National Freight, Inc.

National Labor Relations Board - Board Decisions

Aug 20, 1965

154 N.L.R.B. 621 (N.L.R.B. 1965)

NATIONAL FREIGHT, INC . 621
WE WILL bargain collectively, upon request , with the above-named Union,
as the exclusive representative of our employees in the above -described unit,
concerning rates of pay , wages, hours of employment, and other terms and
conditions of employment , and, if an understanding is reached , we will
embody such understanding in a signed agreement.
MARSHALL MAINTENANCE CORP.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 614
National Newark Building, 744 Broad Street , Newark, New Jersey , Telephone No,
Market 4-6151.
National Freight , Inc. and Local Union No . 445, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America . Case No. 2-CA-9319. August 20, 1965
DECISION AND ORDER
On February 16, 1965, Trial Examiner E. Don Wilson issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, Respondent and General Counsel filed excep-
tions to the Trial Examiner's Decision and supporting briefs.
The National Labor Relations Board has reviewed the rulings
made by the Trial Examiner at the hearing and finds that no prej-
udicial error was committed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner except as modified herein with
regard to the discharge of Supervisor Dillin and the remedial order
as to employee Foster.
The circumstances surrounding the terminations of Dillin and
Foster are set forth in detail in the Trial Examiner's Decision.
Briefly, the Respondent was engaged in over-the-road trucking and,
although it had its own trailers, conducted its business by leasing
nearly all its tractors from individual lessors. Dillin owned two
tractors, one of which was driven by Foster, and both men were
terminated because of their membership in the Union.
The Trial Examiner found that Respondent violated the National
Labor Relations Act, 'as amended, by terminating Dillin's lease and
discharging Dillin and Foster because of their respective union
154 NLRB No. 47.
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership. Although we agree that Foster's discharge violated
Section 8 ( a) (3) and (1 ) of the Act, we do not agree that the dis-
charge of Dillin, whom the General Counsel alleged to be a super-
visor, also did so. Absent special circumstances , a statutory super-
visor does not enjoy a protected right to engage in concerted activity
in behalf of a labor orga nization .' The Trial Examiner did not find
and the record does not establish that Dillin's discharge was moti-
vated by other than Dillin's own union membership ? We shall
accordingly dismiss the complaint as to Dillin.
Since Foster was engaged as a driver of one of Dillin's trucks, the
termination of Iillin's leases resulted in the elimination of Foster's
job. Notwithstanding the discriminatory nature of Foster's dis-
charge, if there were than no possibility of Foster 's reinstatement in
a substantially equivalent position , it would follow that although he
would be entitled to reinstatement when such work became available,
lie would not be eligible for backpay during the intervening period
of unemployment .' However, the record fails to indicate whether
or not Respondent may have had available any position in which
Foster might have been employed either at the time of his termina-
tion or at any later date ." Such facts may best be determined in.
compliance proceedings.5 Accordingly, we shall order Respondent
to place Foster on a preferential hiring list and to offer him full and
immediate reinstatement to his former or substantially equivalent
position , when available. If such a position became available subse-
quent to his termination and prior to the date of this Decision and'
Order, lie shall be entitled to backpay from the date such position-
became available to the date of Respondent 's offer of reinstatement,6
to be computed in accordance with the Board 's customary formula.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as,
amended, the National Labor Relations Board hereby orders that
i Accurate Threaded Products Company , 90 NLRB 1364 ; Gibbs Automatic Division,
Pierce Industries Inc, 129 NLRB 196; Massey -Harris-Ferguson , Inc, 114 NLRB 328, 337;
of. Inter- City Advertising Company of Greensboro, N.C., Inc., 89 NLRB 1103, 1106-1108,
enfd as modified 190 F 2d 420 (C.A. 4).
2 Compare Jackson Tile Manufacturing Company, 122 NLRB 764, enfd. 272 F. 2d 181
C.A. 5), where the Board concluded that a supervisor 's discharge violated Section 8(a) (1)
upon finding that the discharge was motivated by the supervisor' s refusal to commit
unfair labor practices against rank -and-file employees . To a similar effect , see Talladega
Cotton Factory Inc, 106 NLRB 295, enfd. 213 F 2d 209 (CA. 5).
8 Cf. The Bed ford -Nugent Corp ., et al. , 151 NLRB 216
* The record shows that Respondent had at least one tractor of its own but is not
entirely clear as to who was assigned as its operator or whether Respondent had avail-
able any other positions comparable to that of Foster's former employment.
5 Goldblatt Bros., Inc., 135 NLRB 153, 159-160
6 See Falarski Sausage Company , 128 NLRB 506 ; Stockbridge Vegetable Producers,.
Inc., 131 NLRB 1395.
7F. W. Woolworth, 90 NLRB 289 ; Isis Plumbing & Heating Co ., 138 NLRB 716
NATIONAL FREIGHT, INC. 623
the Respondent, National Freight, Inc., Orangeburg, New York, and
Vineland, New Jersey, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Unlawfully interrogating employees about their union activ-
ities or threatening them with reprisals for engaging in such activity.
(b) Discouraging membership in the Union or any other labor
organization by discharging or otherwise discriminating in regard
to hire or tenure of employment of any employee.
