Modern Motor Express, Inc.

National Labor Relations Board - Board Decisions

Jan 30, 1961

129 N.L.R.B. 1433 (N.L.R.B. 1961)

MODERN MOTOR EXPRESS, INC. 1433
multiemployer League meet the Board's standards for assertion of
jurisdiction. See cases cited in this paragraph numbered 4 and also
Appliance Supply Company, 127 NLRB 319; Man Products, Inc.,
128 NLRB 546; Indiana Bottled Gas Company, 128 NLRB 1441,
where the Board indicated that jurisdiction over combined retail-
nonretail enterprises would be asserted under either the retail or the
nonretail standard.
Accordingly, the parties are advised, pursuant to Section 102.103
of the Board's Rules and Regulations, Series 8, as follows :
With respect to labor disputes cognizable by the Board under Sec-
tions 8, 9, and 10 of the Act :
1. The Board would assert jurisdiction over the operations of the
multiemployer League.
2. The Board limits its advisory opinion to the jurisdictional issues
before it and does not presume to render an opinion on the merits of
the cases or on the question of whether the subject matter of the dis-
pute is governed by the Labor Management Relations Act of 1947,
as amended.
MEMBER JENKINS, concurring :
I agree with my colleagues that the Board would assert jurisdic-
tion over the operation of the multiemployer League. However, I
would do so solely on the basis that its operations meet the Board's
nonretail jurisdictional standard, i.e., the League has made out-of-
State purchases in excess of $50,000. Siemons Mailing Service, 122
NLRB 81; Independent Motion Picture Producers Association, Inc.,
123 NLRB 1942; Edward Small Productions, Inc., 127 NLRB 283.
CHAIRMAN LEEDOM and MEMBER RODGERS took no part in the con-
sideration of the above Advisory Opinion.
Modern Motor Express, Inc. and Robert J. Hicks
Modern Motor Express, Inc. and Lloyd Jarvis. Cases Nos. 8-CA-
2156-1 and 8-CA-5156--2. January 30, 1961
DECISION AND ORDER
On October 12, 1960, Trial Examiner William Seagle issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Interme-
diate Report attached hereto. Thereafter, the General Counsel filed
129 NLRB No. 181.
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exceptions to part of the Trial Examiner's recommended order and a
supporting brief.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent, Modern Motor Ex-
press, Inc., Cleveland, Ohio, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from discouraging membership in Auto Trans-
portation, New Trailer and Armored Car Drivers, Garagemen, Gas
Station and Parking Lot Operators Union No. 964, affiliated with the
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or in any other labor organization of its
employees, by discharging, laying off, or in any other manner discrimi-
nating against its employees with respect to their hire or tenure of
employment or any term or condition of employment, except as author-
ized by Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Lloyd Jarvis immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him whole for any
loss of pay he may have suffered by reason of the Respondent's dis-
i The Trial Examiner recommended that Robert Hicks, who was discriminatorily dis-
charged on April 27, 1960, be awarded backpay from that date until the date that he was
inducted into the Armed Forces and from a date 5 days after be applies for reinstatement
on his return from service until the date of the Respondent ' s offer of reinstatement. He
also recommended that Respondent be ordered to notify Hicks by registered letter that be
would be afforded the opportunity to apply for reinstatement within 90 days after his
discharge from the service. In his exceptions , the General Counsel contends that it is
not incumbent upon Hicks to apply for reinstatement in order to preserve his right to
backpay from the date of his discharge from the service , but that his backpay should run
from such discharge to the date of a reinstatement offer. We agree with the Trial
Examiner that once the Respondent notifies Hicks that lie is entitled to be reinstated
upon his discharge from the service, it is incumbent upon IIicks to let the Respondent
know when he is ready to return to work Alamo Express, Inc, 127 NLRB 1203; Hunt
Heater Corporation , 108 NLRB 1353, 1365 . We shall, however , modify the Trial
Examiner's order to provide that the Respondent pay Hicks immediately that portion of
his net backpay accumulated between the date of his discriminatory discharge and the
date when he entered the Armed Forces , without awaiting a final determination of the
full amount of his award Alamo Express, Inc., supra.
In the absence of any exceptions by the Respondent , we adopt the Intermediate
Report pro forma except as noted above.
MODERN MOTOR EXPRESS, INC. 1435
crimination against him in the manner and to the extent set forth in
the section of the Intermediate Report entitled "The Remedy."
(b) Notify Robert J. Hicks by registered letter addressed to his
last known address that the Respondent will afford him an opportunity
to apply for reinstatement within 90 days after his discharge from
the Armed Forces, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of pay he may have
suffered because of Respondent's discrimination against him by pay-
ment to him of a sum of money equal to the amount he would nor-
mally have earned as wages between the date of his discharge or layoff
and the date when he entered the Armed Forces, and between a date 5
days after his timely application for reinstatement and the date of
the offer of reinstatement by Respondent, less his net earnings during
these periods. The Respondent is ordered to pay Robert J. Hicks
immediately that portion of his net backpay accumulated between the
date of his discriminatory discharge and the date he entered into the
Armed Forces, without awaiting a final determination of the full
amount of the award.
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all other records necessary for the determination of the amount of
backpay due under the terms of this Order.
(d) Post at its Cleveland, Ohio, shops, copies of the notice attached
hereto marked "Appendix." 2 Copies of such notice, to be furnished
by the Regional Director for the Eighth Region, shall, after being
duly signed by the Respondent's authorized representative, be posted
by the Respondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Eighth Region, in writing,
within 10 days from the date of this Order, what steps the Respondent
has taken to comply herewith.
