Nebraska Bulk Transport

National Labor Relations Board - Board Decisions

Jan 24, 1979

240 N.L.R.B. 135 (N.L.R.B. 1979)

NEBRASKA BULK TRANSPORT 135
Nebraska Bulk Transport, Inc. and General Drivers
and Helpers Union, Local No. 554, affiliated with
the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Cases 17-CA-7767 and 17-CA-7868
January 24, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On July 18, 1978, Administrative Law Judge Roger
B. Holmes issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and
to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Nebraska Bulk Trans-
port, Inc., Bennet, Nebraska, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order, except that the at-
tached notice is substituted for that of the Adminis-
trative Law Judge.
'Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products. Inc.. 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 We agree that Respondent's knowledge of union activity of employees
Roger Grant and Dennis Miller prior to their terminations can be inferred
from the following: (I) Respondent's statement to an employee the week
after the discharges that. "I think I got rid of the ones that started it": (2)
the proximity of both discharges to telegraphic notice of union activity re-
ceived by Respondent; (3) Respondent's discharge of Grant. allegedly be-
cause of his dnving record. in which it developed an urgent interest after
learning of union activity. in contrast to its previous statement to Grant that
this record was not important; (4) the two employees most active on behalf
of the Union were the only ones discharged: and (5) the small number of
employees in the plant (about 15).
240 NLRB No. 14
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate the wife of one of our
employees, and we will not interrogate an em-
ployee regarding the union activities of our em-
ployees.
WE WILL NOT engage in surveillance of the
union activities of our employees.
WE WILL NOT threaten our employees that we
will close our facility, sell our trucking equip-
ment, and lease our hauling operations to lease
operators because our employees select General
Drivers and Helpers Union, Local No. 554, affi-
liated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organi-
zation, as their collective-bargaining representa-
tive.
WE WILL NOT threaten our employees that our
signing of a contract with the Union could mean
the closing of our operation.
WE WILL NOT threaten our employees that we
would refuse to bargain with the Union selected
by our employees as their collective-bargaining
representative.
WE WILL NOT discharge our employees be-
cause they engage in activities on behalf of Gen-
eral Drivers and Helpers Union, Local No. 554,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organi-
zation.
WE WILL NOT make changes in the work as-
signments of the employees in the collective-bar-
gaining unit described below, and we will not
subcontract a portion of the work of the employ-
ees in that unit and thereby adversely affect the
conditions of employment of Nick Bolejack,
Sam Contreras, Ronald Grant, and Robert Her-
rington because our employees select a union as
their collective-bargaining representative, and
we will not take such actions unilaterally with-
out notice to and bargaining with the Union as
the collective-bargaining representative of the
employees in the unit, and we will not continue
to refuse to bargain collectively with the Union
regarding the use of lease operators and the sub-
contracting of unit work.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
NEBRASKA BULK TNSPORT 35
. .. ._. .s .
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exercise of the rights guaranteed to them by Sec-
tion 7 of the National Labor Relations Act.
WE WILL offer Dennis Miller and Roger Grant
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substan-
tially equivalent positions of employment, with-
out loss of their seniority or other rights and
privileges previously enjoyed.
WE WILL pay to Dennis Miller and Roger
Grant the amount of their loss of earnings since
their termination, with appropriate interest
thereon.
WE WILL pay to Nick Bolejack, Sam Contrer-
as, Ronald Grant, Robert Herrington the
amount of the loss of earnings by them, with
appropriate interest thereon, which has resulted
from our action against them.
WE WILL bargain collectively, upon request,
with General Drivers and Helpers Union, Local
No. 554, affiliated with the International Broth-
erhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, with regard to the
wages, hours, and conditions of employment of
the employees in the appropriate unit described
below, and specifically with regard to the use of
lease operators and the subcontracting of unit
work. The appropriate bargaining unit is:
All full-time and regular part-time drivers, in-
cluding maintenance employees and the dis-
patcher employed by our company at our
Bennet, Nebraska, facilities, excluding office
clerical employees, professional employees,
guards, lease operators, and supervisors as de-
fined in the Act.
NEBRASKA BUI.K TRANSPORT. INC.
DECISION
STATEMENT OF THE CASE
ROGER B. HOLMES. Administrative Law Judge: The unfair
labor practice charge in Case 17-CA-7767 was filed on
July 11, 1977, by General Drivers and Helpers Union, Lo-
cal No. 554, affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union.
The acting Regional Director for Region 17 of the Na-
tional Labor Relations Board, herein called the Board, who
was acting on behalf of the General Counsel of the Board,
issued on August 12, 1977, a complaint and notice of hear-
ing in Case 17-CA-7767 against Nebraska Bulk Transport,
Inc., herein called the Respondent. The General Counsel's
complaint in Case 17-CA-7767 alleges that the Respon-
dent has engaged in unfair labor practices within the mean-
ing of Section 8(a)(1) and (3) of the National Labor Rela-
tions Act, as amended, herein called the Act. The
Respondent filed an answer to that complaint and, inter
alia, denied the commission of the alleged unfair labor
practices.
The original unfair labor practice charge in Case 17-
CA-7868 was filed by the Union on September 8, 1977.
The amended unfair labor practice charge in Case 17-CA-
7868 was filed on October 18, 1977, by the Union.
The Regional Director for Region 17 of the Board, who
was acting on behalf of the General Counsel of the Board,
issued on October 19, 1977, a complaint and notice of
hearing in Case 17-CA-7868 against the Respondent. The
General Counsel's complaint in that case alleges that the
Respondent has engaged in unfair labor practices within
the meaning of Section 8(aX)(1), (3), and (5) of the Act. The
Respondent also filed an answer to that complaint and,
inter alia, denied the commission of the alleged unfair labor
practices.
On October 19, 1977, the Regional Director for Region
17 issued an Order consolidating cases and rescheduling
hearing in Cases 17-CA-7767 and 17-CA-7868.
The hearing was held before me on January 30 and 31
and February 1, 1978, at Lincoln, Nebraska. The time for
filing briefs by the parties was set for March 8, 1978. Both
coLnsel for the General Counsel and the attorney for the
Respondent filed persuasive briefs which have been read
and considered.
,n conjunction with his brief, counsel for the General
Counsel also filed a separate motion to correct transcript.
After reviewing the proposed corrections and in the ab-
sence of any objection, I shall hereby grant the General
Counsel's motion to correct the record to accurately reflect
what was said at the hearing. While there are other inad-
vertent clerical errors in the transcript which is 494 pages
long, those errors are either easily recognizable or inconse-
quential. Therefore, a detailed correction of the record is
not necessary.
However, there is one error which might be misleading
to persons who were not present at the hearing. That error
appears on page 256, lines 19-20, of the transcript concern-
ing a comment which I made at the conclusion of a discus-
sion among the attorneys regarding a document which had
bt en handed to a witness on the stand for the purpose of
refreshing the witness' recollection. I believe that the court
reporter inadvertently placed the word "not" in the wrong
place in the sentence. My comment was, "I am sure you
are not showing him a script with questions and answers."
On my own motion, I shall hereby order the record correct-
ed in that minor respect.
Upon the entire record in this proceeding and based
upon my observation of the demeanor of the witnesses, I
make the following:
FINDINGS OF FA(T
. JURISDICTION
The Respondent has been at all times material herein a
Nebraska corporation with an office and facility located at
Bennet, Nebraska, where it has been engaged in the fur-
nishing of interstate transportation services.
In the course and conduct of its business operations, the
NEBRASKA BULK TRANSPORT 137
Respondent has annually derived gross revenue in excess
of $50,000 from furnishing tranportation of commodities in
interstate commerce or from functioning as an essential
link in the transportation of commodities in interstate com-
merce. In addition, in the course and conduct of its busi-
ness operations, the Respondent has annually provided
services valued in excess of $50,000 to firms which satisfy
the Board's direct inflow or outflow jurisdictional stan-
dards.
Upon the foregoing facts admitted in the pleadings, and
upon the entire record in this proceeding, I find that the
Respondent has been at all times material herein an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It was admitted in the pleadings that the Union has been
at all times material herein a labor organization within the
meaning of Section 2(5) of the Act. Accordingly, I find that
fact to be so.
I1I THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues raised by the pleadings in these
cases are:
I. Whether the Respondent engaged in conduct viola-
tive of Section 8(a)(l) of the Act by:
(a) On or about June 30, 1977, interrogating the wife of
an employee concerning the employee's union activity.
(b) During the second week of July 1977, threatening to
close its facility if its employees selected the Union as their
collective-bargaining representative.
(c) On or about July 7, 1977, threatening to refuse to
bargain in good faith with the Union and threatening to
close its facility if its employees selected the Union as their
collective-bargaining representative.
(d) On or about the week of August 29, 1977, threaten-
ing to sell Respondent's trucking equipment and lease its
hauling operations to lease operators.
2. Whether the Respondent engaged in conduct viola-
tive of Section 8(a)(1) and (3) of the Act by:
(a) On or about July 5, 1977, discharging Dennis Miller
and Roger Grant because of their union membership and
activities.
(b) Since on or about September 1. 9, and 13, 1977, sub-
contracting a portion of the work performed by the follow-
ing named employees, and thereby adversely affecting
their tenure or terms and conditions of employment be-
cause of their union activities: Nick Bolejack, Sam Contr-
eras, Ronald Grant, and Robert S. Herrington.
3. Whether the Respondent engaged in conduct viola-
tive of Section 8(a)(l) and (5) of the Act by, since on or
about September 1, 1977, failing to bargain with the Union
by unilaterally changing the terms and conditions of em-
ployment of employees in the bargaining unit by subcon-
tracting bargaining unit work to lease operators.
4. Whether the General Counsel's motion to amend
both of his complaints in this proceeding, which motion
was made near the conclusion of the trial and after all
parties had rested their cases, should be granted under
these circumstances.
5. In the event that the General Counsel's motion to
amend his complaints is granted, then the following addi-
tional issues are presented:
(a) Whether the Respondent engaged in conduct viola-
tive of Section 8(a)(l) of the Act by:
(I) On various dates after July 5, 1977, interrogating one
of its employees concerning that employee's and other em-
ployees' union activities.
(2) On various dates after July 5, 1977, keeping under
surveillance the union activities of its employees.
(3) One week to 10 days prior to August 27, 1977, in a
letter from the Respondent distributed to its employees,
threatening to close its operations if its employees selected
the Union as their collective-bargaining representative.
(b) Whether the Respondent engaged in conduct viola-
tive of Section 8(a)(l) and (5) of the Act by refusing and
continuing to refuse to bargain collectively with the Union
about the use of lease operators and subcontracting of bar-
gaining unit work.
B. The Witnesses
In alphabetical order, the following persons appeared as
witlesses at the hearing in this proceeding:
Nick Bolejack was employed by the Respondent as a
mechanic and a truckdriver. He was still employed by the
Respondent at the time of the hearing.
Mary Bratt has been the supervisor of the driver record
section of the Department of Motor Vehicles of the State
of Nebraska for the past 6 years. Her office is located in
the State Office Building in Lincoln, Nebraska.
Sam Contreras has been employed as a truckdriver by
the Respondent since 1976. He was still employed by the
Respondent at the time of the hearing.
Carolyn Grant is the wife of Ronald Grant who is em-
ployed by the Respondent.
Roger Grant worked as a truckdriver for the Respondent
from May 4, 1977, until he was terminated on July 5, 1977.
onald Grant has been employed by the Respondent
since March 1, 1977. He was still employed as a truckdriver
by the Respondent at the time of the hearing.
Robert Jensen is a self-employed insurance agent. One of
his customers is the Respondent for whom he writes gener-
al liability and material damage insurance.
Bradford E. Kistler is an attorney associated with the law
firm of Nelson, Harding, Yuetter, Leonard, and Tate of
Lincoln, Nebraska. Kistler represents various motor car-
ners, including the Respondent herein, primarily before
the Interstate Commerce Commission.
Darlene Martin is the secretary-bookkeeper of the Re-
spondent. She has held that position since October 1975.
Her duties include that of payroll clerk and also the post-
ing of accounts receivable and payable.
Dennis Miller began his employment with the Respon-
dent in October 1976. He worked for the Respondent as a
truckdriver who primarily hauled crude oil. He received his
termination letter from the Respondent on July 5, 1977.
Dean L. Petersen has been president of the Respondent
NEBRASKA BULK TRANSPORT
a _ a IS 6 4 . in . ad a w z
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
since March or April 1975. Petersen went to work for
Park's Transport in January 1975 as vice president and
operations manager. Petersen acquired the controlling in-
terest in Park's Transport around March or April 1975, and
thereafter, the name of the Company became Nebraska
Bulk Transport, Inc.
Steven L Schoening is a business representative of the
Charging Party Union.