(c) In any other manner interfering with, restraining, or coerc-
ing its employees in the exercise of their right to self-organization,
to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in other,
concerted activity for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities,
except to the extent of such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment as authorized by Section 8(a) (3) of the Act, as amended.
2. Take the following affirmative action designed to effectuate the
policies of the Act :
(a) Offer John Swann and Alfred Osterhoudt immediate and
full reinstatement to their former or substantially equivalent posi-
tions without prejudice to their seniority or other privileges previ-
ously enjoyed and make them whole for any loss of pay they may
have suffered by reason of their discharges, in the manner set forth
in the section of the Trial Examiner's Decision entitled "The
Remedy."
(b) Offer Philip S. Foster immediate and full reinstatement to
his former or substantially equivalent position without prejudice to
his seniority or other privileges previously enjoyed, in the following
manner. If such position became available subsequent to his termi-
nation and prior to the date of this Decision and Order, make him
whole for any loss of pay he may have suffered as a result of the
discrimination against him or, if such position has not become avail-
able, place him on a preferential hiring list and, in preference to any
other person, offer him employment when such employment for
which he is qualified becomes available, all in the manner and to the
extent set forth in this Decision and Order.
(c) Notify each of the above-named individuals if presently
serving in the Armed Forces of the United States of their right to
full reinstatement upon application in accordance with the Selective
Service Act and the Universal Military Training and Service Act of
1948, as amended, after discharge from the Armed Forces.
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of backpay
,due and all other rights under the terms of this Order.
(e) Post at its operations at Orangeburg, New York, and Vine-
land, New Jersey, copies of the attached notice marked "Appendix." 8
{Copies of said notice, to be furnished by the Regional Director for
Region 2, shall, after being duly signed by the Company's represent-
ative, be posted by the Company immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted. The Company shall take reasonable steps to
insure that said notices are not altered, defaced, or covered by any
,other material.
(f) Notify the Regional Director for Region 2, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
8 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 "a Decision and Order " the words "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 :
WE WILL NOT interrogate employees about their union activ-
ities in a manner constituting interference, restraint, and coer-
cion in violation of Section 8 (a) (1) of the Act.
WE WILL NOT threaten our employees with reprisals for en-
gaging in union activity.
WE WILL NOT discourage membership in any union by dis-
charging or otherwise discriminating in regard to hire or tenure
of employment of any employee.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-orga-
nization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and
to engage in other concerted activity for the purpose of collec-
tive bargaining or other mutual aid or protection, or to refrain
from any or all such activities.
NATIONAL FREIGHT, INC. 625
WE WILL offer to Philip S. Foster, John Swann, and Alfred
Osterhoudt immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their
seniority or other privileges, and make them whole for any loss
of pay they may have suffered by reason of their discharges,
together with interest at the rate of 6 percent, in the manner and
form set forth in the Board's Decision and Order.
Al] our employees are free to become or remain members of any
labor organization.
NATIONAL FREIGHT, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NoTE.-We will notify the above-named individuals if serving in the
Armed Forces of the United States of their right to full reinstate-
ment upon application in accordance with the Selective Service Act
and the Universal Military Training and Service Act of 1948, as
amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 745 Fifth Avenue, New York Telephone No. 751-5500, if they
have any question concerning this notice or compliance with its
provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Pursuant to due notice , a hearing in this matter was held before Trial Examiner
E. Don Wilson, at New York, New York, on July 14 through July 17, 1964. The
parties fully participated . Briefs have been received and considered. Upon a
charge filed by Local Union No. 445, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America , herein the Union, the General
Counsel of the National Labor Relations Board , herein called the Board , on May 28,
1964, issued a complaint and notice of hearing. The complaint alleged that
National Freight , Inc., herein called Respondent , violated Section 8(a)(1) and (3)
of the National Labor Relations Act, herein called the Act. The complaint was
subsequently amended to allege other violations of Section 8 (a) (1) of the Act.
Due answers were filed.
Upon the entire record , and my observation of each and all witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent , at all material times, has been a corporation organized under, and
existing by virtue of, the laws of the State of New Jersey . During the same times,
it has maintained its principal office and terminal in Vineland , New Jersey, and
various other terminals and places of business in the States of New Jersey, New
York, and Pennsylvania , including a station at Orangeburg , New York, where it is,
and has been at material times, continuously engaged in performing motor freight
carrier and related services . In 1962, a year representative of its annual operations,
206-446-66-vol. 154-41
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent, in the course and conduct of its business, purchased and caused to be
transported and delivered to its places of business, trucks, truck parts, oil, etc.,
valued in excess of $50,000, of which goods and materials valued in excess of
$50,000 were transported and delivered to its terminals and places of business in
interstate commerce directly from States of the United States other than the States
in which Respondent is located. During the same period, Respondent performed
services valued in excess of $50,000, of which services valued in excess of $50,000
were performed in, and for various enterprises located in, States other than the
States wherein it is located.
Respondent is, and has been at all times material, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the Act.
