discharged employee Holderbaum for his union
activities. There is no 8(a) (3) contention as to William F. Howell, and Howell only
remains a Charging Party in this proceding insofar as the 8(a)(1) allegations are
concerned. The Respondent contends that Holderbaum was discharged for cause,
and that the 8(a)(1) allegations were within the realm of free speech, or at the
most were mere isolated remarks which cannot be construed as coercive.
The record reveals that Holderbaum was initially employed by the Company as a
truckdriver in January 1959, and that he was discharged on February 23, 1959.2
The controversy as to Holderbaum involved two breakdowns while he was driving
Respondent's truck number 36. It was established that the Company purchased two
International Harvester trucks in December 1958 with overdrive fifth gear trans-
missions, that the Company had fully discussed the features of such transmissions
and had been told by the International Harvester dealer that for the particular haul-
ing operations involved they might have trouble with the overdrive functioning on
this type of transmission. It was also established that truck number 36, driven by
Holderbaum, was one of the new International Harvesters, and that the two break-
downs involved herein occurred on or about January 22 and February 12.
B. The testimony
Ho]derbaum testified that he had 14 years' experience in driving all types of trucks,
and that Respondent's truck number 36 was driven on a 24-hour basis by himself
and Richard Caldwell. Holderbaum credibly testified that the Company had an
incentive mileage plan wherein the drivers with the most miles for a 30-day period
would be given extra compensation , and that in his last 30 days truck number 36
had achieved high mileage. As to union activity, Holderbaum stated that he and
William Howell started talking to several of the company drivers about the Union
during the second week in February, and on February 17, after writing for informa-
tion, met with a union representative and at that time also signed an authorization
card as, did Howell and J. Conrath, but did not solicit other drivers of the Company
until after his discharge. Holderbaum further testified that on the night of February
21, he along with William Howell, Richard Caldwell, and Jack Caldwell, discussed
the Union, and that Richard Caldwell, his fellow driver on truck number 36, "was
very much against it."
As to the two breakdowns on truck number 36 involved herein, Holderbaum
testified that on January 22 and 23 he was driving the truck to Brooksville to load
up and was in overdrive and then shifted into "direct fourth gear," and, when
approaching a stop sign, "pushed it into third gear and the transmission just froze
up " Holderbaum stated that there was no warning or noise to indicate any trouble,
and that a few days afterwards he talked to Supervisor J. W. Earwood and asked
him if he thought it was his fault, and that Earwood had replied, "No it was just
a faulty bearing." The second breakdown occurred on February 12, and according
to Holderbaum the truck at the time was in third gear when he pushed the clutch in
while coming to a stop sign, and the transmission again froze. Holderbaum
2 All dates are 1959 unless specified otherwise
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that on February 23 he received a call from Supervisor Earwood , and was
then informed of his discharge as it had been determined by the company mechanics
that the transmission trouble was Holderbaum 's fault. Holderbaum testified that
he then told harwood, "You know it is through the Union that this is all about."
Holderbaum also stated that later the same day he again had a conversation with
Supervisor Earwood , and told Earwood that he did not believe the transmission
trouble was the reason for his discharge , and that Earwood replied , "Maybe not,"
and Earwood also told Holderbaum that he would not go with the Union, and that
if he signed "every card that came up they would go out of business." Holderbaum
testified that he knew he would be discharged because William Howell had been
fired earlier in the morning , and also stated that he had never received any warnings
or reprimands.
Joe Milton, a former employee of the Company, testified that during the second
week in February Holderbaum and Howell talked to him about the Union . Milton
also stated that during the first week in February he had a discussion with Earwood,
and that Earwood had inquired if anyone had been talking about the Union to him,
and that "he just wondered."