2 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership by any of our employees
in Auto Transportation, New Trailer and Armored Car Drivers,
Garagemen, Gas Station and Parking Lot Operators Union No.
964, affiliated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or any other
labor organization of our employees, by discharging, laying off, or
in any other manner discriminating against any of our employees
in regard to their hire or tenure of employment, or any term or
condition of their employment, except as authorized by Section
8(a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WE WILL offer to Lloyd Jarvis immediate and full reinstate-
ment to his former or substantially equivalent position without
prejudice to his seniority or other rights and privileges, and will
make him whole for any loss of earnings he may have suffered
by reason of our discrimination against him.
WE WILL also make whole Robert J. Hicks for any loss of
earnings he may have suffered by reason of our discrimination
against him and we shall notify him of his right to apply for
reinstatement within 90 days after his discharge from the Armed
Forces.
All our employees are free to become, remain, or refrain from be-
coming or remaining members of any labor organization, except to the
extent that this right may be affected by agreements in conformity
with Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
MODERN MOTOR EXPRESS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
The complaint in these consolidated cases charged the Respondent with violations
of Section 8(a) (1) and (3) of the Act as hereinafter specified . William Seagle, the
duly designated Trial Examiner , held a hearing on these charges at Cleveland, Ohio,
on July 25 and 26, 1960. Counsel for the General Counsel argued the issue in the
case orally at the conclusion of the taking of testimony at the hearing. Subsequent to
the hearing counsel for the Respondent filed a brief in support of its contentions
that the complaint should be dismissed.
Upon the record so made, and based upon my observation of the witnesses, I
hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Modern Motor Express, Inc., is an Ohio corporation with its
principal office and place of business at Cleveland, Ohio, and with branch offices at
MODERN MOTOR EXPRESS, INC. 1437
Ashtabula, Canton, Akron, Toledo, Columbus, Springfield, Dayton, Cincinnati, Lima,
Mansfield, and Newark, all also in the State of Ohio. The Respondent is engaged in
the movement of dry freight and steel by truck and trailer within the State of Ohio
but these operations are performed pursuant to contracts or arrangements with various
interstate common carriers , and from these operations it has derived annually a gross
income in excess of $50,000. In connection with the prosecution of its business, the
Respondent maintains at Cleveland, Ohio, shops for the maintenance and repair of
its automotive equipment , consisting of trucks , tractors , trailers, and semitrailers.
These shops consist of a mechanical shop for the repair of the automotive equip-
ment, such as trucks and tractors, and a trailer shop where trailers are repaired, re-
built, or reconditioned. Since November 28 or 29, 1958, these shops have been
under the general supervision of Daniel (Danny) Gregg, the vice president of the
Respondent. The president of the Respondent is Joseph Gregg, who is the father
of Daniel Gregg.
H. THE LABOR ORGANIZATION INVOLVED
Auto Transportation, New Trailer and Armored Car Drivers, Garagemen, Gas
Station and Parking Lot Operators Union No. 964 (hereinafter referred to as the
Union), is affiliated with the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America . The Union admits to membership the em-
ployees who work in the Respondent's repair shops.
III. THE UNFAIR LABOR PRACTICES
The complaint charges that since on or about January 1, 1960, the Respondent has
been engaged in a whole series of acts designed to interfere with, restrain, and coerce
its employees in the exercise of the rights guaranteed to them by the Act. Thus, the
complaint charges that the Respondent, in violation of Section 8(a)(1) of the Act,
has interrogated employees concerning their union activities and their willingness to
revoke their union authorization cards; threatened the discharge of employees because
of their union activities; denied Lloyd Jarvis, one of its employees, any overtime
work, because of his union activities ; and promised employees continued employ-
ment if they refrained from joining, assisting, or supporting the Union. Actually,
these allegations of the complaint , which are , with a single exception , general and
pluralistic , appear to be a series of stereotypes which conceal rather than reveal the
nature of the Respondent's objectives. They seem to suggest that the Respondent was
engaged in a campaign to prevent the Union from gaining a foothold in its organiza-
tion when in reality the Respondent , long before the date of the events mentioned in
the complaint , had recognized the Union and entered into a collective -bargaining
agreement with it under the terms of which those of its employees who belonged to the
Union at the time the agreement was made were required to maintain their member-
ship in good standing , and those of its employees who were subsequently hired were
required to join the Union within 31 days of the beginning of their employment, and
to maintain their membership in good standing thereafter . The Respondent did, to
be sure, commit unfair labor practices but these did not stem from any desire on its
part to prevent its employees in general from joining the Union . They resulted
rather from the determination on its part to deprive its employees of the benefits of
union membership, especially the benefits which were provided by its collective-
bargaining agreement with the Union , which, in great part, it honored in the breach.
This conduct on its part eventually led it to the discharge of two of its employees,
Lloyd Jarvis and Robert J. Hicks, who in different ways had attempted to obtain
some of the benefits of the union contract . Whatever violations of Section 8(a)(1)
of the Act were committed by the Respondent were simply incidental to the discharges
of Jarvis and Hicks, which were also interdependent.
A. The case of Lloyd Jarvis
Lloyd Jarvis was employed as a welder in the Respondent's trailer shop and was a
member of the Union . Under the terms of the union contract, he was classified as a
journeyman mechanic, being paid at the rate of $2.71 an hour. He worked under
the immediate supervision of Edgar Strunk , who was also a member of the Union, and
who under the terms of the union contract was classified as a working foreman.