H. THE LABOR ORGANIZATION
The Union is, and has been at all times material, a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
(1) In April 1963,' did Respondent discharge its employees 2 Alfred Osterhoudt,
Philip Foster, and John Swann because of their union activities, and Supervisor
Arthur Dillin because of his union activities; (2) did Respondent unlawfully in-
terrogate employees as to union activities and unlawfully threaten employees with
reprisals should they engage in union activities; and (3) did Respondent unlaw-
fully utilize application forms for employment to ascertain if applicants were mem-
bers of a union.
B. Background: The hiring of the discriminatees
1. Osterhoudt
Having seen Respondent's newspaper advertisement in September 1962, Oster-
houdt phoned Nathan Rosen, Respondent's terminal or station manager at Re-
spondent's Orangeburg, New York, operation. Pursuant to Rosen's direction,
Osterhoudt thereupon met Rosen at Orangeburg. Osterhoudt explained that he
did not own a tractor but said he would purchase a new one if he had a written
lease as evidence of the work for which the tractor would be used by him. Rosen
and he executed a lease and Rosen also gave Osterhoudt a list of phone numbers to
present should he need "security."
Osterhoudt phoned Rosen early in January and said he had the new tractor.
Pursuant to Rosen's instructions, Osterhoudt drove it to Respondent's main terminal
at Vineland, New Jersey. He there filled out an application for employment and
insurance papers. He was advised that although he had his own insurance, he could
not work for Respondent unless he insured through Respondent.3 He received an
identification card. Again he signed a long-term lease with Respondent .4 He
reported for work on January 7 and was, about that time, directed by Rosen to
maintain his daily logsheet in a fashion which would not reveal the actual number
of hours he worked. It was made clear to him that under his lease he was to use
his tractor exclusively for Respondent. He was given a list of phone numbers to
call should he have a problem. During the course of his employment he sub-
mitted daily logsheets and equipment reports.5
2. Dillin and Foster
In December 1962, Dillin phoned Rosen at Orangeburg and said he had two
tractors, one licensed and the other not. He stated it would be if it could be used.
' Unless otherwise stated , all dates hereinafter refer to 1963.
2 Primarily basic as an issue is whether Respondent had employees.
8 Respondent had a master policy.
' The lease Is not terminable at the will of the employer. See General Counsel's Ex-
hibit No. 19, paragraph 11. Further , the lessor is Margie's Trucking Corp., a corpora-
tion owned by Osterhoudt and his wife. Although , in terms, with the corporation, it
Is plain that the parties understood Osterhoudt to be a party.
5 This was required of all owner-operators and drivers and Rosen signed them before
they went to Vineland.
NATIONAL FREIGHT, INC. 627
On January 3, Dillin and Foster visited Rosen. Rosen then learned that Dillin's
tractors could not pull 40-foot trailers because such, in combination with either of
Dillin's trailers would exceed New York State's 50-foot maximum length. Rosen
said that Dillin's tractors could be used to pull Army trailers (28 feet in length) and
35-foot trailers. Pursuant to Rosen's instructions, Dillin and Foster, with Dillin's
tractor, went to Vineland to confer with Respondent's safety director and his assist-
ant, Edward Downey and Al Lewis, respectively.6 Downey gave each of them an
application for employment and each filled one out. The tractor was measured
and because of the position of the "fifth wheel" it was again determined that the
tractor could not be used to pull a 40-foot trailer. A "fifth wheel" is a steel
plate approximately 20 inches in diameter which is situated at the rear of a tractor
so as to join the tractor and trailer together. Dillin and Foster each took a road
test. Foster was told he'd be put on the second tractor when it became available.
Respondent's insurance papers were made out for Dillin. Dillin executed a lease 7
of the tractor to Respondent. Dillin was given an employee identification card and
instructions as to what to do in the event of an accident.8
Dillin began driving the one tractor for Respondent about January 3. He regu-
larly used Foster as a helper. When this was for Dillin's convenience, Dillin paid
Foster. When the bill of lading required the use of a helper, Respondent paid
Foster by its check.
Early in March, when Dillin advised Rosen that the second tractor 9 was avail-
able for use, Respondent assigned it a number and forwarded Dillin a certificate of
insurance. Dillin obtained a license. No lease was executed. Foster began to
drive this tractor on March 5.
3. John Swann
Maret Guignard was a multiple owner-driver for Respondent. He had three
tractors under lease to Respondent. In January, on a part-time basis, alternating
with his brother George, John Swann, hereinafter called Swann, began to drive
one of Guignard's tractors. In mid-February, Swann drove on a full-time basis,
his brother ceasing to drive. Rosen gave him most of his assignments, although he
also received some from Guignard. On March 23, Swann signed an application
to join the Union. A few days later, having requested one, he signed Respond-
ent's form of application for employment and stated thereon that he was a member
of the Union.
C. The employment status of Osterhoudt, Dillin, Foster, and Swann
General Counsel contends that Osterhoudt, Foster, and Swann were Respond-
ent's employees and that Dillin was Foster's supervisor.10 Respondent, to the con-
trary, contends that Osterhoudt and Dillin 11 were independent contractors and that
Foster was Dillin's employee but not an employee of Respondent and Swann was
the employee of independent contractor Guignard and not an employee of
Respondent.