Hazel Taylor has been employed by the Respondent
since May 1976. Her duties include dispatching, preparing
fuel reports, prorating the fleet, and answering the tele-
phone.
Lawrence W. Troxel was employed by the Respondent at
the time of the hearing as a long distance truckdriver.
The foregoing findings are based upon the testimony of
each of the persons named.
C. Credibility Resolutions
In addition to observing the demeanor of the 14 witness-
es who testified in this proceeding, I have also been guided
by the Board's statement in Nortrlridge Knitting Mills, Inc.,
223 NLRB 230, 235 (1976), where the Board observed
" . . it is abundantly clear that the ultimate choice be-
tween conflicting testimony also rests on the weight of the
evidence, established or admitted facts, inherent probabili-
ties, reasonable inferences drawn from the record, and, in
sum, all of the other variant factors which the trier of fact
must consider in resolving credibility."
In addition, Bolejack, Contreras, Ron Grant, Ms. Mar-
tin, Ms. Taylor, and Troxel were still employed by the Re-
spondent at the time of the hearing. That fact is still anoth-
er matter which may properly be weighed and considered
in resolving credibility. Georgia Rug Mill, 131 NLRB 1304
(1961); Gold Standard Enterprises, Inc., et al., 234 NLRB
618 (1978).
As will be noted hereinafter, Petersen's testimony differs
significantly in certain respects from testimony given by
several other witnesses; i.e., Bolejack, Contreras, Carolyn
Grant, Roger Grant, Ron Grant, Miller, and Troxel. While
I have relied to some extent upon Petersen's testimony
where there are conflicts between Petersen and the fore-
going witnesses, I have found that the testimony of those
witnesses named above is more reliable and credible than
the different versions given by Petersen. Accordingly, I
have based the findings of fact upon those credited ver-
sions bearing in mind the demeanor of the witnesses and
the criteria from the Board's decisions mentioned above.
Nevertheless, the differing versions of Petersen and other
witnesses have been weighed and considered.
Some of the testimony of the witnesses was not contrad-
icted. For example, see the uncontradicted testimony of
Ms. Taylor concerning her conversations with Petersen af-
ter July 1, 1977, which will be set forth in section F herein.
Another example is the testimony of Ms. Bratt, who was an
unbiased and impartial witness without any apparent inter-
est in the outcome of this litigation. There was also a sub-
stantial amount of documentary evidence which was intro-
duced at the hearing. Many of the findings of fact herein
will be based upon such documentary evidence.
Some of the conflicts are minor. For example, I have
weighed and considered the fact that Carolyn Grant's best
recollection at the time of the hearing was that she had not
spoken by telephone with Ms. Martin and Ms. Taylor ear-
lier during the day of June 30, 1977. At the hearing both
Ms. Martin and Ms. Taylor seemed to be certain that such
conversations had taken place on that date and each one
recalled her respective conversation with Ms. Grant with-
out hesitation. While this is an example of a minor point
since the content of those conversations is not crucial, I
have accepted the testimony of Ms. Martin and Ms. Taylor
on this particular point since each one recalled specifically
having had a conversation with Ms. Grant on that particu-
lar date. Nevertheless, I have accepted Ms. Grant's version
of her conversation on the telephone with Petersen on June
30, 1977. As noted earlier, Ms. Grant is the wife of Ron
Grant who was still employed by the Respondent at the
time of the hearing. Ms. Grant did not exhibit any discern-
ible bias or hostility towards the Respondent while she was
on the witness stand, nor did she give the impression that
she was fabricating her version of her conversation with
Petersen. Accordingly, I have accepted her version of that
conversation.
To some extent I have relied upon certain of the testi-
mony from each of the 14 witnesses who testified in this
proceeding. The bias for the findings of fact in each section
will be specified therein, but of course, the conflicting ver-
sions also have been considered.
D. The Union Organizational Activities
Pursuant to a telephone conversation on June 10, 1977,
between Steven L. Schoening and Dennis Miller, Business
Representative Schoening sent the following letter to
Miller, which was introduced into evidence as General
Counsel's Exhibit 5.
As per our telephone conversation this date; I am
sending you 15 Authorization For Representation
cards which must be made out in full prior to our
petitioning to the National Labor Relations Board for
an election.
As soon as you have seven or more cards signed,
please return them in the enclosed envelopes.
Additionally enclosed are some leaflets explaining
your rights and those of your fellow employees to or-
ganize.
In the event you have any further questions, please
feel free to call us on either of the following telephone
numbers:
Lincoln: 432-1355 Omaha: 331-0550
I am looking forward to being able to help all the
employees with whatever working conditions and eco-
nomic problems they may have after the election.
Between June I and 27, 1977, Miller distributed union
authorization cards to Roger Grant, Sam Contreras, Larry
Troxel, Randy Lee, Ronald Grant, Nick Bolejack, and
Dale Thompson. In addition, Miller also signed a union
authorization card. During cross-examination by the attor-
ney for the Respondent, Miller acknowledged that he had
NEBRASKA BULK TRANSPORT 139
not distributed any union cards at the Respondent's facil-
ity, nor had Miller, between June 10, 1977, and July 5,
1977, told Petersen that Miller was attempting to organize
a union at that facility.
On Saturday, June 11, 1977, Roger Grant had a conver-
sation with Dennis Miller. The conversation took place in
Fremont, Nebraska. Also present were Sam Contreras and
Mike Staberg, who were also truckdrivers for the Respon-
dent.
Miller told Grant that he had received a letter and cards
from the Union. Miller asked if Roger Grant would pass
out some of the cards, and Grant said that he would do so.
Miller also asked Grant if he would sign a card, and Grant
said that he would do so and did at that time. Grant took
some of the cards from Miller.
On that same day, Grant gave a card to Mike Staberg.
Later in the week, Grant also gave a card to Carrol Foun-
tain in a local bar. Grant asked Fountain to sign the union
authorization card, but Fountain did not sign it at that
time.
During cross-examination by the attorney for the Re-
spondent, Grant acknowledged that he did pass out any
union cards at the Respondent's facility; Petersen was not
present at any time when he distributed such cards. Grant
further acknowledged that, as of July 5, 1977, he had never
told Petersen that he was involved in any union activities.
The parties entered into the following stipulation:
It is hereby stipulated by and between counsel for the
General Counsel, counsel for the Respondent, and
counsel for the Charging Party that on June 27, 1977,
a petition for certification of representatives was filed
by the Charging Party with the National Labor Rela-
tions Board, Seventeenth Region, and was assigned to
Robert A. Fetch, and that on June 27, 1977, a letter
was transmitted by Thomas E. Hendrix, Regional Di-
rector of the National Labor Relations Board, to Ne-
braska Bulk Transports, Inc., attention Dean Petersen,
Box 215, Bennet, Nebraska, in Case No. 17-RC-8391.
The letter from Regional Director Hendrix was received
by Petersen on June 29, 1977.
On June 28, 1977, the Union set a telegram to the Re-
spondent, which was the first notification from the Union
to the Respondent regarding the union organizational cam-
paign among the Respondent's employees. The telegram
was introduced into evidence as General Counsel's Exhibit
6, and the confirmation notice from Western Union show-
ing delivery of the telegram to the Respondent on June 28,
1977, at 12:29 p.m. was introduced as General Counsel's
Exhibit 7. In pertinent part, the telegram from the Union
to the Respondent states:
THIS IS TO ADVISE THAT GENERAL DRIVERS & HELPERS UNION. LOCAL
#554. IS CONDUCTING AN ORGANIZATIONAL CAMPAIGN AMONG YOUR
DRIVERS AND ANY ATTEMPTS ON THE PART OF YOUR COMPANY 10 IN-
TERFERE WITH THE RIGHTS OF YOUR EMPLOYEES OR TO DISCRIMINATE
AGAINST YOUR EMPLOYEES AS TO TERMS AND TENURE OF EMPLOY-
MENT. TO FORM, JOIN OR ASSIST A LABOR ORGANIZATION WILL BE MET
WITH PROMPT ACTION ON THE PART OF THIS ORGANIZATION AND HE
FILING OF CHARGES WITH THE NATIONAL LABOR RELATIONS BOARD
The foregoing findings of fact are based upon the testi-
mony of Schoening, Roger Grant, and Miller, as well as
documentary evidence and a stipulation by the parties.
Petersen asserted that he first learned of any union activ-
ity regarding the organization of Respondent's employees
either on June 28 or 29, 1977. Petersen said that he first
learned of this by a telephone call from Western Union. He
said that the person from Western Union read and reread
the telegram to him over the telephone, but that Petersen
did not understand and requested that Western Union
send him a copy of the telegram. Petersen said that the
next day he did receive a mailgram from Western Union.
On August 27, 1977, a representation election was con-
ducted among certain employees of the Respondent in
Case 17-RC-8319. A majority of the employees participat-
ing in that election designated and selected the Union as
their collective-bargaining representative. Therefore, the
Regional Director for Region 17 certified the Union on
September 6, 1977, as the collective-bargaining representa-
tive of the employees of the Respondent in the following
described unit:
All full-time and regular part-time drivers, including
maintenance employees and the dispatcher employed
by the Respondent at its Bennet, Nebraska, facilities,
excluding office clerical employees, professional em-
ployees, guards, lease operators, and supervisors as de-
fined in the Act.
The foregoing findings are based on the pleadings with
re,ard to Case 17-RC-8319.
E. The Conversation Between Bolejack and Petersen on
June 27, 28, or 29, 1977
On one of the following dates--June 27, 28, or 29-Bole-
jack had a conversation with Petersen in the Respondent's
office. Bolejack said that Darlene Martin and Hazel Taylor
were also present during the conversation. Bolejack de-
scribed his conversation with Petersen on that occasion as
follows:
I went in the office for something and he asked me if
I had seen any strangers on the premises lately and I
said, no, I hadn't seen any strangers. He wanted to
know if I'd seen any in the shop and I told him, no.
Then he didn't say any more for a little bit and I
turned around to walk out the door and he said some-
body was trying to solicit the Union there.
The foregoing findings of fact are based upon the testi-
mony by Bolejack.
Petersen's version is that he did not have a conversation
regarding strangers on the Company's premises on June 28
or 29, 1977. Instead, Petersen placed the time of the con-
versation as being I or 2 weeks later. Petersen testified, "I
asked Nick prior to this time, I had asked Nick if he had
seen any strangers around the place contact the drivers,
and he said, no, and that was the end of the conversation
on that point."
For the reasons previously stated, I have credited
Bolejack's version.
NEBRASKA BULK TNSPORT
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. The Conversations Between Ms. Taylor and Petersen
After July 1, 1977
Hazel Taylor was the final witness called by the Respon-
dent during its case. It was established during the direct
examination of Ms. Taylor that she first learned of any
union activity among the employees of the Respondent on
Friday, July 1, 1977.
During cross-examination by counsel for the General
Counsel, Ms. Taylor related that it was around 4 p.m. that
Friday afternoon when one of the drivers, Herrington,
came in and asked her if Petersen had gotten the telegram.
Ms. Taylor replied that she did not know what telegram he
was talking about. Herrington said that it was the one tell-
ing Petersen there was going to be a union. Ms. Taylor
replied that as far as she knew, Petersen had not gotten a
telegram.
During redirect examination by the attorney for the Re-
spondent, the following took place:
Q. [By Mr. Guthery] Prior to your learning of the
union activity from Mr. He!rington on that Friday,
did you ever tell Mr. Petersen that there was some
possibility of union activity by the employees?
A. I didn't know anything about a union until Her-
rington asked me, and then it was discussed freely.
Q. So you had no conversation with Mr. Petersen
about such subject matter?
A. No. I didn't see him. He was out of town.
During recross-examination of Ms. Taylor by the attor-
ney for the Charging Party, Ms. Taylor testified in re-
sponse to these questions:
Q. When did Mr. Petersen talk to you about the
Union?
A. If I would go to lunch with one of the drivers, he
would say, "Was there anything said about the
Union?" I would say, "Yes, there were things said
about the Union."
Q. Did you tell him the name of the driver you
went to lunch with?
A. He knew the name. He came in the office and
got me.
Q. And Mr. Petersen saw the driver and yourself go
to the Bennet Cafe?
A. Yes.
Q. When you got back, he would ask did the driver
talk about the Union?
A. Not necessarily. He might say, "Was the union
discussed?" and I would say, "Yes, it was discussed."
That was the main topic of conversation in the whole
office, and among the drivers also.
Q. You mean Mr. Petersen and Miss Martin and
yourself?
A. Mr. Petersen and I have seldom talked about the
Union to get down to a special point. Darlene and I
have discussed it, yes.
The foregoing findings of fact are based upon the uncon-
tradicted testimony of Ms. Taylor.