Jarvis was first employed by the Respondent on January 28, 1959 , but one day in
February 1960 he quit in a huff when Strunk commented on his not being at work
at a time when he had lent one of the other employees his welding lead , and he had
stepped out of the way to keep from getting his eyes burned . The next day when he
went to the shop to pick up his check , he was told that Danny Gregg wanted to see
him in his office. In the ensuing conversation , the latter asked Jarvis to return to
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work, telling him that he was the best welder in the shop . This was not mere flattery
for the purpose of persuading Jarvis to return. In testifying about Jarvis' work,
Strunk gave it as his opinion that Jarvis was "the best welder that I have ever met."
Jarvis, who had been away from his job only 1 day, agreed to return.
This incident should have warned Danny Gregg that Jarvis was a rather proud,
high-spirited employee who would not tolerate any conduct on the part of his
superiors which he thought to be unfair , or which reflected on him in any way. But
in April, Danny Gregg himself became directly involved in an incident with Jarvis,
and this produced an even more intense reaction on the part of the latter.
On April 20 , which was a Wednesday , Jarvis hurt his back while scraping trailers.
On Friday , April 22, he told Danny Gregg during the morning that he intended to go
to the clinic for medical attention but that he would wait until about 3:30 p .m. when
the clinic was not so crowded , and he would waste less time in waiting . Looking at
the situation from "the company's side," as Jarvis put it, he decided that he could
endure his suffering for a few hours longer. When he left the shop about 3:30 p.m.,
he asked Danny Gregg whether he should come back to punch his timecard. Jarvis
understood Danny Gregg to say that , since it would be after 4 : 30 p.m -the normal
quitting time-before he could return to the shop , that he should go on home and that
he would fix his timecard up.
When Jarvis returned to work on Monday morning , April 25, he found his time-
card punched out at 3:30 p.m., and initialed "DG." When Danny Gregg came into
the trailer shop about 9 a.m., Jarvis asked him : "Danny, how come you punched my
card out at 3:30?" Jarvis added: "I told Ed you told me to go home . That you
would punch my card out at 4:30." Danny Gregg replied: "Well , Lloyd that must
have been a misunderstanding." Jarvis, however , would not accept this explanation.
"No, Danny," he remarked , "I don't think it was a misunderstanding because that was
what you told me. Then you told Ed Strunk that you weren't paying me ( for going
to the clinic ) when Ed Strunk mentioned it to you about punching my card out."
Jarvis continued : "If that is the way you want it. You had told us that if anyone
wanted time and a half for all overtime that they had worked , that you would be
willing to pay it. . . . Well, if your going to do me that way , for going to the Clime
when I got hurt here , at work, for one hour, you can pay me time and a half then for
all overtime that I do work from today on." Danny Gregg then told Jarvis that he
would fix his timecard up, and he did so, changing the 3:30 on the timecard to 4:30.
In mentioning payment for overtime , Jarvis had in mind article HI, sections 1 and
2, of the union contract , which provided for a normal workweek of 8 hours a day
for 5 days of the week , and for the payment of time and a half for all overtime.
The Respondent's employees had been working overtime to a considerable extent
but had not insisted on payment of time and a half for this overtime . This arrange-
ment was plainly in violation of the union contract, for not only did the contract
require the payment of time and a half for overtime but article XV, section 3, of the
union contract expressly provided : "The Employer agrees not to enter into any agree-
ment or contract with his employees , individually or collectively , which in any way
conflicts with the terms and provisions of the Agreement." [Emphasis supplied.]
Just before quitting time the same day (namely, April 25), Ed Strunk asked
Jarvis whether he intended to work overtime that day. Jarvis replied : "Yes, Ed, I
guess I will." Strunk then told Jarvis that since he was asking time and a half for
all overtime , he would have to check with Danny Gregg . The latter was not at his
desk, however , and Strunk therefore checked with Charles W. Cimbelos, the fore-
man of the mechanical shop, who told Strunk to send Jarvis home. Jarvis, when
informed that he was not to work overtime, went to .the showerroom to wash up and
change his clothes. While he was changing his clothes , Danny Gregg came to the
door of the showerroom and told Jarvis that he would like to see him at his desk.
When he got there, Danny Gregg pointed out that since his timecard had been
adjusted, and his fellow workers needed the overtime to be able to pay their bills,
he would do well to reconsider his demand for time and a half for overtime . Jarvis
replied, however, that he would insist on time and a half for overtime , and that if the
other men worked overtime for straight time , he would go to the union ball. Danny
Gregg then asked Jarvis whether he would be willing to hold a meeting on the over-
time question , and to this proposal Jarvis agreed. At the suggestion of Danny
Gregg, he went around to call the employees to the latter 's office.
At this meeting , which took place about 4:30 p .m. on April 25 in Danny Gregg's
office, all the men who worked either in the mechanical or in the trailer shop, except
five employees who worked at night, were present In addition to Danny Gregg
and Jarvis , the two working foremen, Strunk and Cimbelos , were also present. At
the invitation of Danny Gregg, Jarvis took the floor and addressed his fellow em-
ployees, telling them in substance that he was being sent home that night for asking
MODERN MOTOR EXPRESS, INC. 1439
to be paid time and a half for overtime, and appealing to them to support him in
his demand for time and a half for overtime. One of the employees suggested that
a secret ballot be held on the question.' Ballots were cast and turned over to
Cimbelos who handed them one by one to Danny Gregg, who counted them. The
vote was 6 to 5 in favor of continuing to work overtime for straight time. Then
another of the employees suggested that Danny Gregg be asked to leave the office,
and that they take a second vote during his absence. This was done, and this time
the vote was 7 to 4 in favor of working overtime only if time and a half were paid.