Jack Caldwell testified that during the first part of February, Howell and Holder-
baum talked to him about the Union, and that at this time there were about 18
truckdrivers working for the Company at Orlando. Caldwell also testified that on
February 19 or 20, he had a conversation with Earwood and stated, "We was dis-
cussing the Union and the way it moved into the outfit and in a roundabout way
he got around to asking me if I was involved in it." Caldwell further testified that
another employee then walked by, and that Earwood remarked "he wouldn't doubt
but that he was involved in it too," and also inquired of Caldwell if he had signed
a card. Caldwell testified that this conversation was "in a laughing manner," and
that Earwood had also made a reference to labor trouble at the Florida Crushed
Stone Company, and that they had discussed the picket lines which had been estab-
lished there. After the discharge of Holderbaum, Caldwell related a conversation
with the Respondent's General Manager Hallowell to the effect that Holderbaum
had been discharged because of the transmission trouble, and that he was "definitely
not" discharged for union activity, and in furtherance of the discussion Hallowell
made remarks as to difficulties in making his house payments in event of a strike,
and if such happened he would have to drive a truck himself along with the others
not involved in the Union. Caldwell testified that Hallowell also told him that he
knew Holderbaum and Howell "were hooked up in it," and then inquired as to "who
else is hooked up in it?" Caldwell testified that everyone knew that Holderbaum
and Howell were the union "ringleaders," and that "we all knew about it around
the first week" in February, and stated further that everybody knew the Company
was antagonistic toward a union.
Albert Woodham testified that there were union discussions among the employees
in January and February, and about a week after the discharge of Holderbaum, Su-
pervisor Earwood stated to several employees that, "He felt that the boss would close
the shop before going Union."
The Respondent produced testimony through William Ray to the effect that the
Company was advised at the time when purchased, of possible difficulty with the
two new International Harvester trucks equipped with overdrive transmission, and
that any "lugging" of the trucks while loaded would result in trouble and breakage
of certain parts in the transmission.3 Ray testified that the proper transmission would
be trucks with a direct fifth transmission , and further testified as to the approximate
revolutions per minute for proper operations in the shifting of an overdrive truck.
Morton Benham testified that a company mechanic asked him to remove a sleeve
from a shaft out of the transmission , and stated that the collar was not frozen but
it was difficult to remove, which indicated that the truck had to be in fifth gear to
cause the vibrations and the resulting damage.
A mechanic at the Company, John Morton, testified that he was familiar with
the new International Harvester, number 36, which Holderbaum had been driving,
and had worked on the truck after the two breakdowns. Morton testified that after
the first breakdown by Holderbaum he had found that the transmission on number
36 was locked in fifth gear, but testified that he did not make the service call on
the road and when the truck came into the company garage the drive line was
disconnected, and further stated that keeping the trucks in fifth gear with a resulting
pull would cause a vibration. As to the second breakdown by Holderbaum, the
road call was made by Morton, and he testified that his helper noticed the truck
8 Lugging was defined as driving a vehicle too slow in a particular gear with inadequate
power and vibrations resulting.
MIDSTATE HAULING CO., INC. 1157
being in fifth gear and called his attention to it, and had also found the fifth gear
sleeve broken and the shaft scored. Morton testified that the parts purchased to
make the necessary repairs cost $8.63.
Thomas Ritten , maintenance supervisor for the Company, testified that new trucks
should get 40,000 miles without major repairs, and stated that truck number 36 was
"lugged" in its operation. Ritten also testified that after the second breakdown by
Holderbaum he had experts of the International Harvester people examine the
sleeve for defects, but they had concluded there was no flaw in the sleeve and that
"it was the negligence of the driver."
Supervisor J. W. Earwood testified that it was the company policy to terminate
employment when drivers tear up equipment, but that the International Harvester
dealer had explained to them that they might have trouble with overdrive trans-
missions. Earwood stated that after the first breakdown on truck number 36 he
warned Holderbaum "to take it easy," and that the truck was out of service for 12
or 13 hours. After the second breakdown it was determined that the trouble re-
sulted from "lugging," Earwood testified, and as a result the decision was made to
discharge Holderbaum. As to union activity and statements to employees hereto-
fore attributed to him, Earwood testified that in the early part of February he had
"heard a little bit about the Union," and had heard through the "grapevine" that the
men were talking about the Union at the Company. As to his discussion with Joe
Milton during the first week in February, Earwood testified that they were dis-
cussing union activities at the Camp' s mine in Brooksville where the Company hauled
from, and was inquiring of Milton if they were having any trouble crossing their
picket lines. As to his statements to employee Woodham relative to closing the
shop, Earwood testified that this conversation took place in April, and that he and
Woodham were in a joking way discussing the union "deal over to the mine," and
that he then stated, "That other guys in the state might close down shop, that I
[Earwood] didn't know whether Mr. Hallowell would or would not close shop."
Earwood testified that he did not give Holderbaum any warning after the second
,breakdown on February 12, and that he was discharged on February 23.