In National Freight, Inc., 146 NLRB 144, the Board has already, in a repre-
sentation case, determined that owner-drivers and nonowner-drivers are employees
of Respondent. In the same decision it was found that multiple owner-drivers 12
are not independent contractors although they are Respondent's supervisors within
the meaning of the Act. In its decision the Board set forth in detail the relevant
and material or ultimate facts upon which the decision was based. At the hearing
herein, citing Leonard Niederitter Company, Inc., 130 NLRB 113, footnote 2, I
ruled that the Board's earlier decision in the representation case above cited was not
binding upon me or conclusive as to the status of nonowner-drivers, owner-drivers,
6 The record makes clear that each of these individuals is a responsible representative
of management. In light of findings hereinafter to be made that each had authority
effectively to recommend the hire or to hire drivers or owner -drivers, I find them to be
supervisors within the meaning of the Act. Respondent 's position with respect to these
men is that they can't be supervisors because Respondent has no employees. Respondent
does not maintain that they cannot enter into leases or effectively recommend entering
into a lease.
7 All leases were same as Osterhoudt's.
6 Such was usual but not universal.
0 Also overlength so far as 40-foot trailers were concerned.
W And Guignard was Swann 's supervisor.
n And also Guignard.
22 Such as Dillin and Guignard.
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or multiple owner-drivers. All parties to the instant proceeding were afforded a
full and complete opportunity to adduce evidence on the issues of employee, super-
visor, or independent contractor status of the individuals involved. They availed
themselves of this opportunity. Having studied the entire record, including the
Board's Decision in the representation case, 146 NLRB 144, of which I took official
notice and which I find to have "some persuasive relevance ," 13 I find no evidence
of a substantial nature which would occasion me to find contrary to the Board's
Decision in the representation proceeding. Based upon the entire record before me,
including the persuasively relevant Board Decision, I find Dillin and Guignard were
Respondent's supervisors within the meaning of the Act, and Foster, Swann, and
Osterhoudt were employees of Respondent within the meaning of the Act.14
D. Respondent's efforts to combat the employees' union and concerted activity,
including the discharges 15
As of March 23, the Union was attempting to organize Respondent's Orangeburg
employees and Swann, Foster, Seward, Osterhoudt, Dillin, and Guignard signed
authorization cards for the Union on that date. On March 26, the Union filed a
petition with the Board.
A few days later, Rosen, in the Orangeburg office, in the presence of Swann,
Alex Merlin Seward, herein called Seward, an employee, and perhaps other em-
ployees, stated to those present, "Any man that belongs to Local 445 will no
longer work in this yard."
On April 9, Osterhoudt went to the office for his pay after completing a trip.
Rosen gave Osterhoudt his check, saying Respondent "would never be union."
Osterhoudt, as he was leaving, said, "I'll see you." Rosen replied, "You'll never
see me again."
On April 10, Osterhoudt phoned Rosen. He inquired whether he had an assign-
ment. Rosen told Osterhoudt he was fired.
On April 11, in a phone conversation, Rosen asked Dillin if he had signed a
card for the Union, or had anything to do with the Union. Dillin replied that he
had made no secret on his form of application for employment that he was a
member of the Union. Rosen inquired if Dillin had signed "a petition against
National Freight" 16 and Dillin denied doing so. Rosen told Dillin it would go
bad with him if he had and "one fellow has already been fired." Dillin inquired
if it were Tom Drake 17 and Rosen said it was Osterhoudt. Rosen told Dillin that
Drake, Osterhoudt, Foster, and Dillin had signed the petition.
Around April 11 or 12, Foster returned, from a trip, to the office. He filled out
the driver's log and trip report and gave them to Rosen. As he was about to
leave, Rosen asked him if he had joined the Union and Foster said yes. Rosen
said, "You know you can be fired for that," and Foster replied Respondent
couldn't do it because it would be against the law. Rosen told him to wait and
see Downey about that problem. Foster waited and Downey showed up about
IB Cf. N.L.R.B. v. Southern Airways Company, 290 F. 2d 519 , 523 (C.A. 5) ; see Cabinet
Manufacturing Corporation, 140 NLRB 576, 585.
It In the record before me there is evidence which would occasion some findings con-
trary to or expanding on those made by the Board in the representation case; however,
I find such differing findings not to be substantial . The substantial and material evidence
in this case leads inevitably to the same decision reached by the Board in the representa-
tion case.
15 The findings made herein are based upon a composite of the testimony of all wit-
nesses. Testimony contrary to these findings is not credited. I particularly find that
Rosen impressed me as a dishonest witness. His claimed lack of recollection as to
what he told a Board investigator or whether he talked to one appears to me to be a
deliberate misstatement . He changed from lack of recollection to a statement that he
did talk to an investigator and then to a statement that he "probably did" and then that
he did. He denied that he was in an automobile with Foster , Guignard , and Downey.
He then said he didn't recall. He then said he didn't think he was. He then said he
was not, when a date was broadly fixed. He later said he didn't recall. He said he
didn't know if he had told an investigator of the Board that he was in the car. Rosen
impressed me as a witness who wished to serve Respondent's interests , as he saw them,
without regard to the truth, and the testimony noted is but an example evidencing such
disposition.