When called back into the office, and informed of the result of the second vote,
Danny Gregg declared that the Company could not afford to pay time and a half
for overtime, and that if they insisted on this, he could not guarantee how much
overtime would be worked. He went on to assure the employees, however, that there
was enough work to keep everybody busy, and that there would be no reprisals and
no layoffs, although it would be necessary to stagger the working hours of the em-
ployees, so that some would always be available for repair work .2 Turning to Jarvis,
Danny Gregg also asked the latter whether he would object if the men worked
overtime at straight time until Wednesday, which was the beginning of the work-
week, so that he might have an opportunity to straighten out the shifts.3 Jarvis
agreed to this with the proviso, however, that he personally would insist upon being
paid time and a half for any overtime that we worked. Jarvis did not work any
overtime for the Respondent either that day or the next day, although all the other
employees in the trailer shop did work overtime.
The actions of Jarvis not only had the effect of putting a stop to the working of
overtime at straight time in the future but also of compelling the Respondent to make
some payment for the overtime that had been worked by its employees in the past,
for Jarvis took the initiative in bringing the Respondent's dereliction to the attention
of the Union's business agent, Frank Yeigh. He reported the situation to the latter
by telephone on April 25, apparently, but Yeigh was unable to come over to the shop
until April 27. When the business agent arrived on that day, Jarvis met him at the
door of the trailer shop and asked him for grievance forms which could be filed by
the employees who wished to assert claims. Yeigh gave Jarvis the grievance forms
while Danny Gregg was in the vicinity-the latter was standing at a distance of 10
to 15 feet and looking toward the trailer shop. Jarvis took the grievance forms to
his locker, and at lunchtime he passed them around to the employees who wished to
file the overtime grievances. There were seven such employees, and their grievances
were processed by the Union. Eventually, the Union secured a settlement of the
grievances which involved payments to the employees by the Respondent.
A little after 5 p.m. on April 27 Danny Gregg told Jarvis that he wished to see him
at his desk when he quit work. Having been forewarned by a fellow employee that
Danny Gregg intended to lay him off, Jarvis said to the latter when he appeared at
his desk: "Danny,'I know what you want to see me about. You have my check and
layoff slip for me. I'm going to be laid off this afternoon." Danny Gregg replied:
"Yes, Lloyd, your [sic] going to be laid off." He handed Jarvis his check and
added: "We will call you when works picks up." However, Jarvis has never been
called back to work by the Respondent. When laid off, Jarvis was in the midst of
performing, the welding work on a trailer.
B. The case of Robert J. Hicks
Among the employees who were present at the overtime meeting on April 25
was Robert J. Hicks who was affectionately known as "Junior." The reason for
this sobriquet was his youth. When first employed by the Respondent .in November
1958, he was only 18 years of age. Before his employment by the Respondent he
had been helping his stepfather who was employed by a firm called Al Gregory Con-
struction in the erection of a building for the Respondent. After this work had been
suspended for the winter, and Hicks' stepfather had had a falling out with the con-
tractor, Danny Gregg hired Hicks, for whom, he testified, he had a sentimental
1It seems that Ed Strunk, the trailer shop foreman, pointed out that the employees
could not take a vote because it would be contrary to the union contract but he appears
to have been ignored
2 Such a shift system would reduce, of course, to a considerable extent, the n^^ ^ssrtp
for overtime without eliminating it entirely, since an employee on a shift who had
started on a repair job might have to work overtime to complete it Moreover, overtime
might also be rendered necessary by various emergencies
Danny Gregg also directed some personal remarks to Robert J Hicks. These remarks
are related below in connection with the discussion of Hicks' case
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attachment, and brought him over to Cimbelos, telling the foreman to find some
work for Hicks to do because the family's financial condition was such that he had
to support his mother. Although when Hicks was hired it was understood that it
wasto be only for the winter months, he was kept on after the winter and continued
to be employed by the Respondent. To complete his personal history, it should be
recorded that Hicks was married in December 1959, and that his new matrimonial
estate increased his economic difficulties.
The Respondent seeks to create the impression that Hicks was hired to do such
odd chores as sweeping the floors and "chasing" parts when needed. However,
Hicks never swept floors per se-he did so only when it was necessary to push aside
rubbish which was in the way of his work. While part of Hicks' duties was to pick
up and deliver parts, there is no doubt that he really served as a trailer mechanic's
helper. He seems to have possessed considerable mechanical aptitude, and, while
for some types of repairs he required instruction or supervision, he was able to
perform such jobs as relining brakes, repacking wheels, and putting metal patches
on trailers. Indeed, his stepfather had taught him welding and he was able to use
an acetylene torch by himself. Hicks summed up his employment history by stating
that while he was hired as a trailer mechanic's helper, he considered himself a
trailer mechanic by the time his employment was terminated. Whether or not one
agrees entirely with his own assessment, he certainly was at least a trailer mechanic's
helper. As such, he was entitled to be classified as an "apprentice" under article
VIII of the union contract, which called for the payment of $2.13 an hour for
apprentices. Actually, he was paid the wages of a laborer.