General Manager Hallowell testified that the Company discharges drivers if they
have a "repeated" type of breakdown, and that he had told Earwood to instruct the
,drivers not to "lug" the two International Harvesters trucks with overdrive
.transmission.
C. Analysis and conclusions
1. The discharge of Holderbaum
I credit the testimony of the General Counsel's witnesses to the effect that union
efforts were instigated at the Company during the first weeks in February, and that
Holderbaum was one of the active union supporters. I find that the Respondent had
knowledge of Holderbaum's union activities on the basis of the credited testimony
of Jack Caldwell, wherein General Manager Hallowell had openly stated to Cald-
well that he knew Hoderbaum was "hooked" up with the Union, and which state-
ment was in no way denied even by the testimony of Hallowell himself. It is also
noted that Supervisor Earwood testified that in the early part of February he had
heard about the Union.
In resolving whether or not Holderbaum was discharged for his union activities
or for his negligence in "lugging" truck number 36, a principle of law I consider
applicable here is that stated by the First Circuit Court of Appeals in N.L.R.B. v.
Whitin Machine Works, 204 F. 2d 883, as follows:
In order to supply a basis for inferring discrimination it is necessary to show
that one reason for the discharge is that the employee was engaging in pro-
tected activity. It need not be the only reason, but it is sufficient if it is a
substantial or motivating reason, despite the fact that other reasons may exist
[citing cases]. Although the discharge of an inefficient or insubordinate union
member or organizer is lawful, it may become discriminatory if other circum-
stances reasonably indicate that the union activity weighed more heavily in the
decision to fire him than did the dissatisfaction with his performance.
In this proceeding it is concluded and recognized that the Respondent's Interna-
tional Harvester truck number 36 had two breakdowns when Holderbaum was the
driver. It is also noted that after the second breakdown on February 12, until
Holderbaum's discharge on February 23, actual contracts were made with the Union
for organizational information by Holderbaum, and that he was also very much
instrumental in the initial discussions about the Union with several of the company
drivers.
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to the Respondent's contention that Holderbaum was discharged as a result
of his "lugging" the truck, .the record reveals that before the purchase of this equip-
ment the Company had been duly informed by the International Harvester dealer
that an overdrive fifth gear transmission was not the best type for heavy loads, and
that they might have trouble with it. The record in this proceeding also established
that the Company had a driver's incentive plan whereby the operators of a truck
with the most mileage for a 30-day period were given additional compensation, and
that Holderbaum, and his fellow driver on truck number 36, Richard Caldwell, were
top mileage drivers in the immediate 30-day period preceding Holderbaum's dis-
charge. Holderbaum testified that in his 14 years of operating all types of trucks
he had never had transmission trouble before and denied any lugging on his part in
driving truck number 36. Joe Milton creditably testified that with this type of truck
and transmission the best time is made-"by not lugging." From the above it appears
highly unlikely tome, that 2 drivers would achieve first standing among 16 others, in
the Company's incentive mileage plan, and at the same time 1 of the drivers would
be operating the winning truck in a manner fundamentally inconsistent with the most
expeditious practices.