G. The Termination of Dennis Miller
1. Miller is placed on probation effective January 5, 1977,
and in March 1977 his truck engine is damaged
On December 16, 1976, Dennis Miller filed a "spillage
report" with the Respondent in which he advised that
while he was backing up his truck at the ADM facility in
Omaha, Nebraska, the lid was open on the truck and some
oil spilled out. On the form, Miller acknowledged that the
spillage could have been prevented if the lid had been shut.
A copy of Miller's report was introduced into evidence as
Respondent's Exhibit 2.
On January 5, 1977, the Respondent placed Miller on
probation. Miller was notified by letter from the Respon-
dent on that date. The letter was introduced into evidence
as Joint Exhibit 5. In pertinent part, it states:
You are hereby given notice that you are being
placed on probation effective Jan. 5, 1977. This means
that any further errors or failure to report for work on
your part will result in immediate termination of your
employment.
This action has been brought about by a culmina-
tion of several events.
First, several weeks ago you did not report for work
on Saturday as instructed. You advised that you had
to have some teeth pulled. When asked the following
week you advised that you had in fact had them
pulled. However a check at the dentist office revealed
they were not even open and they still have not pulled
your teeth.
You did not report again for work on Dec. 31, 1975
as instructed after having had the 21, 22, 23 and 24th
of December off.
On Jan. 4, 1977, you failed again to report for work
and after my calling you, you advised you were sick
but had made no effort to contact the office at 8:30
A.M. as required if you in fact are sick.
You also had an incident of oil spillage directly
chargeable to you at Shadd Bartush, Omaha, Nebras-
ka, on December 16, 1976.
It will behoove you to get off this probationary sta-
tus by doing the job you are being hired to do in an
energetic and timely fashion.
Miller stated that he did not have any conversation with
Petersen with regard to that letter, nor was he later notified
that he was no longer on probation.
On March 19, 1977, an incident occurred which resulted
in Petersen giving Miller a verbal reprimand. Miller stated,
"I was coming back home from Sioux City, and in Fre-
mont, Nebraska, the oil plug came out of the tractor and
losing all the oil, and the engine blew up."
The next day, Petersen gave a verbal reprimand to
Miller, but said nothing with regard to Miller's being on
probation or suspending Miller from work. With regard to
that conversation Miller testified, "He said I should have
been watching the oil pressure gage, and when I seen it
start to drop off, I should have shut the engine off immedi-
ately." During cross-examination by the attorney for the
Respondent, Miller acknowledged that the truck was inop-
NEBRASKA BULK TRANSPORT 141
erable for 2 or 3 months and had to be sent to a service
center for repairs.
The facts set forth above are based upon the testimony
of Miller and upon documentary evidence.
2. The events preceding the termination of Miller on July
5, 1977
On Monday, June 27, 1977, Miller completed his as-
signed run to the Blue Star facility in Council Bluffs, Iowa,
and returned to the Respondent's facility. He was driving
tractor number 905. About 5 or 5:30 p.m. that day, Miller
and Nick Bolejack were changing the oil on the tractor
when they ". . . discovered the air bag was ready to fall off
the brakes and the fifth wheel was broke." At that point,
Petersen, Ms. Martin, and Ms. Taylor were not present at
the facility.
There was a work schedule posted on the bulletin board
at the Respondent's facility and that schedule indicated
that Milelr had a run to Crete Mills scheduled for 7 a.m.
the next day, Tuesday, June 28, 1977, in truck 905.
According to Miller, the worK assignment schedules
were posted on the bulletin board between 4:30 and 5 p.m.
daily. When Miller was not at the facility, his general prac-
tice was to telephone the Respondent. However, Miller ac-
knowledged that since the first of May 1977 Petersen had
told him two or three times that Miller was supposed to
telephone the Company to secure his work assignments.
He said Petersen had not told him that he would be termi-
nated if Miller failed to do so.
The work schedule for the peirod from June 25, 1977,
through July 1, 1977, was introduced into evidence as Gen-
eral Counsel's Exhibit 3(a).
Around 8 o'clock during the evening of Monday, June
27, 1977, Miller tried to contact Petersen by telephoning
Petersen's home, but there was no answer.
On Tuesday, June 28, 1977, Miller did not report to the
Respondent's facility. About 8:30 that morning, Ms. Mar-
tin telephoned Miller at his home. Miller said that Ms.
Martin asked him why he had not left for Crete Mills with
the tractor, and Miller told her that it was broken. He ex-
plained that the fifth wheel was broken and that the air
bags were falling off, and therefore, it should not be on the
road. Ms. Martin asked Miller to come to the facility and
work on it, so Miller did so and arrived at the facility be-
tween 9 and 9:30 a.m.
Miller had a second conversation that day with Ms.
Martin. That conversation took place in the office. During
that conversation, Ms. Martin asked Miller what was
wrong with the truck, and he again told her the specific
problems which he had discovered the night before. At that
point, the telephone rang. Dean Petersen was calling, and
at that time Miller had a conversation with Petersen. Miller
testified:
Dean asked me why I hadn't left with the truck, and I
told him what was wrong with it, and then he asked
why he wasn't notified. I told him he was gone when
we found out what was wrong with it, and I tried to
reach him at home that evening. He said just to go on
home, that he would get another driver to come and
take the run to Crete Mills.
During the evening of June 28, 1977, Miller telephoned
Petersen at his home. With regard to that telephone con-
versation, Miller testified:
I called Dean and asked him-I was in the process of
moving to a new house, and I told him I needed some
time to get settled, and my tractor was in the shop
anyway, if I could have a couple of days off, and he
said yes, take a couple of days off and get settled. So
when my tractor got out of the shop, I could work.
Miller did not report to the Respondent's on Wednes-
day, June 29 or Thursday, June 30, 1977, to work. How-
ever, about 8 p.m. on June 30, 1977, Miller did go to the
Respondent's facility to check the schedule. When he saw
the schedule, he noticed that he was to report to the office
at 8:30 a.m. on Friday, July 1, 1977.
On Friday, July 1, 1977, Miller reported to the Respon-
dent's office between 8 and 8:30 a.m. at which time he had
a conversation with Ms. Martin. Miller testified:
I asked if Dean was in, and she said no, that she didn't
know if he would be in on the first of July. I asked
what I was supposed to do, and she said, "You might
as well go back home."
Therefore, Miller said that he returned home.
Based on what Bob Herrington, a driver, had told Miller
at a union meeting at the Holiday Inn on Sunday, July 3,
1977, Miller reported to the Respondent's office between 8
and 8 and 8:30 a.m. on Tuesday, July 5, 1977. At that time
Miller asked Ms. Martin if Petersen was in and she told
him no, but that Petersen had left a letter for her to give to
Miller. She then handed Miller the termination letter which
is dated June 30, 1977 and which was introduced into evi-
dence as Joint Exhibit I. In pertinent part, it states:
Your employment with Nebraska Bulk Transport.
Inc. is terminated effective I July 1977 for your failure
to report for work June 28 and 30, 1977. You have not
followed the company procedures by calling in prior
to 5:00 P.M. each day to secure your next days assign-
ment having failed to call in June 27 and June 29,
1977. These last two instances are just two of many
times you have disregarded instruction.
You have also been negligent in the operation of
company equipment, such as losing the oil plug out of
tractor 903 thereby ruining the engine, which cost
$7,972.35 to repair.
You were previously placed under probation Jan. 5,
1977 for other violations. We can no longer condone
your lackadaisical attitude, so must take this drastic
action.
The findings of fact in this section are based upon
Miller's testimony and documentary evidence.
According to Ms. Martin, she telephoned Dennis Miller
at his home at 8:30 a.m. on Tuesday, June 28, 1977. She
said that she asked Miller why he had not delivered his 6
a.m. load to Crete Mills. Ms. Martin did not recall at the
hearing what response Miller had given her. However. she
NEBRASKA BULK TRANSPORT 141
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did recall that while they were speaking, Petersen telephoned
on the other line. Ms. Martin said that she told Petersen that
Dennis Miller was on the other telephone line and that Miller
had not gotten his load out. Petersen told her to get Miller
to come down to the facility as soon as possible. She said that
she then told Miller what Petersen had said and Miller told
her that he would be "right down." According to her, about
an hour later, Miller arrived at the facility, but by that point.
someone else already had been dispatched to take that load
so Miller was sent back home.
Ms. Martin said that Miller did not ask her for any time
off during the week of June 27, 1977, in order to move.
Petersen's version is that Miller worked on Monday,
June 27, 1977, but that Miller failed to report for work on
Tuesday, June 28, 1977. As a result, Petersen said that he
had Ms. Martin telephone Miller. Petersen then spoke with
Miller on the telephone and asked him why he ahd failed
to take the load to Crete Mills to which Miller had been
assigned. Petersen said that Miller told him that Miller had
a problem with his truck which involved a crack in the fifth
wheel. Petersen said that he asked Miller why he did not
advise Petersen of this on Monday night when he had fin-
ished servicing the truck. According to Petersen, Miller re-
mained silent and did not respond.
Petersen said that the fifth wheel was repaired on Tues-
day, June 28, 1977.
Petersen said that Miller did not have an assignment for
Wednesday, June 29, 1977, but that Miller did have assign-
ments on Thursday, June 30, 1977 and Friday, July 1,
1977. However, Miller did not show up for work on those 2
days.
Petersen stated that between June 27, 1977, and July 5,
1977, he received no request from Miller for time off in
which to move.
Petersen denied that Dennis Miller was terminated be-
cause of union activities. Instead, Petersen asserted that the
reason for Miller's termination was the one stated in his
letter of termination which was introduced into evidence as
Joint Exhibit 1. Although the letter is dated June 30, 1977,
Petersen said that he handed that letter to Miller in his
office on July 5, 1977, because Petersen said that he had
not seen Miller earlier.
Petersen stated that he had, on previous occasions, dis-
cussed the Company's procedures with Miller. Petersen
pointed to the time at which Miler was initially hired by
the Respondent on October 3, 1976, and to the time that
Miller actually began working for the Respondent on Oc-
tober 6, 1976. According to Petersen, Miller had gone
hunting and also to a wedding on October 30, 1976, and
that his failure to advise the Company in advance resulted
in Petersen talking with Miller on November 1, 1976.
In addition, Miller said that he reiterated the Company's
policy on January 5, 1977, when Miller had failed to report
for work on December 31, 1976. Miller was placed on pro-
bation by the Respondent on January 5, 1977. (See Jt. Exh.
5.) Petersen said that Miller was never taken off of proba-
tion during the remainder of his employment with the Re-
spondent.
For the reasons previously given, I have considered
Petersen's version, but I have credited Miller's account.
H. The Termination of Roger Grant
1. The application for employment and the motor vehicle
drivers certification of Roger Grant
At the time that Roger Grant was hired by the Respon-
dent, he was not required to complete an application for
employment form, nor was he requested to complete a cer-
tificate pertaining to his driving record. However, on May
16, 1977, Darlene Martin told Roger Grant that he would
have to fill out an application form. Roger Grant filled out
the form on that date and returned it to Ms. Martin. Al-
though he filled out the form on May 16, 1977, he backdat-
ed the application to show a date of May 2, 1977, based on
his belief that Interstate Commerce Commission regula-
tions require that an application for employment must be
filled out prior to the commencement of employment.
Roger Grant's application for employment with the Re-
spondent was introduced into evidence as Joint Exhibit 3.
The form is four pages long. On page 3 of that form, the
applicant is requested to state his "accident record for the
past 3 years or more."
Grant indicated that his last accident was in 1975 when
a ar ran a stop sign in front of him. He indicated that
there were no fatalities or injuries.
Also on page 3 of the application is a heading "Traffic
Ccnvictions and Forfeitures for the past 3 years (other
than parking violations)." Under that heading, Grant listed
two such incidents for speeding at Franklin, Nebraska, in
1915 and also "some minor violations in Lincoln." During
cross-examination by the attorney for the Respondent at
the hearing, Grant indicated that the latter referred to
parking tickets.
Later during the week of May 16, 1977, Roger Grant had
another conversation with Darlene Martin in the office at
the Respondent's facility. In addition to Ms. Martin being
present, Grant said that Hazel Taylor and Dean Petersen
were also present during this conversation which took
place in the midmorning. Grant aaid that he asked Ms.
Martin aobut the schedule and she told him that she had
nothing at that moment, but that there might be something
laer on. She then handed Grant a form and told him to fill
it out. The form is entitled "Motor Vehicle Drivers Certifi-
cation" and it was introduced into evidence at the hearing
as Joint Exhibit 4.
Grant wrote "none" on the form in the space for listing
the details following the statement, "I certify that the fol-
lowing is a true and complete list of traffic violations (other
than parking violations) for which I have been convicted or
forfeited bond or collateral during the past 12 months."
Thereafter, the form also contains the statement, "If no
violations are listed above, I certify that I have not been
convicted or forfeited bond or collateral on account of any
violation required to be listed during the past 12 months."