Thus, Hicks may properly be described as a bootleg apprentice. Since the Re-
spondent was again violating a requirement of the union contract, some action that
would save appearances when the Union's business agent was around became neces-
sary. About a month after he was hired, Danny Gregg told Hicks that if the
business agent came around and asked him any questions he was to state that he
was a porter paid to sweep the floors. Thereafter, whenever the union business
agent visited the shop, Danny Gregg, or someone acting for him, would come over
and tell him either to go over to the gas station, start sweeping the floors, or go
out for parts. Complying with these instructions, Hicks would make himself scarce.
About 6 months after he was first employed, Hicks almost crossed up this
strategy by signing a union membership application and checkup slip, and giving
them to none other than Frank Yeigh, the Union's business agent. Not surprisingly,
about a week after this piece of temerity, Hicks heard from Joseph Gregg, the presi-
dent of the Respondent. Joseph Gregg had Hicks summoned to his office and told
the youth that he liked his work and would like to keep him on as an employee but
that if he wanted to continue working for Modern Motor Express he would have to
withdraw his union application. Hicks asked Joseph Gregg if it would be possible
for him to sign up as an apprentice but the latter told him that he did not have
enough experience to be an apprentice in the shop. Hicks then remarked to
Joseph Gregg: "If that is the way it is, I'll do it." So Hicks withdrew his union
membership application.
About a week or two after this interview with Joseph Gregg, Hicks made matters
still worse by telling Frank Yeigh personally the story of the interview. Ironically,
this conversation between Hicks and the union business agent took place at the gas
station to which he had been sent to get him out of the way of the union business
agent! The latter's comment on Hicks' story was to tell the aspirant to union
membership that if he did not sign up, he could have him fired. But, providentially,
nothing happened.
Shortly after he was married, Hicks again brought up the forbidden subject of
his joining the Union but only indirectly. He asked Danny Gregg for a 15-cent an
hour raise because "things were a little rough at home," due to the fact that he now
not only had to take care of his mother but his wife. Despite his sentimental feel-
ings for Hicks, Danny Gregg refused to give him any raise. Then Hicks asked
whether he could be paid time and a half for overtime, and Danny Gregg pointed
out to him that only union members were entitled to time and a half! Whereupon
Hicks again foolishly inquired whether it would be possible for him to get into the
Union. Danny Gregg contented himself with reminding Hicks about what his
father, Joseph Gregg, had said to him on this subject but promised to talk to his
father about the raise and overtime. About a week later, Hicks stopped Danny
Gregg in the trailer shop and asked the latter whether he had any word from his
father. Danny Gregg told Hicks he would not get any raise and that he could not
join the Union.
MODERN MOTOR EXPRESS, INC. 1441
So matters stood when the Jarvis overtime revolt occurred on April 25, 1960.
As the overtime meeting was in progress in Danny Gregg's office, Hicks, who had
been away to pick up some parts, returned to the shop and noticed that all the
employees were in the office. Danny Gregg motioned to Hicks to come up to the
office with the other men? After the second vote had been taken, and Danny Gregg
had announced to the employees that there was enough work for everybody, and
that there would be no layoffs, he turned to Hicks and told him that he did not
know what to do with him, and that he might be laid off. Since the men wanted
time and a half for overtime, Danny Gregg explained, the shop would have to be
run as a union shop, and if Hicks stayed on, he would have to join the Union.
This, in turn, would have made it necessary, of course, to pay him in accordance
with the union wage scale.
Although Danny Gregg seemed only to be musing concerning the possibility that
Hicks might be laid off, April 25 turned out to be the last day that the latter ever
worked for the Respondent. Hicks did not report to work on Tuesday, April 26,
because he was sick. When he did report for work the next day, April 27, Strunk,
his foreman, told him that his time schedule was set for a later hour that day, and
that he would have to wait until Danny Gregg came in to find out what time to
start work. When the latter arrived, he told Hicks that he would have to take a
few days off because what with the overtime business and the Union "it was a little
warm around there," and that he should call him on Friday, by which time the
situation might be "cooled off a little bit." When Hicks called Danny Gregg on
Friday, the latter told him to report for work on Monday at 8 a.m. When he did
so, he found that his timecard had been pulled from the timeclock. He went to see
Strunk and found Cimbelos with him, and the latter told Hicks that both of the
Greggs were out of town and that he had been told to pull Hicks' timecard, and to
tell him that he was not to report for work until the following Wednesday when
the Greggs would be back in town. When Hicks reported for work on Wednesday,
which was May 4, Cimbelos told him that the Greggs were still out of town, and that
he did not know when he would start work. Just then, as Hicks was walking out
of the door, Danny Gregg came in, and Hicks asked the latter to tell him when he
would be able to start work. Danny Gregg remarked, however, that "things
weren't straightened out about the union as yet," and he would have to take a few
more days off. Hicks then told Danny Gregg that if and when he did return, he
wanted to join the Union. Danny Gregg stated that he would put Hicks back to
work working his regular hours, which were 10 to 12 hours a day, at straight time,
if it was possible, but that they would take the union matter up after he returned
to work.
Hicks has not been called back to work by the Respondent. Sometime between
May 4 and the date of his appearance at the hearing he enlisted in the Navy, and he
testified at the hearing that he was to report for induction on July 29, 1960.
C. Incidents' subsequent to the layoffs
On April 27, 1960, which was the day that Lloyd Jarvis was laid off by Danny
Gregg, Ed Strunk, his foreman, overheard a conversation between Joseph and Danny
Gregg. Joseph Gregg asked his son: "Did you get rid of the trouble makers?"