In a review of this record there was also creditable testimony that the Company
had some trouble with the transmission in truck number 36 after Holderbaum was-
discharged, and that Richard Caldwell, who was the other driver on truck number 36,
had received a subsequent promotion to foreman. In this respect it is noted that
Holderbaum related a discussion about union matters with Richard Caldwell 2 days
prior to his discharge, and upon which Holderbaum stated, that Richard Caldwell
"was very much against" the Union Richard Caldwell did not testify nor were his
antiunion sentiments attributed to him by Holderman denied by any other witness.4
From this background, and sequence of circumstantial events, it appears to me that
transmission trouble on truck number 36 was directly related and consequential to
the union viewpoints of the drivers, and the latter a final and controlling determina-
tion insofar as Holderbaum was concerned
General Manager Hallowell testified that drivers were discharged for "repeated"
type of breakdowns. Holderbaum stated that after his first breakdown, he had in-
quired of Supervisor Earwood if the transmission trouble was his responsibility, and
that Earwood replied, "No, it was just a faulty bearing." As to this incident. Earwood`
testified that he had warned Holderbaum "to take it easy," but Earwood did not
otherwise deny or refute the above statement attributed to him on this occasion It
is noted that the first breakdown occurred on or about January 22 before any union
activity started, and from the sequence and pattern of events I credit the testimony of
Holderbaum. In consideration of the above, and even assuming arguendo the Re-
spondent's contention as to the second breakdown, the discharge in question here
then resulted from only one mishap, and which is in direct contradiction to the gen-
eral manager's testimony that under normal company policies the employment of
drivers were terminated for "repeated" types of breakdown
This record further indicates, through the testimony of Respondent's witness, Wil-
liam Ray, that the overdrive fifth gear, with an extremely heavy load, was a very
poor transmission if there was any lugging by the driver In this respect it was es-
tablished that both the breakdowns by Holderbaum occurred when truck number 36
was empty and en route .to be loaded There was no explicit clarification as to the
effects on the transmission if there was any lugging of the truck while not under a
heavy pull. While certain witnesses were of the opinion that the second breakdown
was a result of lugging, the actual circumstances in this specific incident, and the
testimony I credit, shows that Holderbaum was in high third gear in coming up to a
stop sign. Mechanic Morton testified that the truck was past the stop sign when he
made the service call, but on cross-examination admitted that he had never driven
a truck over this particular road, and also admitted considerable doubt as to exact
location of the stop sign or that he had any recollection of the other pertinent terrain
features in this area Morton testified that his helper noticed that the truck was in
fifth gear, but the helper remains unidentified. and there is no credited corroborated
proof or testimony that the truck was in fifth gear at the time of the breakdown,
outside of the mere implication by Morton, that the "helper" called his attention to it.
in my conclusion here it is again noted that the Company required 11 days, from
February 12 to 23, to finally determine if Holderbaum had improperly operated
* Both Richard Caldwell and Jack Caldwell were trnekdrivers with the Company but of
no relation , and Jack Caldwell testified in this proceeding as aforestated.
MIDSTATE HAULING CO., INC. 1159
truck number 36, and coincidently in the same approximate period union activities
were initiated, and were then gaining intensity by the signing of union authorization
cards on or about February 17, and open discussions on February 21 with at least
one driver, Richard Caldwell, who was opposed to the Union. From this record it
is also noted that Holderbaurn's accusations of union reasons for his discharge, stated
to Supervisor Earwood on the day of his discharge, were not explicitly denied. The
Respondent contends that it was not incumbent upon the Company, when Holder-
baum stated to Earwood that he did not believe his discharge was due to transmission
trouble, to make a positive statement that this was the reason. Whether or not it
was incumbent for the Company to make such assurances, the facts of this incident
is that Earwood replied "maybe not," to Holderbaum's inquiry as noted above, and
further told Holderbaum that the Company would go out of business if he signed
all the cards that "came up." It appears most unlikely to me that these statements
would be made to Holderbaum, and remain largely unrefuted, unless his union
activity was actually the predominant consideration in the discharge. This record,
as stated herein, shows that the prior warnings and forecast by the International
Harvester dealer, that the Company might expect trouble with an overdrive trans-
mission, were basically correct; and in view of the pattern of union efforts here,
further substantiates the General Counsel's contention that Holderbaum was dis-
criminatorily discharged, and that his union activities were the prime motivating
factors. I reject the Respondent's contentions as without merit, and mere pretext for
the discharge.
From my observations and demeanor of the witnesses, and for the reasons as given
herein, it is accordingly found that the Respondent terminated the employment of
Harold R. Holderbaurn on February 23, 1959, in violation of Section 8(a)(3) of
the Act.
2. Interference, restraint, and coercion
In determining whether an employer's conduct amounts to interference, restraint,
or coercion within the meaning of Section 8(a) (1), the test is not the employer's
intent or motive, but whether the conduct is reasonably calculated, or tends, to inter-
fere with the free exercise of the rights guaranteed by the Act. N.L.R.B. v. Illinois
Tool Works, 153 F. 2d 811, 814 (C A. 7). Then, too, on the issue of whether the Re-
spondent violated Section 8(a) (1) of the Act, it is not required that each item of the
Respondent Company's conduct be considered separately and apart from all others,
but consideration must be given to all such conduct as a whole. N.L R B. v. Popeil
Brothers, Inc., 216 F. 2d 66, 68 (C.A. 7). If the setting, the conditions, the methods,
the incidents, the purpose, or other probative context of the particular situation can
be appraised, in reasonable probability, as having the effect of restraining or coercing
the employees in the exercise of such rights, such activity on the part of the employer
is violative of this section of the Act. N.L R.B. v. Protein Blenders, Inc., 215 F. 2d
749, 750 (C.A. 8).