Grant wrote his signature on the form, but he did not place
the date of "5-3-77" on the form.
After completing the form, Grant returned the form to
Ms. Martin; also he had a conversation with Petersen that
morning between 10:30 and 11 o'clock. Grant said that
Ms. Martin and Ms. Taylor were also present during the
conversation. Grant testified:
NEBRASKA BULK TRANSPORT 143
Upon completing the forms, I turned them in to Dar-
lene Martin and Dean Petersen was there, and we dis-
cussed a trip I was supposed to take, and he asked me
if I needed any travel money, and I said no, I had
enough to make it. He gave me some credit cards for
fuel, and then after he gave me the credit cards, I said,
"By the way, Dean, I am not sure about the number or
dates on my traffic violations." He then told me not to
worry about it, that it wasn't that important.
While at that point in the transcript, the question was
asked with regard to the date of June 16, 1977; it is clear
from the preceding page 128 that the conversation was on
May 16, 1977.
During cross-examination by the attorney for the Re-
spondent, Grant offered this explanation of the circum-
stances at the time that he filled out both of the forms:
Upon filling these out, they were filled out hurriedly
between runs. The only way, driving a truck, you can
make money is keep the thing running at 12 cents a
mile. You have to rack up a lot of miles to make
money. I was in a hurry to get on the road and these
had to be filled out, so I filled them out hurriedly and
I can't remember the exact number and dates on all of
my traffic tickets, so I wrote none there.
The findings of fact in this section are based upon the
testimony of Roger Grant and documentary evidence.
Darlene Martin did not recall having a conversation on
May 16, 1977, with Roger Grant with regard to his filling
out an application for employment. She did remember re-
ceiving a telephone call from him about the schedule, but
she did not remember what she told Grant.
According to Petersen, he talked with Roger Grant on
May 2, 1977, rather than May 16, 1977, with regard to
Grant's driving record. Petersen said that he noticed that
Roger Grant had one accident listed, but that Grant had
told him that a car had run a stop sign in front of him, and
that there were no injuries or damages. Petersen also said
that Roger Grant advised him that Grant was not sure of
the dates of his speeding violations in 1975. Petersen said
that he told Grant that if Grant had only had two speeding
violations in 1975, there would be no problem because they
would have occurred 2 years earlier and that two speeding
violations really were not that much of a problem. Petersen
said that he told Grant that they could ascertain the exact
dates after they got a record check. Petersen also recalled
that Grant told him that he might have had a parking tick-
et or something like that but Petersen told him that it was
not important and he did not believe that they recorded
those under the minor violations.
Petersen also said that he had known Roger Grant for
several years previously in Grant's capacity as plant refi-
nery manager at the ADM facility in Lincoln, Nebraska.
For the reasons previously stated. I have credited the
version given by Roger Grant, although I have considered
and weighed Petersen's version.
2. The request for the Department of Motor Vehicle
records
Ms. Taylor testified that on June 24, 1977, Petersen tele-
phoned her from New Orleans and asked her to prepare
the document which was introduced as Respondent's Ex-
hibit . She said that she did prepare the document on that
date, but it was not mailed to the Department of Motor
Vehicles because Petersen was not at the Respondent's of-
fice to write the check for the Department of Motor Vehi-
cles.
According to Petersen's testimony, the Respondent sent
in a request for the driving records of Roger Grant, Ron
Grant, Carrol Fountain, and Paul Ratzlaf on either Mon-
day June 27, 1977, or Tuesday June 28, 1977. Petersen ex-
plained that the 2 weeks prior to that time in in June, he
had been in New Orleans, Louisiana, attached to the
admiral's staff for the United States Navy. Petersen said
that he had left Lincoln on Sunday, June 12, 1977, and did
not return to Lincoln until Saturday, June 25, 1977. His
first day back in his office was on Monday, June 27, 1977.
Petersen did say that he mailed the request for the driv-
ing records prior to his receipt of a telephone call from
Western Union regarding the union organizing activity and
prior to the time that he had received the mailgram.
The foregoing testimony regarding the Respondent's de-
cis,on to make a request for the driving records prior to
gaining knowledge of the Union's organizational activities
is made highly improbable by the testimony of an impartial
and unbiased witness, Mary Bratt, regarding her proce-
dures for handling such requests, and by the fact that Ben-
net is only 15 to 20 miles from Lincoln, Nebraska.
Mary Bratt, supervisor of the driver record section of the
Department of Motor Vehicles of the State of Nebraska,
identified General Counsel's Exhibit 9 as a receipt for $3
which was received from the Respondent in her office on
June 30, 1977.
According to Ms. Bratt, receipts are written in her office
on the very same day that money is brought or mailed into
her office. She said that the motor vehicle records are pro-
cessed that same night in the State Capitol and the records
fo-warded to her office the next morning where they are
mailed out that day.
By examining Respondent's Exhibit , Ms. Bratt stated
that the computer check of the Department of Motor Vehi-
cle driving record for Roger Grant was made on June 30,
1977. Since June 30, 1977, was a Thursday, she said that
the record would have been mailed from her office the next
day, Friday, July 1, 1977. She said that the date stamped
on Respondent's Exhibit I of July 5, 1977, was not a stamp
used in her office.
The foregoing findings of fact are based upon the testi-
mony of Ms. Bratt and documentary evidence. I have
credited her testimony as that of a disinterested witness,
and I have not credited the testimony related in this section
by Ms. Taylor and Petersen concerning the request for the
driving records.
NEBRASKA BULK TRANSPORT 143
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The conversation between Carolyn Grant and Petersen
on June 30, 1977
During the afternoon of June 30, 1977, Carolyn Grant
had a telephone conversation with her husband, Ronald
Grant, who was in the outer office at the Respondent's
facility. Ms. Grant was at home.
About 15 minutes after talking with her husband, Ms.
Grant telephoned the Respondent's facility for the purpose
of talking with her husband once again "to catch him be-
fore he came home." She expected to speak with Darlene
Martin, but Dean Petersen answered the telephone. Ac-
cording to Ms. Grant, the following took palce during her
telephone conversation with Petersen that afternoon:
He said, "This is Dean Petersen, Nebraska Bulk
Transport." I asked Dean Petersen if anybody else
was around and he said no. He said, he asked me if I
had heard anything about this union thing and I said
no. Then he went on to ask me who Ron Grant runs
with. I then told Dean, Sam Contreras. He asked me if
Ron Grant run around with Roger Grant and I said
no. Then Dean said he would see if he could help me
out.
Ms. Grant also recalled that she told Petersen during
their conversation that Ms. Grant was having an argument
with her husband at the time. She further recalled
Petersen's statement to her, "He would see if he could help
me out." She replied, "I do not expect any help."
To the best of her recollection, Ms. Grant stated that she
did not have telephone conversations with Darlene Martin
or Hazel Taylor prior to her telephone conversation with
Petersen that afternoon, nor did she talk with Petersen ear-
lier that day.
The foregoing findings of fact are based upon the testi-
mony of Carolyn Grant.
Hazel Taylor testified, contrary to the recollection of
Ms. Grant, that Ms. Grant telephoned her during the
morning of June 30, 1977. According to Ms. Taylor, Ms.
Grant discussed with her certain marital problems between
Ms. Grant and her husband.
Darlene Martin testified, contrary to the recollection of
Ms. Grant, that she did speak with Ms. Grant during the
afternoon of June 30, 1977. According to Ms. Martin, she
was in the Respondent's office when Ms. Grant telephoned
about 2:30 p.m. In her version, Ms. Martain said that Ms.
Grant told her about certain specific marital problems
which existed between Ms. Grant and her husband.
As mentioned earlier in section C herein, I have accept-
ed the versions of Ms. Taylor and Ms. Martin on this sub-
ject.
Petersen gave a different version of his telephone con-
versation with Carolyn Grant. According to Petersen, the
conversation took place around 5 or 5:30 p.m. He said that
he was at the office at the time of the telephone call. Peter-
sen testified:
Do you want me to use her exact words? She said,
"Where is that s.o.b. husband of mine? He left me
without any money, and the kids has no money, and I
can't buy milk and food, and I've been looking for
him." I said, "Do you need money?" and she said,
"He took all the money." I said, "I could try to find
him and give you an advance." She said, "He's been
running around and drinking again and raising Cain,"
and I said, "Who has he been running around with?"
She said, "He's been running with Sam Contreras." I
said, "I'll go see if I can find him and I'll talk to him,"
and that was the end of the conversation.
Petersen denied asking Ms. Grant if she had heard any-
thing about the Union, and he further denied asking Ms.
Grant about her husband's union activity.
For the reasons previously stated, I have credited Ms.
Grant's version of her telephone conversation with Peter-
sen.
4. The conversation and memoranda between Jensen and
Petersen
Jensen identified copies of two memorandums which he
sent to Petersen at Petersen's request. These memoranda
were introduced into evidence as Respondent's Exhibits 31
and 32. At the time that Jensen prepared Respondent's
Exhibit 31, Jensen said that he did not think that he had
Ro:er Grant's record in front of him when he wrote the
memoranda. Instead, Jensen said that he relied upon what
was said by Petersen in their telephone conversation which
Petersen initiated. With regard to Respondent's Exhibit 32,
Jensen testified that he believed that he did have the motor
ve-icle reports for Paul Ratzlaf, Ronald Grant and Carroll
Fountain at the time that he prepared Respondent's Ex-
hibit 32.
In pertinent part, Respondent's Exhibit 31 states:
Per our conversation of 7-5-77 regarding the driving
record of Roger Grant. With 4 violations in the past 3
years he does not meet our underwriting requirements
and we would ask that you sign a restriction, (voiding
any coverage while he was driving) if he is to remain
in your employment. Please advise if he continues his
employment with you.
In pertinent part, Respondent's Exhibit 32 provides:
Re: MVR's on Paul Retzlaff, Ronald T. Grant and
Carrol Fountain.
Paul appears OK.
Ronald is questionable with 2 current speeding & an
accident with a citation that is not quite 3 years old-
How long has he driven or what is his job stability?
Carrol also questionable with license revoked on
points, driving on suspended license and a current
speeding. I can send these on to our underwriters if
you want, but feel they will want supporting reasons if
you are to keep as drivers (Ronald & Carrol).
At the hearing, Jensen at first said that he did not know
whether or not he had written any letter or memorandum
regarding any driver to Petersen prior to July 1977 which
contained the type of information set forth in Respon-
dent's Exhibits 31 and 32. However, Jensen checked his
office records following his appearance on the witness
NEBRASKA BULK TRANSPORT 145
stand and returned to the hearing room the next day and
reported that he had not previously sent any letters similar
to Respondent's Exhibits 31 and 32 to the Respondent
prior to July 6, 1977. Jensen stated that this was the first
time he had been requested by the Respondent to confirm
the conversation by memo.
The findings of fact set forth above are based upon
Jensen's testimony and documentary evidence.
According to Petersen, he contacted his insurance agent,
Jensen, by telephone and read the driving record report to
Jensen over the telephone. Petersen said that this was on
July 5, 1977, when Petersen received the report from the
Department of Motor Vehicles. According to Petersen,
Jensen told him that he wanted to see the records so Peter-
sen took the reports to Jensen's office.
5. The events on July 5, 1977, preceding the termination
of Roger Grant and the events on July 6, 1977
Roger Grant reported for work at 7:30 a.m. on Tuesday,
July 5, 1977. About 8:30 that morning, Grant had a con-
versation with Darlene Martin in the office. Grant asked
Darlene if she had any runs for him on that day, such as a
run to haul crude or to go on a long run Ms. Martin re-
plied no. Then Petersen telephoned and told her that Grant
was to wait in the office and that Petersen wanted to talk
with Grant. Grant remained at the Respondent's facility
and worked on his truck all morning long.
Petersen arrived between 12:30 p.m. and I p.m. that day
at which time he had a conversation with Roger Grant in
the office. Grant said that Darlene Martin was also pres-
ent. Grant described what took place as follows:
I asked Darlene Martin if she had anything yet, and she
was sitting at her desk, and she turns to Dean and said
"What about Roger Grant?" Dean came out of the back
office, carrying some papers, and walked up and says
something to the effect of, What about this, and he showed
me some papers. I then asked him "What is it?," and he
said "It's a list of your traffic violations, and I looked at it
and I says "What does this mean?" He says "The insurance
company tells me I cannot let you drive for me any more."
At that time, I asked him how come it took him so long
and he said he had just received them that day, and I says
"You mean I can't drive for you any more, I am finished?"
He said "Yes, but I will not write it up in a letter," so I then
left the office.
Grant recalled that Carrol Fountain asked Petersen,
"What about me?" and Petersen told Fountain, "Oh, you
are all right."