Danny Gregg replied: "Well, I'm going to lay off some men this afternoon," or some-
thing to that effect.
On April 29, 1960, Robert Lee Edmisten, one of the Respondent's employees,
who on April 27, 2 days previously had filed one of the overtime grievances with
the Union, had a conversation with Danny Gregg and his father. When at the close
of the day's work Edmisten rang out, he found Danny Gregg and his father waiting
for him. They called him aside where nobody else could hear them, and talked to
him about the overtime grievance which he had filed with the Union. Joseph Gregg
remarked that he did not appreciate the fact that he filed a grievance after all the
things that he had done for him. One of these "things" was befriending Edmisten
when be had been attacked by someone with a knife in March 1960. Edmisten rather
defiantly replied that he had not filed the grievance because of pressure from any-
body but that he was doing it on his own, whereupon Joseph Gregg declared that
he "wasn't worried about anything, as far as having to get into any trouble paying
fines or anything, because he knew certain people through influence.. . He didn't
have to worry about any of this. He knew loopholes and people down town."
' Nothing could better indicate that Danny Gregg himself regarded Hicks as at least a
trailer mechanic's helper.
586439-61-vol. 129-92
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Despite his lack of worry about the overtime grievances in general Joseph Gregg tried
to get Edmisten to withdraw his overtime grievance by pointing out to him that he
was a married man with four children, and telling him that when he was out on the
street there would be nobody to come along to give him a helping hand "to feed his
wife and kids." Then Joseph Gregg asked his son, Danny, "Who started all this
so-called trouble here?" Edmisten remarked that "it all started with Danny and
Jarvis on this hospital deal." After Danny Gregg confirmed that Jarvis had been
the source of all the trouble, Joseph Gregg asked- "Well, is that man still here with
us?" Danny Gregg replied: "I laid him off yesterday." Joseph Gregg commented:
"There shouldn't be any more trouble then." At this point in the conversation Joseph
Gregg was called to the telephone, and Danny Gregg took the opportunity to tell
Edmisten that his father would go to any lengths to get his way, and that he ought
to reconsider his "outlook on things." About 2 weeks before the hearing in this
case Danny Gregg told Edmisten: "My father wants you out of here."
D. The Respondent's case
It is the contention of the Respondent that Jarvis and Hicks were laid off for lack
of work, and that the circumstance that they happened to be laid off right after the
overtime trouble arose was a mere coincidence.
In support of this contention, Danny Gregg was called as a witness on behalf of
the Respondent. According to his testimony, after he took over the responsibility for
the repair work in November 1958, he instituted a trailer reconditioning program
and a preventive maintenance program with respect to the automotive equipment.
The trailer reconditioning program was suspended in April 1960 because freight
revenues had dropped off in March and the Respondent had four reconditioned
trailers for which it no longer has any use. Although the preventive maintenance
program was continuous, it required twice as much work when first instituted as it
did after the equipment had been put into good condition Such a condition having
been achieved in April 1960, he finally decided during the weekend preceding the
overtime meeting on April 25 to lay off Jarvis and Hicks. So far as Jarvis was con-
cerned, he was selected for layoff because, his employment having been interrupted
when he quit in February 1960, he had the least seniority of any employee in his
classification, and the union contract provided that layoffs should be governed by
seniority.
As for any of the statements attributed to him or his father, indicating that the
layoffs of Jarvis and Hicks were discriminatory, Danny Gregg denied them all,
including even statements of his father which were not made in his presence' Thus,
Danny Gregg denied that he assured the employees at the overtime meeting that
there would be no reprisals and no layoffs; that he told Hicks to make himself scarce
or to sweep floors whenever the union's business agent was on the premises; that
either he or anyone to his knowledge-this being intended to cover his father-ever
told Hicks that he could not join the Union or that if he did join the Union he would
be fired; or finally that his father even made the remark in connection with the
Edmisten knifing incident about knowing loopholes, or that his father ever asked
him whether he had gotten rid of the troublemakers.
I do not credit Danny Gregg's explanation of the layoffs or any of his specific
denials. The record shows that his ways were devious, and these ways do not inspire
confidence in his veracity. A man who had almost no respect for the obligations of
a contract could not have a very high regard for the sanctity of an oath. As for the
remarks attributed to Danny Gregg's father that were not made in his presence,
these cannot even be considered as denied, since Joseph Gregg chose not to testify at
the hearing. Danny Gregg could not enter the denials on behalf of his father by
proxy
Apart from these general considerations, there are many specific reasons for
rejecting Danny Gregg's testimony. These reasons are as follows
(1) The work that was performed by the employees of the Respondent was not,
of course, in the production of goods for sale but in the servicing of a fleet of trucks
and trailers. The amount of the repair work involved in such servicing cannot be
accurately estimated in advance, and does not necessarily bear a direct relationship
to the freight revenue in terms of dollars, and unless the decline in such revenue were
severe, the employer would not normally lay off the type of employees who could
be replaced only with difficulty, especially when such employees were particularly
valuable. The Respondent chose not to produce figures to establish precisely the
amount of the decline in its revenues but Danny Gregg testified that he "guessed"
MODERN MOTOR EXPRESS, INC. 1443
that after the decline in revenue in March they needed 120 to 125 pieces of the 150
to 155 pieces of rolling equipment which the Respondent had. This decline in the
need for equipment does not indicate a severe decline in revenue. Moreover, Danny
Gregg also testified that the freight revenues tended to go up and down, which would
indicate that a sudden rise in revenue could also be experienced. Even more sig-
nificantly Danny Gregg also indicated in his testimony that his father had been after
him for some time to reduce the number of employees. Evidently, the son was
reluctant to do so.