Is It is plain to me that Rosen considered the Union's petition for an election, as
"against" Respondent.
17 Apparently an employee.
NATIONAL FREIGHT, INC. 629
2 hours later. After exchanging pleasantries with those present in the office,
Downey asked Guignard, Rosen, and Foster to step outside the office. Swann
attempted to join them but Rosen directed him to remain. Downey, Guignard,
Rosen, and Foster went to and entered Rosen's car. Once in the car, Downey
asked Foster why he had joined the Union.is Foster replied he had done so for
higher pay, union benefits, and to better himself . Downey said Respondent "could
not accept any union in there at all, that they would get rid of all the owner-
operators and put their own men and equipment on." Rosen asked Foster if he
thought he would get any benefits from the Union. Downey asked Guignard if
he had signed a union card.
About 20 minutes after they left, Rosen, Downey, and Foster returned to the
office. Downey said , in the hearing of Swann , that Respondent could not recog-
nize the Union 's contract offer because it would make Respondent go broke.
On Apnl 15, Dillin phoned Rosen to find out about a load for the next day.I9
Rosen advised him and put Downey on the phone. Downey inquired what dis-
agreements the employees had with Respondent. Dillin described some and sug-
gested a meeting. Downey indicated he was busy but might see thelll Wednesday.
Downey, in the conversation, said that if Respondent "went union; it would have
to go all the way, a national contract." They then arranged to meet Wednesday
afternoon, April 17.
Dillin worked Tuesday and Wednesday. On the latter day, Dillin returned to
Orangeburg in the early afternoon. He inquired of Rosen as to whether Downey
would be present. Rosen replied that Downey was in Vineland and wouldn't be
present. Dillin inquired about an assignment for the next day and was told "both
tractors were released, the lease had been cancelled." 20 The reason given by
Rosen was that, legally, the tractors could not pull 40-foot trailers. Dillin said
Rosen knew that when they first met. A few days later Dillin received written
confirmation that his lease was canceled. Respondent's letter reads as follows:
Mr. ARTHUR J. DiLLIN
502 Route 59A
West Nyack, New York
April 19th, 1963
Dear Mr. Dillin: As you know, a safety inspection was conducted at Orange-
burg, New York, on Monday, April 15th, 1963. This inspection revealed
that your tractor No. 727 was over-length by fourteen inches. The same is
true for your Tractor No. 721.
The Regulations in the States of New York, New Jersey, Connecticut, Rhode
Island and Massachusetts, concerning the maximum permissible length of
tractors, plus trailers, limits the over-all length to fifty feet.
The use of your equipment with our trailers, subjects this Company to fines
for violation of these State laws. Therefore, I regret that I have no alterna-
tive but to terminate the Leases on your equipment, effective April 17th, 1963,
pursuant to Paragraph 8 of the Lease Agreement, since the use of your equip-
ment does not comply with the various State Regulations concerning maximum
permissible length of tractors and trailers.
If you secure equipment in the future which meets these maximum length
requirements, we shall be more than happy to discuss with you the Lease of
such equipment.
Very truly yours,
KEM: MPS NATIONAL FREIGHT, INC..
c.c. N. Rosen (S) Karl E Mueller
H. Kaplan KARL E. MUELLER
Special Delivery Administrative Assistant
Certified Mail, Return
Receipt Requested.
On Sunday, April 28, at Rosen's direction, Guignard brought his subordinates,
Swann and Seward, to the Orangeburg office to see Rosen. While there, Rosen
gave separate envelopes to Guignard, Swann, and Seward. Each envelope con-
tained a paper which would indicate whether a signer of the paper had signed an
authorization card for the Union. Rosen told each he wanted him to sign the paper,
"yes or no." Swann said he had already told Respondent he had signed a union
card when he had filed his form of Application for Employment with Respondent.
ss Downey did not testify.
19 Tuesday.
° Of course, this effectively terminated Foster's employment
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He refused to sign the paper . Seward said he had not signed a union authorization
card. He, too, declined to sign Rosen 's paper. He explained that he might wish to
join the Union someday and did not wish to have the signing of the paper used
against him. Guignard wrote "Yes" on his paper and signed it. The three papers
and envelopes were returned to Rosen.
While returning to Swann's home in Guignard's car, Swann asked Guignard what
time he should pick up the trailer the next morning, Guignard said he would call
and find out 21
For several weeks, while one of Guignard's trucks was broken down, Seward,
who had more seniority than Swann, was either driving one of Respondent's trac-
tors 22 or acting as a helper and not a driver under Guignard. During this time,
Swann regularly drove one of Guignard's tractors. On Monday, April 29, Guignard
picked up Seward and drove him to Swann's house. On the way, he told Seward he
was to drive Swann's tractor. Seward asked why. Guignard replied Seward had
more seniority and "besides Mr. Swann is a union man." Thereafter, Swann did not
drive for Respondent or its supervisor Guignard. For 2 weeks, twice a day, Swann
called Guignard for an assignment. He received none. Finally, Guignard told
Swann he wasn't being called to go to work because Rosen didn't want him since
he was a union man. Guignard quoted Rosen as saying Respondent couldn't take
Swann back because he was a union man.