The next day, Wednesday, July 6, 1977, Grant picked up
in the mail room an envelope which contained his final
check and also a letter of termination from the Respon-
dent. The letter was introduced into evidence as Joint Ex-
hibit 2. In pertinent part, it states:
It is with regret that we must terminate your em-
ployment this date, July 5, 1977.
The return of your motor vehicle license check from
the State of Nebraska this date revealed that you have
only I point left on your license as you have been
convicted of four speeding violations.
These violations were not all listed on your applica-
tion for employment nor were they listed on your Mo-
tor Vehicle Driver's Certification completed May 3,
1977 when you were first employed.
Our insurance carrier screens our drivers records
and they will not insure driver's with records such as
yours.
Your payroll check and expense check will be avail-
able at the office when you turn in your keys and
credit cards.
As noted above, the termination letter refers to Grant
having "only I point left on yoru license .... " At the
hearing, Grant acknowledged that in an earlier affidavit
given to an agent of Region 17 of the Board on July 18,
1977, he had stated that Petersen had given him the letter
of termination on July 5, 1977, and had told him at that
time that Grant had only one point on his license and the
insurance company would not insure him. In explaining
the error in the affidavit, Grant offered the explanation
that at the time he gave the statement to the Board agent,
"We had a number of relatives in the house and kids run-
ning around, and it was hard to concentrate."
Only July 6, 1977, Grant also obtained an abstract of his
drving record from the Department of Motor Vehicles of
the State of Nebraska. That abstract, was introduced into
ev dence as General Counsel's Exhibit 8. The information
contained in the abstract is also a part of Respondent's
Exhibit 1. The computer printout portion of each one of
the exhibits pertaining to Grant's record of violations is
that same. In pertinent part, the exhibits state:
CRT/TR VIOLATION/
DATE TRANSACTION
11/17/73
01/09/75
09/13/75
09/05/76
09/06/76
SPEEDING
SPEEDING
SPEEDING
SPEEDING
SPEEDING
CRT &
LOCATION
CY LINCOLN
CY LINCOLN
CY LINCOLN
CY LINCOLN
CY KEARHEY
CY FRANKLIN
PTS
3
3
2
3
3
HEARING OPER JAIL
DATE PRIV SENT
12/27/73
01/14/75
10/01/75
09/24/76
10/26/76
Roger Grant did not recall asking Hazel Taylor to get a
copy of his driving record out of the Respondent's file.
The findings of fact in this section are based upon the
testimony of Roger Grant and documentary evidence.
Ms. Taylor said that she was present during the conver-
NEBRASKA BULK TNSPORT 145
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sation between Petersen and Roger Grant at the time of
Grant's termination. According to her, Petersen told Grant
that Petersen had gotten a letter from the insurance com-
pany and they would not insure Grant. Petersen said that
he was going to have to terminate Grant. She said Grant
replied, "This is it, then."
About July 6 or 7, 1977, Ms. Taylor had a conversation
at the Bennet Cafe with Roger Grant. Also present during
the conversation were Sam Contreras, Nick Bolejack, and
Dennis Miller.
According to Ms. Taylor, Grant said that Petersen was
wrong about the count of the number of points which
Grant had, and Grant asked Ms. Taylor if she could get
him a copy of the letter from the insurance company. Ms.
Taylor told him that she would try to do so.
A few days later, Ms. Taylor told Grant that it was im-
possible for her to get the letter.
With regard to the termination letter dated July 5, 1977,
for Roger Grant, Petersen acknowledged at the trial that
Petersen had made an error in the letter in totaling up the
points for Roger Grant. (See Jt. Exh. 2.)
Petersen denied that he terminated Roger Grant because
of his union activity or because of the attempt to organize
the employees of the Respondent; instead, Petersen assert-
ed that Roger Grant was terminated because the Respon-
dent would not be able to obtain insurance on him.
Petersen's version is that he told Roger Grant on July 5,
1977, that Petersen had received the motor vehicle record
check that morning from the State of Nebraska Depart-
ment of Motor Vehicles. He said that he had called Jensen
to discuss the situation with him. Petersen also told Roger
Grant that he had not listed the speeding violations that he
had in 1975 or in 1976 and that the insurance company was
questioning his ability. Petersen stated that he told Roger
Grant that the insurance company did not want to insure
him. He said that he also told Fountain that the insurance
company was reviewing his record also and that as soon as
they made the decision on Fountain, Petersen would have
to talk with him.
Petersen also said that he told Roger Grant that he
thought he had I points against his license. He said that
Roger Grant replied that that figure was wrong and that he
only had eight. Petersen said that he advised Roger Grant
that the points were immaterial because the insurance com-
pany had made the decision and that Petersen could not
operate because the Interstate Commerce Commission re-
quires that Peterson have on file a certificate of insurance.
For the reasons stated previously, I have credited Roger
Grant's version.
1. The Legal Opinion Rendered to the Respondent on July
7, 1977
Attorney Kistler identified Pat Quinn as an attorney
who was associated with the same law firm for several
years until August 1, 1977. He also identified a copy of a
letter which he located in the law firm's files. That letter is
dated July 7, 1977, and was introduced into evidence as
Respondent's Exhibit 33. In pertinent part, the letter
states:
In order to confirm our telephone conversation ear-
lier this date, please be advised that the Interstate
Commerce Commission regulations require that vehi-
cles which you operate be insured for the protection of
the public and of the cargo which they carry at all
times. If your insurance carrier will not cover certain
units of equipment because of a driver's poor driving
record, or, for that matter for any other reason, you
are in violation of Interstate Commerce Commission
insurance regulations which could of course jeopar-
dize the continued operation of your operating author-
ity.
If you have any questions concerning the above,
please give me a call.
At the hearing, attorney Kistler also gave his legal opin-
ion, but he candidly stated that he had never given his own
legal opinion or advice on that matter to the Respondent
prior to the time of the hearing.
The foregoing findings of fact are based upon the testi-
mony of attorney Kistler and documentary evidence.
J. The Conversation Between Bolejack and Petersen on July
7, 1977
On July 7, 1977, while Bolejack was riding in a pickup
truck with Petersen en route from Louis Service Center
located on West O Street in Lincoln back to the Respon-
dent's office in Bennet, the two had another conversation.
Bolejack related their conversation on that date as follows:
Well, we was just riding along and he said, "I under-
stand they are trying to get the union in out there, and
it doesn't make any difference if they do because I am
not going to negotiate, anyway."
The findings of fact in this section are based upon
Bolejack's testimony.
Petersen gave the following version of his conversation
in a truck with Bolejack while they were returning from the
Louis Service Center:
We had been discussing the truck that we had taken
up to Louis and I had picked him up, and I told him I
thought that I couldn't understand the need for a
union with Nebraska Bulk Transport, but they were
forcing me into some reassessment of the business
corporation's operations, and we would either have
to-well, the truck was being repaired and we were
running into high losses due to maintenance and that
we were down to the position we were either going to
have to sell off the trucks and put on some leased
operators or sell the businesses. In fact, I am still in
the same position.
I explained the position we had to go to. We were
either going to leased operators or we were going to
have to secure new financing, or try to get somebody
to take the thing over or merge the business with
somebody that had capital.
For the reasons give previously, I have credited
Bolejack's version.
NEBRASICA BULK TRANSPORT 147
K. The Conversation Between Petersen and Ron Grant on
July 8, 1977
On July 7, 1977, while Ronald Grant was at the ADM
plant in Lincoln, Nebraska, he received a telephone call
from Dean Petersen who told Grant that he wanted to talk
to Grant about an accident and a speeding ticket.
The next day, July 8, 1977, Petersen and Ronald Grant
had a conversation in the Respondent's office in Bennet.
Grant said that the conversation took place around 8:30 or
9, and just the two persons were present. Ronald Grant
testified with regard to that conversation as follows:
Dean Petersen started out with Roger Grant and he
got rid of him because of his points, the insurance
company wouldn't accept him, and Dennis Miller, he
fired him because he blew up a $7,000 motor, and then
he started in and he said, Dean said, "You guys picked
a poor time to come in with this union thing because
things was slow and he couldn't afford it and Herman
Brothers was aching to get in to do the hauling." And
then he started in about the ccident that I had on the
application, and I told him I made a mistake on the
application and I was thinking that tey wanted back
two years instead of three, so the accident I had was
back about three years, and then he said, well, he
would have to talk to the insurance company to see if
they would accept me to go ahead and work because
he didn't want to fire me because I was dependable
and a good worker. Then I asked Dean why it took so
long to check this out after all this time I'd been work-
ing there and he said, well, Dean said that Hazel evi-
dently overlooked the insurance cards in the file and
then they found them and they just held back and
thought they would send in two other employees' in-
surance cards and save 75 cents a check.
The foregoing findings of fact are based upon the testi-
mony of Ron Grant.
Petersen's version of his conversation with Ron Grant
on or about July 8, 1977, was that he discussed Ron
Grant's driving record with him at that time and advised
Grant that the insurance company had requested more in-
formation especially with regard to his accident on Sep-
tember 12. Petersen told Grant that Grant had not put this
on his application for employment, and that the insurance
company was concerned about it and wanted Petersen to
put Grant on probation, or hold Grant responsible for any
more violations. Petersen said that his employment would
be terminated if there were a traffic violation or damage to
equipment because the insurance company was reluctant
to write insurance, and they were going to put Grant on a
probationary status. Ron Grant told Petersen that he
would try to watch his driving closer, and that he wanted
to continue to work for the Respondent. During his direct
examination by the attorney for the Respondent, the fol-
lowing took place:
Q. Did you ever make a statement in that conversa-
tion that "you just picked a poor time to come in with
the union with things slow and Herman Brothers ach-
ing to get my hauling?"
A. I don't recall that, no.
Q. Did you ever say that to him at any time that
you recall?
A. I made [may] have made that comment out in
the outer office, but it would have been in a group.
For the reasons stated earlier, I have credited Ron
Grant's version.
L. The Conversation Among Petersen, Contreras, and Ron
Grant During the Week of Julv 11, 1977
One evening during the week beginning July 11, 1977,
Petersen had a conversation in the outer office of the Re-
spondent's facility with Sam Contreras and Ronald Grant.
Contreras related that conversation as follows:
Well, I was getting off duty and Ron Grant and I got
off duty at the same time. I don't know if we had the
same runs. And I had crude oil and I was coming in
that evening and I was walking in the outer office to
check the roster to see what we had the next day, and
we were leaving but we didn't get out of the office
when Dean Petersen came and approached us with a
handful of papers, and he had us read them and it
showed where he couldn't get credit cards and he was
proving to us how much he was in debt, and he said.
"if the union gets in, I'll close my doors and sell my
rights."
Contreras said that after looking at the papers which
Petersen had, they did reflect what Petersen had told them.
Contreras said that his reply to Petersen was, "I just told
him if I had the money I would buy his rights."
The findings of fact set forth above are based upon the
testimony by Contreras.
Ron Grant gave a similar account of that conversation.
He described what took place as follows:
I and Sam Contreras walked in the outer office and we
walked up to see what was on the board for the next
day and we were starting to leave and Dean Petersen
walked out of the office and he had a handful of pa-
pers and he showed us on those papers that he
couldn't get credit cards, they refused him from get-
ting credit cards. And then he said, "Well," he says,
"If you guys want the union in, that is your preroga-
tive, but," he says, "I know what I am going to do, I
am going to sell out and close the doors."
Petersen recalled having a conversation with Ron Grant
and Sam Contreras, but he was not certain of the date of
the conversation. Petersen testified:
They were coming in off their runs and I discussed
with them this union notification I had of organiza-
tion, and I told them I recognized their rights. In fact.
Sam was a member of the Teamsters, and anybody
can belong to the union, and that is their prerogatives,
and I have prerogatives and I was having a consider-
able hard time. We were having insurance problems,
we were having financial problems. We could not get
credit cards from credit card companies, which I
showed the letters. They), had seen the letters previous-
NEBRASKA BULK TNSPORT
,. . . . . A, A\ .
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ly and they had been on Hazel Taylor's desk and had Petersen denied in his testimony telling an employee that
been- Petersen thought that he had gotten rid of the two who had
* , , , , started it.
Counsel for the General Counsel urges in his brief that
I picked them up off her desk and showed them to Troxel's testimony regarding his conversation with Peter-
them- sen is supported by Respondent's Exhibit 37. Counsel for
* * * * * the General Counsel urges that exhibit shows that Troxel's
I said, "See, here are the letters from the credit card tractor unit, no. 913, was serviced at the shop on July 7,
companies that will not give us credit cards," and I 1977. Therefore, the General Counsel argues that ". .. this
said that I have got several courses of action that I can conversation most probably occurred on July 7, which was
take with regards to a union. I can either operate like the day Troxel's unit was serviced." The General Counsel
we are or I can sell my business. I can go to lease further contends that the conversation did not occur in the
operators or to more utilization of leased operators, or middle of August as claimed by Petersen, ". . . since
I can sit back and do nothing. Troxel's affidavit to C. A. Wells, an agent of the National
Labor Relations Board, was given on August 3."