(2) While it is not conclusive in itself, the fact that Jarvis was laid off before he
had completed the welding on the trailer on which he was working indicates that the
overtime episode was the spur to Danny Gregg's decision.
(3) The fact that Jarvis was laid off strictly in accordance with the seniority rule
of the union contract means little or nothing in the circumstances of the present
case. Neither Joseph Gregg nor Danny Gregg appear to have been persons who
would be deterred by the provisions of the union contract. Moreover, the inter-
ruption in the employment of Jarvis was so slight that it could with some reason be
contended that it should be disregarded. Here was a "loophole" of which the Greggs
were not anxious to take advantage.
(4) The most decisive reason perhaps for rejecting Danny Giegg's explanation of
the layoffs is the direct evidence that he declared at the overtime meeting that there
would be no layoffs. Certainly, he was the person in the best position to know
whether layoffs were necessary. No less than four witnesses-Jarvis, Hicks, Strunk
and Edmisten-whose credibility there is no good reason to doubt testified that
Danny Gregg declared at the overtime meeting either that there would be no layoffs
or that there was plenty of work to keep everybody busy. Although Danny Gregg
denied that he declared at the overtime meeting that nobody would be laid off, he
himself admitted, moreover, that he made a remark that amounted to such a state-
ment. Thus he testified that he told the employees at the overtime meeting: "They
would continue working but I couldn't guarantee as many hours as they had prior
to that " [Emphasis supplied.]
(5) The very fact that Danny Gregg called the overtime meeting-I do not credit
his testimony that the meeting was suggested by Jarvis-and that he tried to persuade
the employees to continue working overtime at straight time, are wholly inconsistent
with the idea that a shortage of work was developing and that layoffs were neces-
sary. Even if it were assumed, moreover, that Jarvis rather than Danny Gregg
called the meeting, the fact would remain that the latter raised no objection to
holding the meeting but participated in it to the fullest extent, and made no state-
ment to the effect that the whole quesion of overtime had become academic. An
even worse contradiction is to be found in Danny Gregg's testimony that he decided
on the layoffs the weekend preceding the overtime meeting. If indeed he made
such a decision, his behavior and declarations at the overtime meeting amounted
to an absurd and heartless charade.
(6) The layoff of Hicks in particular is wholly inexplicable except upon the as-
sumption that Jarvis having raised the overtime issue, the further employment of
Hicks had become impossible, unless he were permitted to join the Union, and so
put himself in a position which would require that he paid in 'accordance with the
union wage scale. Clearly, in the case of Hicks his layoff would leave the Respond-
ent without anyone to pick up and deliver parts, which was a part of Hicks' duties,
and also without the miscellaneous services which he performed for the other em-
ployees as an apprentice. The continuous need for his services is apparent alone
from the fact that, although originally hired only for the winter season, he had been
kept on indefinitely, and was still working for the Respondent approximately a year
and,a half after he had first been employed The perplexity of Danny Gregg when
faced with the prospect of losing Hicks' underpaid services is readily understand-
able. It explains Danny Gregg's admission that he made the remark to Hicks at
the overtime meeting that he did not know what to do with him and that he might
be laid off. He attempted, however, to explain the remark in terms of his senti-
mental attachment for Hicks. Thus he testified: "Knowing that I would have to lay
him off at the end of the workweek, it was a way that I sort of softened what I had
to tell him " But this explanation is only another one of Danny Gregg's contra-
dictions. His remark to Hicks at the overtime meeting bespeaks uncertainty about
what to do with him. But Danny Gregg also testified that his decision to lay him
off with Jarvis had already been made the previous weekend. This, in turn, is
utterly inconsistent with his treatment of Hicks in the period of almost 2 weeks that
followed the overtime meeting during which Danny Gregg and his foremen would
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
neither let Hicks perform any work nor tell him definitely whether he was laid off-
a form of treatment that can hardly be reconciled with any sentimental attach-
ment for its victim.
(7) In the case of Hicks, .the Respondent produced another witness in the person
of Charles W. Cimbelos, the working foreman, who had been with the Respondent
for 10 years and under whose immediate tutelage Hicks worked. Cimbelos was
produced primarily as a scapegoat to take upon himself the sin of keeping Hicks
away from the union business agent. Thus Cimbelos testified that it was not Danny
Gregg but he who took pit upon himself to see to it that Hicks made himself scarce
whenever the union business agent appeared on the scene. He swore that he took
this action "strictly on my own." I do not credit the testimony of Cimbelos, not-
withstanding his loud protestation that he realized that he was testifying under oath.
His powers of recollection were certainly wretched. For example, every witness
who testified at the hearing, including Danny Gregg, was perfectly sure that the
overtime meeting on April 25 had taken place about 4:30 p.m. at the close of the
working day, but Cimbelos insisted that it took place between 12:30 and 1 p.m.
after lunch. Cimbelos certainly was not giving an honest opinion when he declared
that Jarvis was "definitely not" one of the most experienced welders in the Re-
spondent's shop. Like Danny Gregg, Cimbelos involved himself in hopeless contra-
dictions when he attempted to fulfill his role as scapegoat. His explanation of
why he spirited Hicks away whenever the union business agent put in an appearance
was that he did so because "the -boy . had no initiative" and no ambition to better
himself, and he was convinced that he would remain an apprentice the rest of his
life. Needless to say this estimate of Hicks' abilities and character finds no support
in the testimony of any of the other witnesses. However, this was not really the
estimate of Cimbelos himself, for he contradicted himself by also testifying that he
urged Hicks to attend a night school operated by the Union, and he would not have
urged him to do so if he really thought that he was so hopeless. In any event,
Cimbelos did not prove himself equal to the task of explaining how Hicks' limitations
barred him from aspiring to union membership. Moreover, even if Cimbelos had
been equal to this task, and even if it were perfectly true that keeping Hicks away
from the union business agent was entirely his idea, it really would not matter so
far as the responsibility of the Respondent for his acts is concerned. Cimbelos had
authority to direct the activities of Hicks and he could recommend that he be fired.