E. Respondent's proffered defenses
Respondent did not call Downey as a witness. I have already found the testimony
of Rosen undeserving of credit unless corroborated by otherwise credited evidence.
Thus, the credited testimony of Dillin, Foster, Swann, Osterhoudt, and Seward as
to interrogation and threats stands either undenied or denied only by incredible
testimony of Rosen. Respondent's contention that Downey interrogated Foster and
Guign,ard in Rosen's car as to whether they had signed union cards only for the
purpose of determining whether cards had been forged, loses all force when it is
recognized that Downey asked Foster "why" he signed a union card. Further,
Rosen, after already knowing from Downey's interrogation that Guignard had signed
a union card, asked Guignard as well as Swann and Seward to state in writing
whether they had signed cards. I find the particular attempt at defense to be an
attempt to cover up a clear violation of the Act.
Respondent contends that it terminated Osterhoudt or "the Margie's Trucking
Company lease" for cause. It contends the cause consisted of Osterhoudt being
late for a delivery which occasioned a warning of "discharge," and then a failure by
Osterhoudt to unload a truck, occasioning the employment by the consignee of
several young men to do the unloading.
As to the first occasion, Osterhoudt failed to make a delivery to Allston, Mas-
sachusetts, on time. He had been stuck on a hill because of ice, in March. He was
several hours late. He called neither the consignee nor Rosen before he made the
delivery. He didn't call Rosen because no phone was available while he was stuck
and he didn't want to take up time to phone Rosen when he became free. When
Osterhoudt arrived at the consignee he called Rosen. Rosen told Osterhoudt the
consignee was very upset at his lateness and Respondent might lose the account.
Nothing was said about termination of the lease and in the conversation Rosen told
Osterhoudt "not to worry about it." Plainly, there was no warning of discharge.
The second occasion of alleged dereliction which was allegedly the proximate cause
of Osterhoudt's discharge involved a delivery by Osterhoudt to the Washington
Bottling Company in Worcester, Massachusetts, on March 23. As to what actually
happened in connection with this delivery, no one but Osterhoudt gave testimony.23
When Osterhoudt arrived at Washington Bottling he talked to a foreman or someone
else in authority. This person told Osterhoudt he could start unloading and he had
some young boys coming in at noon who would help him finish. Osterhoudt said
he had been running so many hours he had a job to keep his eyes open.24 He said
he'd wait for the boys and in the meanwhile "would get some shut-eye." The fore-
man said nothing. Osterhoudt went to sleep in the tractor and when he woke up
the trailer was unloaded. Hal Kaplan,25 director of operations for Respondent,
testified he told Rosen about 21/2 weeks later to discharge Osterhoudt because he
21 Presumably from Rosen.
22 Leased from someone other than Guignard.
21 Such is credited.
26 There is no evidence as to bow long Osterhoudt had worked without rest.
23 His demeanor impressed me unfavorably.
NATIONAL FREIGHT, INC. 631
received an interoffice memorandum of the Glenshore Glass Co. about the Washing-
ton Bottling delivery. He said he first saw this memorandum about 10 days after
Rosen sent it to him. Kaplan was completely unconvincing, when he testified, as to
why he had not seen the memo much earlier. I do not believe, having observed
Kaplan, that he would leave his office for 1 or 2 weeks and no one would open a
letter addressed to his attention. It is inconceivable to me that Rosen would mail
to Kaplan what might be considered a serious complaint about Respondent's opera-
tions and so address the envelope to insure that only Kaplan could see it, particularly
since Kaplan had an "associate" that worked "fairly close" with him and who could
be described, according to Kaplan, as "the Director of Terminal Operations,"
particularly since Rosen was a station or terminal manager and the memo involved
station or terminal operations. No letter of discharge was sent to Osterhoudt until
April 19. It was sent pursuant to Kaplan's instructions and, reads as follows:
Margie's Trucking Corporation
67-34 Selfridge Avenue
Forest Hills, New York
(Attention: Alfred C. Osterhoudt)
April 19th, 1963
Dear Mr. Osterhoudt : It has been brought to my attention by the Director
of Operations that despite several previous warnings , you have failed on
numerous occasions to meet the required delivery times as specified by our
customers on the Bills of Lading. As you know, the success or failure of this
Company is entirely dependent upon the service that we render to our shippers
and consignees . Your continued lack of concern for the importance of cus-
tomer service and satisfaction , has resulted in a number of customer complaints,
and has caused considerable embarrassment to the management of this Com-
pany. This intolerable situation cannot continue any longer.
Therefore , this is to advise you that we have no alternative but to cancel our
Lease with Margie's Trucking Corporation , effective April 11th, 1963. This
action is being taken pursuant to Paragraph 11 of the Lease , in that Margie's
Trucking Corporation has breached Paragraph 5 of the Lease , by failing to
meet the specified delivery times.
Very truly yours,
KEM:MPS
NATIONAL FREIGHT, INC.,
c.c. N. Rosen (S) Karl E. Mueller
H. Kaplan KARL E. MUELLER
Special Delivery Administrative Assistant
Certified Mail, Return
Receipt Requested.