For the reasons stated previously, I have credited the The attorney for the Respondent points out that Peter-
versions given by Contreras and Ron Grant. sen denied the conversation as related by Troxel, but that
Petersen did recall talking to Troxel in mid-August 1977
M. The Conversation Between Troxel and Petersen in when Petersen said that he must have fired somebody from
mid-July 1977 the Union because unfair labor practice charges had been
filed against him. The attorney for the Respondent also
In mid-July 1977, Troxel was we)rking in the shop area of points to Respondent's Exhibit 37, but he es that it is
the Respondent's facility. Troxel described his position as a corroborativ e of Petersen's testimony but he urges that exhibitcorroborative of Petersen's testimony because that exhibit
long distance truckdriver. At that point e had returned sherws that Troxel's truck was also serviced on August 13,
from a trip to the East Coast, and he was changing the oil 19,7.
in his truck. As noted earlier, the original unfair labor practice charge
Petersen came into the shop area and asked Troxel how in Ease 17-CA-7767 was filed on July 11, 1977; the charge
he was coming along. Troxel testified: alleges, among other things, that Dennis Miller and Roger
We talked about the normal process of where you Grant were terminated on July 5, 1977, because of their
have been, and, working, and I was changing oil in the union activities. Furthermore, Troxel's affidavit was given
truck. He asked me how I was coming and I said O.K. on August 3, 1977. Thus, it appears to be more probable
Something was said, and anyway, the statement was that the conversation did occur in mid-July 1977, as Troxel
made, "I think I got rid of the ones that started it." testified. For the reasons previously stated, I have based
And shortly after that he left. the findings of fact upon Troxel's version.
According to Troxel, Nick Bolejack was also in the shop
at that time, but he was 10 to 15 feet away from Troxel. N. The Conversation Between Bolejack and Petersen
Petersen did not direct any remarks to Bolejack. During the Week ofAugust 29 1977
At the hearing, Troxel said that he had heard at that
point that Dennis Miller and Roger Grant had been termi-
nated. He also stated that he was aware that a union orga- During the week of August 29, 1977, Bolejack had still
nizational campaign had been in existence at the Compa- arother conversation with Petersen one afternoon. Bole-
ny. He said that he first learned of the latter fact in June jack said that the conversation took place in the shop, and
1977. that just he and Petersen were present at the time. Momen-
Petersen recalled having a conversation with Troxel, but tarily, Bolejack did not recall the conversation when he
Petersen believed that the date of their conversation was was first asked about it, but he did recall the conversation
"probably mid-August." When Petersen was questioned by minutes later during his direct examination by the counsel
the attorney for the Respondent as to whether there was for the General Counsel, without examining his pretrial
any particular reason why Petersen recalled that the con- affidavit to refresh his recollection. Bolejack testified:
versation did not take place in mid-July, Petersen respond-
ed, "because I don't believe I had any charges filed against Well, Mr. Petersen came in and he said being as we
me by the National Labor Relations Board." Nevertheless, voted the Union in, he thought he was going to sell all
Petersen acknowledged that he had received a copy of the the trucks and hire all these drivers, or whatever you-
unfair labor practice charge in Case 17-CA-7767 on Wed- The findings of fact in this section are based upon the
nesday, July 13, 1977, at 8:30 in the morning. Petersen's testimony given by Bolejack.
version of his conversation with Troxel was as follows: Petersen said that he vaguely recalled a conversation
I went over to check how Larry was coming, and see with Bolejack about the last part of August 1977. With
when we could plan on being dispatched out. I think I regard to that conversation with Bolejack, Petersen was
did say, "I must have fired somebody from the union, asked if he recalled what was said and he responded, "No,
because I have unfair labor practice charges filed not other than the general thing that we were down to
against me." having to make some decisions on what we were going to
NEBRASKA BULK TRANSPORT 149
do with our equipment and how we were going to operate."
For the reasons stated earlier, I have credited Bolejack's
version.
0. The Changes Following the Union Representation
Election
1. The work assignments of Contreras
Contreras said that he experienced changes in his job
during 1977. Contreras testified:
I can't put dates on when it occurred because it was
gradual. When this union first took effect, it had no
effect on me, I was still making the job I was hired to
do. Slowly I ended up to where the last three months,
I could be a little wrong, give or take a couple of
weeks, that I would get nothing but $12 runs and the
newer men or leased men were hauling the job I was
hired to do. I ended up making sometimes $32 a day
for about sixteen to eighteen hours, because some of
these $12 runs, some other drivers, with good luck you
want to make them faster than five hours because it is
a slow run and a losing thing, which I don't mind.
When I first started I still used to get them once in a
while, everybody did, including the oldest man in se-
niority there. Everybody took their turn, but I don't
care to do it all the time because I can't support my
family.
At the time that Contreras was employed by the Respon-
dent, Contreras reached an understanding with Petersen to
the effect that Contreras did not want to travel interstate
because Contreras wanted to be with his family. Accord-
ingly, Contreras had had what he described as a "steady
run" to Fremont, Nebraska, and return. Contreras said
that he hauled crude oil from Archer-Daniels-Midland fa-
cility in Fremont, Nebraska, to be refined in Lincoln, Ne-
braska. He said that at a minimum he could make three
daily trips a day and that most of the time he made four
trips a day. He was paid $17 for each such run. If he made
four runs in a single day, Contreras said that his working
hours would be from 7 a.m. to approximately 8 p.m. or
8:30 p.m.
During the last 3 months of 1977, Contreras acknowl-
edged that he was asked by the Respondent to work one
Saturday, but he refused to do so. During that time, Contr-
eras was absent from work for 3 to 4 days in order to
attend a funeral; he was also ill at one time, and was away
from work I day because his wife had an operation.
The drivers' assignment records for the period of the
time from July 2 through December 30, 1977, were intro-
duced into evidence as Respondent's Exhibits 4 through
29. The records are maintained on a weekly schedule which
begins on Saturday. For example, the first weekly schedule
commences with Saturday, July 2, 1977.
Inadvertently, the first such schedule on a chronological
basis was marked by the court reporter as Respondent's
Exhibit 29, when actually Respondent's Exhibit 29 should
come chronologically before Respondent's Exhibit 29 and
then proceed to Respondent's Exhibits 4 through 28.
With regard to Respondent's Exhibit 29, Contreras com-
pared the information contained in that exhibit with the
information which he had kept on a daily basis in a note-
book. After making that comparison, Contreras said that
the information reflected on Respondent's Exhibit 29
agreed with the information he had in his notebook except
for the number of the truck which he drove. Respondent's
Exhibit 29 reveals that on Saturday, July 2, 1977, Contreras
hauled crude oil. He was off from work on Sunday, July 3,
and Monday, July 4, 1977. On Tuesday, Wednesday,
Thursday, and Friday of that week, which was July 5
through 8, 1977, Contreras also hauled crude oil.
With regard to Respondent's Exhibit 4, Contreras found
a conflict between what the Company's exhibit stated and
what he had written in his daily notebook. On Monday,
July 9, 1977, Respondent's Exhibit 4 shows that Contreras
hauled crude, whereas his notes reflected that his truck was
broken down on that particular day. The exhibit shows
that Contreras was off from work on Sunday and Monday,
July 10 and 11, 1977. The information shown on the ex-
hibit introduced as Respondent's Exhibit 4 was also in con-
flict with the handwritten notes of Contreras for Tuesday,
July 12, 1977. The exhibit indicated that he made a trip to
the Rainbow facility in Lincoln, Nebraska, whereas his
notes indicated that he was in the shop from 8 a.m. to 5:30
p.rr. The exhibit and Contreras' notes were in agreement as
to the rest of his assignments that week: On Wednesday
Ccntreras worked in the shop, on Thursday he hauled mo-
lasses to the Crete facility, and on Friday he had a trip to
the ADM facility in Kansas City.
While he was on the witness stand, Contreras also com-
pared his handwritten notes with the Respondent's Ex-
hibits 5 and 6 and found that they were in agreement as to
his assignments. Respondent's Exhibit 5 covers the period
from Saturday, July 16 through Friday, July 22, 1977, and
shows for that week that Contreras was off from work on
Saturday and Sunday; working in the shop on Monday
and Tuesday; hauling crude on Wednesday and on Thurs-
day; a trip to Crete Mills, and then hauling crude, and on
Friday hauling crude. Respondent's Exhibit 6, which cov-
ers a period from Saturday, July 23 through Friday, July
29, 1977, shows that Contreras hauled crude on Saturday;
w: s off from work on Sunday; hauled crude on Monday,
Tuesday, Wednesday and Thursday of that week, and on
Friday made two trips, one of which was to Russell Sto-
vers, and the other appears to be to Rossel Van.
Thereafter, Contreras was temporarily excused from the
witness stand in order to afford him an opportunity to
compare the information which is set forth in Respondent's
Exhibits 7 through 28 with the information contained in his
notebook. The next day of the trial, Contreras was recalled
to the witness stand but he did not give further testimony
with regard to his comparisons.
Respondent's Exhibit 7 covers the assignments for the
period of Saturday, July 30 through Friday, August 5,
1977. That document shows the following assignments for
Contreras for each day of that week: Saturday, hauling
crude; Sunday, off from work; Monday, a trip to Weavers
and hauling crude; Tuesday, off from work: Wednesday, a
trip to Crete Mills; Thursday, in the shop; Friday, a trip to
Russell Stover and working in the shop.
Respondent's Exhibit 8 covers the period from August 6
NEBRASKA BULK TNSPORT
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through 12, 1977. It shows the following with regard to
Contreras' assignments for that week. Saturday, off from
work; Sunday, off from work; Monday, hauling crude;
Tuesday, working in the shop; Wednesday, hauls to Alpo
and Crete; Thursday, hauling crude; Friday, a trip to Sto-
vers and what appears to be cleaning the tank.
Respondent's Exhibit 9 covers the period from August
13 through 19, 1977, for Contreras. It shows the following
assignments: Saturday, off from work; Sunday, off from
work; Monday, hauling crude; Tuesday, Rainbow and
then hauling crude; Wednesday, hauling crude; Thursday,
a trip to Russell Stover and also hauling crude; Friday,
hauling crude.
Respondent's Exhibit 10 covers the period from August
20 through 26, 1977, and shows the following assignments
for Contreras: Saturday, hauling crude; Sunday, off from
work; Monday, Nebraska City Molasses to Fred's Service
and also hauling crude; Tuesday, hauling crude; Wednes-
day, hauling crude; Thursday, off from work; Friday, off
from work.
Respondent's Exhibit II covers the period from August
27 through September 2, 1977, nd shows the following
assignments for Contreras: Saturday, off from work; Sun-
day, off from work; Monday a trip to Kitty Clover in
Omaha and a haul to Truck Equipment; Tuesday, hauling
crude; Wednesday, hauling crude; Thursday, a trip to
Weavers in Lincoln and also hauling crude; Friday, a trip
to Rainbow in Lincoln.
Respondent's Exhibit 12 covers the period from Septem-
ber 3 through 9, 1977, and shows the following assignments
for Contreras: Saturday, hauling crude; Sunday, off from
work; Monday, off from work; Tuesday, off from work;
Wednesday, a trip to Stover and hauling crude to ADM in
Kansas City; Thursday, a trip to ADM in Kansas City;
Friday, hauling crude.
Respondent's Exhibit 13 covers the period from Septem-
ber 10 through 16, 1977, and shows the following assign-
ments for Contreras: Saturday, hauling crude; Sunday, off
from work; Monday, hauling crude; Tuesday, a trip to
Russell Stover and then hauling crude; Wednesday, haul-
ing crude; Thursday, hauling crude; Friday, a trip to what
appears to be Goodmills.
Respondent's Exhibit 14 covers the period from Septem-
ber 17 through 23, 1977, and shows the following assign-
ments for Contreras: Saturday, off from work; Sunday, off
from work; Monday, off from work; Tuesday, off from
work; Wednesday, hauling crude; Thursday, hauling
crude; Friday, hauling crude.
Respondent's Exhibit 15 covers the time period from
September 24 through 30, 1977, and shows the following
assignments for Contreras: Satuday, hauling crude; Sun-
day, off from work; Monday, hauling crude; Tuesday, a
trip to Russell Stover and then hauling crude; Wednesday,
what appears to be a trip to Popcorn; Thursday, hauling
crude; Friday, hauling crude.
Respondent's Exhibit 16 covers the period from October
I through 7, 1977, and shows the following assignments for
Contreras: Saturday, off from work; Sunday, off from
work; Monday, a trip to Russell Stover and then hauling
crude; Tuesday, hauling crude; Wednesday, hauling
crude; Thursday, off from work; Friday, a trip to Russell
Stover and Norden Lab.