In applying these principles to the evidence in this case, I find that Respondent's
course of conduct violated Section 8 (a) (1) of the Act, in the instances and for the
reasons hereinafter indicated.
The creditable evidence shows that in the week preceding the discharge of Holder-
baum, Supervisor Ear-wood talked to driver Jack Caldwell in a pickup truck at the
company terminal. The conversation itself is unrebutted, and relative thereto Cald-
well testified that Earwood asked him if he was involved in the Union, if he had
signed a card, and also asked Caldwell if employee J. Conrath was involved in the
Union. Joe Milton also testified that Earwood inquired of him as to whether any-
body had been talking about the Union, and Earwood's testimony, while admitting
the conversation with Milton, largely related his recollection as to the general subject
of unions, and that he was inquiring as to labor difficulties at another plant On the
basis of the above, I credit Milton's testimony. In addition to the above, Caldwell
also related a conversation with General Manager Hallowell who inquired as to
other employees in the Union, and there is no denial by Hallowell of this inquiry
attributed to him.
The surrounding circumstances and pattern of events in this proceeding, which
under all the conditions, reasonable probability, and conduct creditably attributed
to the Company, are singularly and in combination unfair labor practices, and upon
which it is found Respondent violated Section 8(a)(1), for the reasons hereinstated,
are: (1) Earwood's interrogation of Jack Caldwell as to his and other employees
union activities; (2) Earwood's interrogation of employee Milton as to the Union's
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organizational efforts; and (3) General Manager Hallowell's interrogation of em-
ployee Jack Caldwell as to the union membership of other company employees.
It is found, therefore, that the conduct described above has had the effect of
interfering with the rights guaranteed to employees by Section 7, and constituted
interference, restraint, and coercion in violation of Section 8(a)(1) of the Act.
The complaint in this case also alleged, as aforestated, that the Respondent threat-
ened economic reprisal against employees who engaged in union or concerted activi-
ties. Employee Woodham testified that Supervisor Earwood had stated that he
felt the management would close the plant if the Union was successful in its or-
ganizational efforts. Ilarwood testified that his remark was directed as to what other
employers might do, and that he had no specific knowledge as to what the Company
would actually do in the event the Union organized. I find the above allegation
and testimony in support thereof, under the particular conditions and circumstances,
as aforestated, not sufficiently coupled with threats or promises to constitute other
than predictions or prophecies, and as such protected by Section 8(c) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent as set forth in section III, above, occurring in
connection with its operations described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce,
V. THE REMEDY
It having been found that the Respondent engaged in unfair labor practices in
violation of Section 8(a)(1) and (3) of the Act, it will be recommended that the
Respondent cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
It will be recommended that the Respondent offer employee Harold R. Holder-
baum immediate and full reinstatement to his former or substantially equivalent
position, without prejudice to his seniority and other rights and privileges, and make
him whole for any loss of earnings he may have suffered by reason of the discrimina-
tion against him, by payment to him of a sum of money equal to that which he
would have earned as wages from the date of the discrimination against him to the
date of offer of reinstatement, and in a manner consistent with Board policy set out
in F. W. Woolworth Company, 90 NLRB 289, and Crossett Lumber Company,
8 NLRB 440.
It will also be recommended that the Respondent preserve and make available to
the Board, upon request, payroll and other records to facilitate the computation of
the backpay due.
It will be further recommended, in view of the nature of the unfair labor prac-
tices the Respondent has engaged in, that it cease and desist from infringing in any
manner upon the rights guaranteed employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Truck Drivers, Warehousemen & Helpers Local Union #512, International
Brotherhood of Teamsters, Chaeuffeurs, Warehousemen & Helpers of America, is
a labor organization within the meaning of the Act.
3. By discriminating in regard to the hire and tenure of employment of Harold
R. Holderbaum, thereby discouraging membership in the Union, the Respondent
has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the
Act.
4. By engaging in the conduct set forth in section C, 2, the Respondent has en-
gaged in and is engaging in unfair labor practices within the meaning of Section
8(a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]