Kaplan could not account for the delay in sending the letter. Kaplan made no
"investigation to see whether or not the facts contained" in the interoffice memo of
Glenshore Glass were correct. It is clear to me that he never asked Rosen what
happened. This is particularly strange since the memo refers to Osterhoudt getting
"needed sleep." Further, the delay from March 23 to April 9 and from April 9 to
April 19, in itself, raises serious questions as to whether the delay was not utilized
so as to come up with a plausible pretext. It is significant that the letter of discharge
makes no reference to the failure to unload, Osterhoudt's sleeping, or the entire
March 23 incident as an occasion, let alone a cause, of the discharge. Further, I find
no substantial evidence of "several warnings" or "numerous occasions" when
Osterhoudt failed to meet required delivery times or his "continued lack of con-
cern." I find that the reasons proffered by Respondent for its discharge of Oster-
houdt are pretexts.
Respondent urges three reasons for terminating Dillin and Foster: (a) A warning
by a New York State policeman that if Respondent had an overlength tractor-trailer
on the road, the trailer would be impounded and Respondent would be fined; (b)
the inability of Dillin to move his "fifth wheels" so as to have 40-foot trailers and
still comply with the law; and (c) a lack of 35-foot and Army trailer work for
Dillin's trailers.
The only evidence that a New York State policeman warned Respondent about
overlength tractor-trailers was given by Rosen. No citation was alleged to have
been given. Overlength driving had regularly been engaged in by two drivers in
addition to Dillin and Foster. There is no evidence that anyone had ever received
a ticket for the violation. The policeman's name or number was unknown or not
given. Rosen and Downey allegedly took various steps with respect to the tractors
of the other two drivers and those of Dillin and Foster. Allegedly the other two
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drivers could and did move their "fifth wheels." Neither testified. The policeman
did not testify. Downey did not testify. I do not credit Rosen's testimony. Such
testimony as Kaplan gave did not corroborate Rosen's testimony that the policeman
gave the warning since it was, at best, hearsay in this regard. I find no credible
evidence that the warning was given.
Dillin's inability to move the "fifth wheels" was known to Respondent before
Dillin and Foster were hired. I cannot see how such inability was no impediment
to their employment or their continued employment but was all of a sudden a cause
of their discharge.26 Again, the evidence in support of this alleged cause is based
solely on the testimony of Rosen,27 whose testimony I do not credit 28
In April, when Dillin and Foster were terminated the number of Army trailers
and 35-foot trailers hauled by Respondent decreased to 32 from 41 in March. In
May, the number of Army trailers and 35-foot trailers hauled by Respondent
increased to 61, a number exceeded only in January. Why Dillin and Foster were
not recalled in May, is not explained in any way, nor is the failure to use them for
such work as was available. Particularly noteworthy is Respondent's contention that
neither Dillin nor Foster objected to moving overlength loads and "Rosen was con-
cerned with moving freight and when he thought they could get away with it, he
sent overlength loads on the road." 29 While not agreeing with Rosen's admitted
philosophy or code of ethics, it is manifest to me that Respondent's alleged concern
about "overlength" is an afterthought offered to conceal its proven illegal motive
for terminating Dillin and Foster.
That the reasons offered by Respondent for terminating Dillin and Foster were
mere pretexts is confirmed by Respondent's April 19 letter to Dillin. It has been
noted that before Respondent ever leased one of Dillin's tractors, Respondent knew
it was overlength. The April 15 "safety inspection" revealed nothing new to
Respondent. Respondent, clearly, was aware of legal length requirements at all
material times. The letter makes no reference to an alleged recent attempt to
enforce the State law, which was allegedly the real reason for the terminations.
Having considered the entire record, I find the alleged "causes" for the termina-
tions of Dillin and Foster to be pretexts. By this, I do not suggest that Respondent
should have continued to assign Dillin and Foster so to drive tractors that when in
combination with 40-foot trailers they would violate State laws. I do mean that
Respondent through Rosen, Downey, and others made it abundantly clear that it
was not concerned with State laws concerning "overlength" until the union activities
of Dillin and Foster became a matter of urgent concern. Further, while the work
of Dillin and Foster in hauling Army and 35-foot trailers might have been curtailed
in April, there has been no proven legitimate need for entirely dispensing with their
services.
Respondent contends that Swann was discharged because Guignard had only one
tractor for Swann and Seward to drive and he assigned Seward rather than Swann
to the tractor because Seward had seniority over Swann 36 This contention must be
evaluated in light of previous factfindings herein. Swann and Seward testified
credibly that Guignard said he couldn't take Swann back because Rosen didn't want
him since he "was a union man."
Until the date of Swann's discharge, Guignard gave him preferential treatment
over that given to Seward. It was not until immediately after Swann's open and
21Rosen described the absurd situation of Downey measuring the length of Dillin's
tractor or tractors by use of a tape measure immediately before the discharge of Dillin
and Foster-absurd because Rosen knew the answer, as did Downey, before Dillin and
Foster were hired.
21 Excepting, of course, the fact that the tractors were too long legally to pull 40-foot
trailers.