Respondent's Exhibit 17 covers the period from October
8 through 14, 1977, and shows the following assignments
for Contreras: Saturday, hauling crude; Sunday, off from
work; Monday, hauling crude; Tuesday, off from work;
Wednesday, a trip to Alpo and Crete; Thursday, off from
work; Friday, a trip to Stover and to Rainbow.
Respondent's Exhibit 18 covers the period from October
15 through 21, 1977, and shows the following assignments
for Contreras: Saturday, hauling crude; Sunday, off from
work; Monday, hauling crude; Tuesday, a trip to Weavers
and also hauling crude; Wednesday, a trip to Clary's house
in Kansas City, Missouri; Thursday, the same as the previ-
ous day; Friday, a trip to ADM in Kansas City.
Respondent's Exhibit 19 covers the period from October
22 through 28, 1977, and shows the following assignments
for Contreras: Saturday, hauling crude; Sunday, off from
work; Monday, hauling crude; Tuesday, a trip to Carrick
Farms; Wednesday, hauling molasses; Thursday, a trip to
Alpo and Crete and hauling crude; Friday, a trip to what
appears to be Lipton.
Respondent's Exhibit 20 covers the period from October
29 through November 4, 1977, and shows the following
trips for Contreras: Satuday, hauling crude if Contreras
wa ted to do so; Sunday, off from work; Monday, a trip to
CI.:ry's house and also handling crude; Tuesday, the same
as the previous day; Wednesday, hauling crude; Thursday,
a tip to Lipton and Independence, Missouri; Friday, haul-
ing crude.
Respondent's Exhibit 21 covers the period from Novem-
be 5 through 11, 1977, and shows the following assign-
ments for Contreras: Saturday, hauling crude; Sunday, off
from work; Monday, hauling crude and a trip to ADM in
Abilene; Tuesday, the same assignment as the previous
day; Wednesday, hauling crude; Thursday, a trip to ADM
in Kansas City; Friday, a trip to Russell Stover and also
hauling crude.
Respondent's Exhibit 22 covers the period from Novem-
ber 12 through 18, 1977, and shows the following assign-
ments for Contreras: Saturday, hauling crude; Sunday, off
from work; Monday, off from work; Tuesday, hauling
crude; Wednesday, a trip to Campbell's Soup in Omaha
ai d to Crete Mills; Thursday, a trip to Alpo and Crete
then hauling crude; Friday, hauling crude.
Respondent's Exhibit 23 covers the period from Novem-
ber 19 through 25, 1977, and shows the following assign-
ments for Contreras: Saturday, off from work; Sunday, off
from work; Monday, hauling crude; Tuesday, a trip to Lip-
ton and Independence; Wednesday, a trip to Gooch in
Ruby, Nebraska, and then hauling crude; Thursday,
Thanksgiving holiday; Friday, a trip to Gooch and then
hauling crude.
Respondent's Exhibit 24 covers the period from Novem-
ber 26 through December 2, 1977, and shows the following
assignments for Contreras: Saturday, hauling crude but
Contreras did not show up; Sunday, hauling crude but
Contreras did not show up; Monday, a trip to Stover's and
hauling crude; Tuesday, hauling crude; Wednesday, haul-
ing crude and a trip to Truck Equipment; Thursday, a trip
to Norden Lab and hauling crude; Friday, a trip to Russell
Stover and hauling crude.
Respondent's Exhibit 25 covers the period from Decem-
NEBRASKA BULK TRANSPORT 151
ber 3 through 9, 1977, and shows the following assignments
for Contreras: Saturday, hauling crude for 4 hours; Sun-
day, off from work; Monday, hauling crude; Tuesday,
hauling crude; Wednesday, hauling crude; Thursday, a trip
to Crete Mills and hauling crude; Friday, hauling crude.
Respondent's Exhibit 26 covers the period from Decem-
ber 10 through 16, 1977, and shows the following assign-
ments for Contreras: Saturday, hauling crude; Sunday, off
from work; Monday, a trip to Lipton and Independence;
Tuesday, a trip to Lipton and Independence; Wednesday,
a trip to Lipton; Thursday, a trip to Lipton; Friday, haul-
ing crude.
Respondent's Exhibit 27 covers a period from December
17 through 23, 1977, and shows the following assignments
for Contreras: Saturday, a trip to ADM and Kansas City;
Sunday, off from work; Monday, a trip to Lipton and an-
other location in Kansas City which is not clear on the
exhibit; Tuesday, the same as the previous day; Wednes-
day, a trip to Campbell Soup in Omaha and to Crete Mills;
Thursday, a trip to Crete Mills and hauling crude; Friday,
a trip to ADM in Kansas City.
Respondent's Exhibit 28 covers the period from Decem-
ber 24 through 30, 1977, and shows the following assign-
ments for Contreras: Saturday, hauling crude; Sunday,
Christmas Day; Monday, off from work; Tuesday, a trip to
Weaver's and to Crete Mills; Wednesday, a trip to Clary
House in Kansas City, Missouri; Thursday, a trip to ADM
in Kansas City; Friday, a trip to Ruby, Nebraska, to a
location which is not clear on the exhibit.
Contreras said that he received $17 for each trip to the
ADM plant in Fremont, $15 for each trip to Crete Mills,
$17 for trips to Omaha, Nebraska, and $12 for trips to
Russell Stover, Norten Lab, and Rainbow Bakery-all
three of which are locted in Lincoln, Nebraska.
Contreras said that he had claimed, at times, demurrage
for time that he spent waiting to load or unload. He said
that sometimes he was paid for such demurrage claims by
the Respondent on an hourly basis. However, he said that
he had not claimed demurrage for local runs because he
had not been told to do so.
The foregoing findings of fact are based on the testi-
mony of Contreras and documentary evidence. While the
conflicts between the handwritten notebook kept by Contr-
eras and the Respondent's records are not significant, I
have decided to rely upon the Respondent's records as
being more reliable. Contreras' notebook was not intro-
duced in evidence; and, although given an opportunity to
do so, he did not show any additional discrepancies be-
tween his notebook and the Respondent's records.
2. The work assignments of Bolejack and other drivers
During the first 8 months of 1977, Bolejack mostly did
mechanic's work for the Respondent, but occasionally took
small loads to the Russell Stover facility in Lincoln, Ne-
braska, or to Crete Mills. Prior to the election held on Au-
gust 27, 1977, Bolejack was paid on an hourly basis for
driving a truck to the Russell Stover facility or other short
runs. His rate of pay was $5 an hour. At the trial, Bolejack
acknowledged during cross-exmaination by the attorney
for the Respondent that he had been the only employee of
the Respondent who had been paid on an hourly basis for
such trips.
Bolejack described a change in his method of being paid
for driving a truck after the union representation election.
Bolejack testified:
After we voted the union in, I always checked my
check stubs to determine if there was a mistake, and I
noticed that I had like a Stover's run, like that, and
always put it in as my hours because I had been paid
by the hour to do it, and all of a sudden I was paid by
the load, which it takes me five hours to do it and it
costs me money to do it.
Instead of receiving his hourly rate of $5 an hour for the
Russell Stover trip, Bolejack said that he was paid a rate of
$12 for that particular run. Therefore, prior to the election
if the Stover run had taken 5 hours to complete, Bolejack
would receive $25 for that short run, whereas after the elec-
tion he received $12 for the trip. However, Bolejack ac-
knowledged during cross-examination that he did put
down on the invoice the amount of time that it took to
complete the Russell Stover run and sometimes he was
paid for a half hour or 2 hours. Bolejack explained at the
triz. that sometimes the Russell Stover run would take
from 3 to 7 hours and that some of this time was spent
sitting and waiting, rather than in driving the truck. Bole-
jack explained that the Russell Stover run involved hauling
condensed milk from Robert's Dairy in Lincoln, Nebraska,
acoss town to the Russell Stover facility which is also lo-
cated in Lincoln.
Bolejack looked at the board at the Respondent's facility
every morning. The information on the board indicated
what runs were to be made and the type of commodity
being hauled. With regard to driver Sam Contreras, Bole-
jack noticed that after the election Contreras was receiving
small runs using a small truck carrying condensed milk,
rather than the runs carrying crude oil which Contreras
had made to Fremont before the union representation elec-
tion. Bolejack pointed out at the hearing that he had to wash
the trucks driven by Contreras when Contreras returned to
th Respondent's facility, so this was another basis for
Bolejack's knowledge of the type of truck being driven by
Contreras.
With regard to driver Ronald Grant, Bolejack said that
Grant received more over-the-road hauls after the election,
but that he did perform some crude oil and other short
trips.
With regard to driver Bob Herrington, Bolejack said that
for a short period of time after the union representation
election, Herrington received shorter loads which did not
pay as much as the runs to California or New York which
Herrington used to receive before the election.
Bolejack stated that the Respondent had hired more
owner-operators after the election than the Respondent
had done before the election. He said that at the time of
the hearing the Respondent had two such leased drivers on
"steady." Bolejack said that those two leased drivers were
performing jobs which previously had been performed by
employees of the Respondent prior to the union representa-
tion election on August 27. 1977.
NEBRASKA BULK TNSPORT !
.s . . X . . . . .\ .
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bolejack defined a leased driver as "a man that owns his
own tractor that is leaded to this company to pull com-
modities for this company."
Bolejack acknowledged that a year prior to the union
representation election, the Respondent had one "steady"
leased driver, but during 1977, prior to August 27, 1977, the
Respondent had no "steady" leased drivers. However, dur-
ing that period of time, Bolejack identified the names of
two companies and one individual who had performed
work for the Respondent as lease operators. They were
Shirley Transfer, Dick's Transfer, and Harland Schulz.
The foregoing findings of fact are based upon Bolejack's
testimony. Ms. Martin said that her examination of the
Respondent's records for the first 6 months of 1977 re-
vealed that Bolejack did not have "any short loads." She
clarified that answer to indicate that she was talking about
loads to Russell Stover in Lincoln, Nebraska, in particular.
However, the records were not offered to support her testi-
mony.
Of course, Bolejack spoke of a change after the union
election, which was held on August 27, 1977. Thus, there
exists a gap of almost 2 full months between the end of the
period examined by Ms. Martin and the time of the union
election. For example, during that period, Respondent's
Exhibit 29 shows that Bolejack was assigned a trip to Rus-
sell Stover on Friday, July 8, 1977.
Respondent's Exhibit 5 shows that Bolejack was as-
signed a trip to Russell Stover on Friday, July 22, 1977.
Respondent's Exhibit 10 shows that Bolejack was as-
signed a trip to Russell Stover on Wednesday, August 24,
1977.
Following the union election, Respondent's Exhibit II
shows that Bolejack was assigned a trip to Russell Stover
on Tuesday, August 30, 1977.
Respondent's Exhibit 20 shows that Bolejack was as-
signed a trip to Russell Stover on Thursday, November 3,
1977.
Respondent's Exhibit 22 shows that Bolejack was as-
signed a trip to Russell Stover on Friday, November 1,
1977.
Respondent's Exhibit 26 shows that Bolejack was as-
signed a trip to Russell Stover on Monday, December 12,
1977.
After considering the foregoing, I find that the Respon-
dent's records support Bolejack's testimony that he made
trips to Russell Stover both before and after the union elec-
tion held on August 27, 1977.
According to Petersen, only one customer of the Re-
spondent did not pay demurrage. That customer was Rus-
sell Stover Candy which paid a rate of $12 for a load of
condensed milk. Petersen said that an employee's listing of
demurrage time on the employee's timecard was not suffi-
cient, in his view, because the employee must have backup
documents to support the demurrage charge.
Respondent's Exhibit 3 revealed the following earnings
for Sam Contreras for the year 1977:
Total for year $10,425.30
Respondent's Exhibit 30 revealed the following earnings
for Ronald Grant for the year 1977:
First quarter
Second quarter
Third quarter
Fourth quarter
Total for year
$ 676.26
2,423.46
2,426.37
2,774.65
$8,300.74
Respondent's Exhibit 34 revealed the following earnings
for Robert F. Herrington for the year 1977:
First quarter
Second quarter
Third quarter
Fourth quarter
Total for year
$ 3,342.69
2,929.66
3,480.69
3,549.75
$13,302.79
Respondent's Exhibit 35 revealed the following earnings
for Nick Bolejack for the year 1977:
First quarter
Second quarter
Third quarter
Fourth quarter
Total for year
$ 2,139.12
2,028.69
2,182.00
2,242.73
$ 8,592.54
The foregoing findings are based on documentary evi-
dence.