Hicks was, therefore, bound to obey him to the same extent as if the order came
from Danny Gregg himself.
(8) The conversations between Joseph and Danny Gregg that were overheard by
Strunk and Edmisten, respectively, ring true to the character of both men. They
were just the sort of men who were adept at finding loopholes, and who would be
inclined to regard any person who interfered with their schemes as troublemakers.
Danny Gregg attempted to explain away the "loophole" remark of his father by
testifying that it was made in connection with the Edmisten knifing incident which
occurred in March 1960. According to Danny Gregg, his father said to Edmisten
before the police arrived: "Don't worry, Bob, I do have a little influence down-
town. There are loopholes. Maybe you won't be in any trouble because of this.
I am doing this because I know that you weren't in the wrong . You were attacked."
[Emphasis supplied.] If Edmisten was the one who was attacked and was, there-
fore, not in the wrong, what need was there for influence and loopholes? The
question might also be raised whether influence and loopholes were proper in the
circumstances. Danny Gregg also went a little too far in denying that his father
asked him whether he had gotten rid of the troublemakers. He actually denied that
Jarvis was a troublemaker. If, from this point of view, Jarvis was not a trouble-
maker, what was he?
(9) The Respondent makes much of the fact that neither Jarvis nor Hicks has
been replaced. This is true but all that it shows is that the Respondent could get
along without them, at least for awhile. It is simply another indication that the
Respondent's employment needs are flexible. It is not proof, however, particularly
in view of the record as a whole, that the layoffs of Jarvis and Hicks were not dis-
criminatory. Obviously, the Respondent would have been very ill-advised to replace
either of these employees while unfair labor practice charges against it were still
pending.
E. Conclusions
I conclude that Jarvis was laid off on April 27 and has been denied further em-
ployment since then because of his leadership in compelling the Respondent to abide
MODERN MOTOR EXPRESS, INC. 1445
by the overtime provisions of the union contract.5 His fellow employees participated
in this effort, and their concerted activity was protected by the Act.
I also conclude that the Respondent, while Hicks was employed by it, threatened
to discharge him if he joined the Union, and denied further employment to him on
April 27 because it would then have been necessary for him to join the Union, and
he would then have applied for membership.
The complaint alleges that Jarvis and Hicks were "discharged" by the Respondent.
Literally, they were "laid off" by the Respondent. But they have continuously
been denied any further employment by the Respondent, and it is plain that it
has no intention of offering them any further employment voluntarily. Thus, in
effect they have been discharged. In any event, whether they have been laid off or
discharged, the Respondent has committed violations of the Act. The question is,
therefore, one of pleading, but the Respondent did not raise it at the hearing. By
failing to do so, and participating in the hearing, the Respondent waived any objec-
tion which it might have asserted.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes obstructing commerce and the
free flow of commerce.
V. THE REMEDY
As the Respondent has not engaged in a campaign against the Union as such,
and its violations of Section 8 (a)( I) of the Act were not of an independent nature
but were incidental to its discrimination with respect to the hire and tenure of
employment of Jarvis and Hicks, and are not likely to be repeated, I shall limit the
scope of the recommended order to the remedying of the effects of the discrimina-
tion against these two employees.
So far as affirmative relief is concerned, I shall recommend that the Respondent
offer Lloyd Jarvis full and immediate reinstatement to his former or substantially
equivalent position, without prejudice to his seniority or other rights or privileges,
dismissing, if necessary, any employee who may have been hired to replace him
since the hearing. I shall also recommend that he be made whole by payment to
him of a sum of money which he would normally have earned as wages from the
date of his layoff or discharge to the date that he receives an offer of reinstatement,
less interim earnings during such period, the backpay to be computed on a quarterly
basis as specified by the Board in F. W. Woolworth Company, 90 NLRB 289,
291-294.
Since Robert J. Hicks has enlisted in the Navy, I shall recommend in his case
that the Respondent notify him by registered letter, addressed to his last known
address, that he will be afforded an opportunity to apply for reinstatement within
90 days after discharge from the naval service. So far as his backpay is con-
cerned, it should be limited to the period from April 27, the day that he was
denied further employment, to the date that he was inducted into the naval service,
and to a period from a date 5 days after he applies for reinstatement on his return
from naval service until the date of the Respondent's offer of reinstatement.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. By discriminating with respect to the hire and tenure of employment and the
terms and conditions of employment of Lloyd Jarvis and Robert J. Hicks, the Re-
spondent has engaged in unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act.
[Recommendations omitted from publication.]
5 There is no adequate proof that Danny Gregg observed Jarvis when the latter was
passing out the grievance forms to enable his fellow employees to file claims against the
Respondent But this Is immaterial, since Danny Gregg undoubtedly had knowledge that
he had otherwise taken the initiative.