In this particular instance, Rosen first testified that he told Dillin on April 15 that
his tractors couldn't be used any more. It was not until after it was stipulated that
one of Dillin's tractors was used thereafter that Rosen said Dillin was advised on April 17
21 There is no credible evidence he has ever thought he could not "get away with it."
i° Guignard's demeanor impressed me unfavorably . Also, he appeared to be a witness
who was disposed more to serving Respondent 's interests, as he saw them , than serving
the interests of truth and justice. I credit Swann 's and Seward's testimony where it con-
tradicts that of Guignard.
NATIONAL FREIGHT, INC. 633
frank statement of his union feelings and actions to Rosen and Guignard that
Guignard discharged Swann and this happened the next morning .31 The timing is
not without significance . I find Respondent 's contention that Swann rather than
Seward was discharged because Seward "had more seniority" is a mere pretext to
conceal the genuine reason of eliminating Swann from Respondent 's employ because
he was an admitted union member.
F. Respondent's interrogation of applicants for employment
During material times, Respondent used a form of "application for employment"
which required applicants to state if they were "affiliated with a labor union" and,
if so, to state the "Local" and "Ledger No." The record indicates the form was
discontinued in June when Respondent learned such form might be violative of the
Act. There is no evidence that Respondent intends to use the form again.
Respondent says it will not. I believe Respondent's statement that it will not ask
the same or any similar question on an application form. Use of the form was a
violation. Since I do not believe there will be a similar violation I find no need
for a remedy other than the one I shall recommend.
Concluding Findings
On various dates described hereinabove, Respondent interrogated employees about
their union activities and threatened them with various reprisals should they engage
in or continue to engage in union activities. By such acts, Respondent violated
Section 8 (a) (1) of the Act.
On various dates specified above, Respondent violated Section 8(a)(3) of the Act
by discharging or causing the termination of Osterhoudt, Foster, and Swann because
they engaged in and continued to engage in union activities. That the alleged
causes for the discharges or terminations were pretexts confirms this finding.
By discharging Dillin because of his union activities, even though Dillin was a
supervisor, Respondent violated Section 8(a)(1) of the Act. It is clear that the
discharge was not for the purpose of preserving neutrality. Dillin's discharge
demonstrated "graphically to rank-and-file employees the extreme measures to which
the offending [Respondent] will resort in order to thwart them in their desires to
join or assist a labor organization ." 32 By discharging Dillin for his union activities,
Resnondent caused the employees to fear similar reprisals. That Dillin's discharge
was for union activities is confirmed by the pretextual nature of the reasons assigned
for his discharge.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent 's activities as set forth in section III, above, occurring in connection
with the operations of Respondent set forth 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 thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative of
Section 8(a)(1) and ( 3) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act.
Having found that Respondent discriminatorily discharged Osterhoudt, Foster,
and Swann in violation of Section 8(a) (1) and ( 3) of the Act and similarly dis-
charged Dillin in violation of Section 8 (a) (1) of the Act, I shall recommend that
Respondent offer these employees and Dillin immediate and full reinstatement to
their former or substantially equivalent positions,33 without prejudice to their senior-
ity and other rights and privileges, and that Respondent make them whole for any
31 After Guignard was going to call to find out about an assignment.
32 Jackson 1'sie Manufacturing Company, 122 NLRB 764, 767.
33 This does not mean Respondent must assign Dillin or Foster to driving loads which
will be violative of the laws of a State wherein the driving is to take place.
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
loss of earnings they may have suffered by reason of the discrimination against
them, by paying each a sum of money equal to the amount that each would normally
have earned as wages from the date of the discrimination to the date of offer of
reinstatement less his net earnings.34 The backpay shall include interest at 6 percent
to be computed in the manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716.
The above discharges strike at the heart of rights guaranteed employees by the
Act and are closely related to other conduct abridging rights guaranteed employees
by Section 7 of the Act. There is reasonable ground to anticipate Respondent will
infringe upon other rights guaranteed employees in the future, unless appropriately
restrained. I shall therefore recommend an order requiring Respondent to 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, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of the
Act.
2. The Union is a labor organization with the meaning of the Act.
3. By discriminatorily discharging Osterhoudt, Swann, and Foster, as found above,
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (3) of the Act.
4. By interfering with, restraining, and coercing employees in exercising the rights
guaranteed them by Section 7 of the Act, including the discharges of the above-
named employees and of Supervisor Dillin, for engaging in union activities, and
interrogations and threats, Respondent has engaged 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.
[Recommended Order omitted from publication.]
84 F. W. Woolworth Company, 90 NLRB 289.
District Lodge No. 94, Lodge No . 311, International Association of
Machinists, AFL-CIO (Parker Aircraft Co.) and Colin Shep-
hard Sinclair. Case No. 31-CB-11 (formerly 21-CB-2450).
August 20,1965
DECISION AND ORDER
On April 30, 1965, Trial Examiner Louis S. Penfield issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in certain unfair labor practices and recommending
that it cease and desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision. Thereafter,
Respondent filed exceptions to the Trial Examiner's Decision accom-
panied by a brief in support thereof.
The National Labor Relations Board has reviewed the rulings
made by the Trial Examiner at the hearing and finds that no prej-
udicial error was committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision, the exceptions
154 NLRB No. 50.