According to Petersen the Respondent has utilized lease
operators in 1975, 1976, and 1977. Petersen explained that
the Respondent began purchasing tractors and trailers
from Dean H. Petersen and Son which was liquidating its
assets at the time. Petersen had formerly been president of
that company which was owned by his father. Petersen
said that he hired some drivers who had previously been
employed by Dean H. Petersen and Son. By October 1976
the Respondent had purchased 10 tractors, and therefore
ceased purchasing tractors.
Under Petersen's management, the Respondent elimi-
nated the hauling of Di-Cal and Si-Cal and the Respon-
dent increased its hauling of anhydrous ammonia and dry
fertilizers. Originally, the Respondent had the authority to
operate from the Mississippi River to the West Coast.
However, during 1976 and 1977, the Respondent obtained
the authority to haul certain commodities in 48 States.
Petersen said that normally lease operators have their
own tractors, but that they may use Respondent's equip-
ment. Petersen said that he handled the billing and collec-
tion of moneys and that the lease operators were paid a
percentage of the gross.
During his direct examination by the attorney for the
Respondent, Petersen was questioned as to the policy of
the Respondent during 1977 with regard to the use of lease
operators. Petersen testified:
Q. During the year 1977 what was Nebraska Bulk
Transport policy with relation to using leased opera-
tors? How were they used and when-the dates are
reflected in the exhibit. What was the policy of Ne-
braska Bulk Transport during the year 1977 for using
leased operators?
A. We used lease operators during the anhydrous
First quarter
Second quarter
Third quarter
Fourth quarter
$ 2,801.00
2,490.07
2,417.55
2,716.68
NEBRASKA BULK TRANSPORT 153
season, because I think Nick Bolejack may have
hauled a couple of loads. Most of the drivers did not
like to become involved in hauling anhydrous because
it requires a great deal of waiting time, and besides
that, the mere fact that you've got to go at odd hours
to get the products delivered. At some places they
want it at 10 o'clock at night or 3 o'clock in the morn-
ing. Most of my drivers did not do that. Plus we only
had one tractor that works with our trailer. You have
to pump the product off. We just hauled it very spo-
radically, so I used a lease operator pulling the anhyd-
rous tanker all through the season.
The only other time we would use lease operators,
the oil schedule fluctuations of a small company like
ours are such that we may have seven loads today and
one load tomorrow.
Q. Of crude?
A. Of anything. Yesterday we were hauling crude,
today they shut us off with crude. I'm talking about
the present day, right now, we have no crude to haul,
so we have men sitting today, and we-this is some-
thing we were running thre and four men on for
many days, and all of a sudden they stop you, and
there happens to be nothing else going on, and it puts
you in a rather precarious position to provide service,
and the only thing a company such as ours has to sell
is service, and if we can't perform they will get another
carrier to do it. And there are a lot of carriers under
the same position we have. We have seven to ten loads
one day, and if we have got-maybe we would dis-
patch three men long distance and we're short, and
maybe we have three loads we can't cover, then we
would call a lease operator in and have him haul vege-
table oil. Normally we use them on the loads that my
drivers didn't particularly like, which were soybean
meal and anhydrous ammonia loads.
Petersen stated at the trial that General Counsel's Ex-
hibits 2(a}-2(h) were not a complete list of the Company's
records regarding lease operators. For example, Petersen
pointed out that the records did not show the work per-
formed by Dick's Transfer in June and July 1977 or the
work performed by Alvin Hunick, and Petersen estimated
that there were one or two others who did not do a suffi-
cient amount of business with the Respondent for the Re-
spondent to make a separate account for them.
The Company's records which were introduced as Gen-
eral Counsel's Exhibits 2(a) and 2(b) revealed the following
with regard to the number of trips hauled by Harlan Schulz
for the Respondent. In 1975, the records which were intro-
duced at the trial show that Schulz made 23 hauls for the
Respondent between November 13 and December 16,
1975. For the year 1976, the Company's records which
were introduced at the trial show only three hauls by
Schulz for the Respondent, and those were between Febru-
ary 5 and 7, 1976.
For the year 1977, the records show 128 trips under the
"date hauled" column for that year between the dates of
October 18 and December 30, 1977. For 1978, the records
showed 23 trips under the "date hauled" column between
the dates of January 3 and 17, 1978.
General Counsel's Exhibit 2(c) with regard to the trips
performed by Shirley Ag Services, Inc., for the Respondent
revealed that that lease operator performed approximately
171 trips under the "date hauled" column of the Respon-
dent's records. Those trips for Respondent were performed
between September I and December 23, 1977. For 1978.
the Company's records show under the "date hauled" col-
umn that Shirley Ag Services, Inc., performed 18 trips for
the Respondent between January 3 and 13, 1978.
General Counsel's Exhibit 2(d) revealed 15 trips under
the "date hauled" column performed by Herman Stones
for the Respondent between October 6 and November I,
1977.
General Counsel's Exhibit 2(c) revealed under the "date
hauled" column that Fredonia Truck Lines performed ap-
proximately 14 trips for the Respondent between Septem-
ber 9 and December 22, 1977.
General Counsel's Exhibit 2(f) revealed under the "date
hauled" column that Leon Fiala performed two trips for
the Respondent on November 14, 1977.
General Counsel's Exhibit 2 (g) revealed under the "date
hauled" column that Harold Byram performed approxi-
mately 26 trips for the Respondent in 1976 between May
10 nd July 5, 1976.
(jeneral Counsel's Exhibit 2(h) revealed under the "date
hauled" column that Fred Keasling performed approxi-
mately nine trips for the Respondent during 1975 between
December 2 and 5, 1975. The records from the Company
further show that during 1976 Keasling performed approxi-
mately 43 trips for the Respondent between April 22 and
June 27, 1976. With regard to 1977, the Company's records
showed that Keasling performed approximately 37 trips for
the Respondent between February 7 and April 25, 1977.
The figures give above are close approximations of the
number of trips using the "date hauled" column as a basis
for counting each trip.
Petersen testified that there had been no change in the
job duties of Contreras during the last 6 months of 1977.
He said there had been two or three long hauls made by
Contreras, but Petersen described those as emergency situ-
ations.
Petersen also said that there had been no specific change
in the job duties of Ron Grant since the middle of 1977,
but Petersen acknowledged that Ron Grant did receive
some of the longer hauls since that time to Kansas City
and to Wichita.
Petersen said that there had been no change in the job
duties of Bolejack or Herrington. Petersen stated that Bole-
jack had always been paid by the load both prior to June
1977 and afterwards, unless there had been an administra-
tive error.
3. The work assignments of Ron Grant
According to Ronald Grant's recollection, he had earned
more money during the last quarter of 1977 than he had
earned in any of the first three quarters of 1977. However,
he described a change in his job duties following the repre-
sentation election. Ronald Grant testified:
Well, it's hard to say because after the union was vot-
NEBRASKA BULK TRANSPORT '53
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ed in we was still hauling crude but gradually it ta-
pered off to where it was, I was sent more out of town
over the road and, of course, that cost more to eat and
everything and putting in a lot more hours. We were
pretty near expected to run day and night and you
never know what time you will get home.
Prior to the change, Ronald Grant said that from the
beginning of his employment by the Respondent he had
been hauling from Fremont to the ADM plant in Lincoln,
Nebraska. He said that he averaged three to four trips a
day, 6 days a week, and that he was paid $17 for each load.
After the election, he said he made trips to Colorado, Kan-
sas City, and Boston, Massachusetts. He was also paid by
the load for those trips and he recalled that the trip to
Kansas City was $50 a load.
The foregoing is based upon Ron Grant's testimony.
4. The lack of bargaining concerning the use of lease
operators
Schoening testified that following the representation
election among the employees of the Respondent on Au-
gust 27, 1977, the Respondent did not contact Schoening
concerning the use of lease operators by the Respondent.
At first, during his direct examination by the attorney
for the Respondent, Petersen indicated that the Union had
requested discussion with regard to the Respondent's use
of lease operators. The following took place:
Q. (By Mr. Guthery) To the best of your recollec-
tion, since the union election, August 27, 1977, have
you ever been requested by Mr. Schoening or a repre-
sentative of his union to bargain or discuss the use of
leased operators by Nebraska Bulk Transport, Inc.?
A. I believe during one of our negotiating sessions,
they had requested this to be discussed, and my other
attorney advised it was a non-negotiable item.
However, during the cross-examination of Petersen by
the attorney for the Charging Party, Petersen indicated
that he was not sure whether the Union had brought up the
subject, or whether the discussion was just between Peter-
sen and his attorney.
Up to the timeof the hearing, there had been two bargaining
sessions between the Respondent and the Union. They were
held on October 18 and November 29. 1977.
The findings of fact in this section are based upon the
testimony of Schoening and Petersen. Regardless of wheth-
er the attorney told the Union that the matter was "non-
negotiable," it is clear that was the Respondent's position,
and no such bargaining on that subject took place.
P. The Respondent's Letter to Employees
The Respondent introduced into evidence a document
entitled, "Position letter of Nebraska Bulk Transports, Inc.
regarding NLRB election of August 27, 1977." (See Resp.
Exh. 38.)
Petersen testified that the letter containing the Respon-
dent's position was hand delivered to every employee of
the Respondent about I week or 10 days prior to the elec-
tion on August 27, 1977.
The letter is 3-1/2 pages long, typewritten, and double-
spaced. In addition, there is attached to the letter a sum-
mary of financial statement revealing the amounts owed by
the Respondent and the amounts owed by Petersen.
The letter goes into specific detail concerning the per-
sonal financial obligations of Petersen and the Respon-
dent. The entire document is in evidence, and therefore it is
not necessary to disclose all of those financial details here.
Anyone with a need to review the record may examine the
entire document.
At the top of the third page of the letter, there appears
the following:
If a union contract is signed, I believe that increased
costs and loss of flexibility will require changes in
methods of operations in order to remain economi-
cally sound, and if those changes are not successful,
the signing of a union contract could mean the closing
of our operation.
The findings of fact in this section are based upon the
testimony of Petersen and documentary evidence.
Q. Conclusions
1. he General Counsel's motion to amend the complaint
After all of the parties had rested their cases and just
prior to the close of the hearing, counsel for the General
Counsel made a motion to amend the General Counsel's
complaints in this proceeding by adding certain additional
allegations. I took the General Counsel's motion under
consideration and advised the parties that the motion
would be ruled upon in this Decision. That procedure af-
forded me an opportunity to argue the matter in their re-
spective briefs.
The attorney for the Respondent addresses this issue in
his brief. In part, the attorney for the Respondent makes
the following argument:
It is undisputed in the record that the request by the
Board to amend its complaints 17-CA-7767 and 17-
CA-7868 are new matters not raised before the hear-
ing and not raised until actually the conclusion of all
evidence of the hearing. They are not supported by
any charge by the Charging Party. The charges which
were the basis for both complaints were never
amended.
The Respondent is required to meet evidence pro-
duced at a hearing regarding the charges and allega-
tions contained in the complaints, it is not required to
anticipate what other items the Board or Charging
Party might consider to be violations of the act and
produce evidence to rebut those hypothetical situa-
tions in advance of being fully advised of the charges.
The Respondent was not advised whatsoever of any
additional allegations until all evidence had been con-
cluded. Then the Board attempts to amend its com-
plaint to allege additional charges through testimony
that it believes constitutes the basis for additional
charges that came out during the hearing. The Re-
spondent was not required to anticipate what testi-
NEBRASKA BULK TRANSPORT 155
mony the Board would thint, would be a basis for
additional charges or to explore or explain that testi-
mony. To do so would not only offend the rules and
requirements of the Act, but offends the elemental
concepts of due process.
For the full argument presented by the Respondent, see
the Respondent's brief.
Counsel for the General Counsel argues in his brief as
follows:
At the conclusion of the hearing, General Counsel
moved to amend his complaint to allege this action as
a violation of Section 8(a)(1) in the form of interroga-
tion and surveillance (488: 2-13). General Counsel re-
spectfully submits that this amendment was timely
since the evidence was elicited from the Respondent's
own witness at the conclusion of the hearing and was
unknown to General Counsel prior to Taylor testify-
ing. Moreover, General Counsel respectfully submits
that the issue of Petersen's interrogation and surveil-
lance was fully litigated at the hearing. The Respon-
dent was sufficiently advised that this conduct was in
issue when General Counsel amended its complaint.
Being so advised, the Respondent chose not to recall
Petersen to rebut the testimony of its witness, Mrs.
Taylor. Accordingly the Administrative Law Judge
should not decline to consider this evidence of possi-
ble violations of Section 8(a)(1) of the Act. Preiser Sci-
entific, Inc., 158 NLRB 1375, 1376-1377 (1966); Vegas
Village Shopping Corp., 229 NLRB 279 (1977). This
argument applies to other amendments by the General
Counsel at the conclusion of the hearing.
In his motion, counsel for the General Counsel seeks to
add a subparagraph (d) to paragraph 5 of the complaint in
Case 17-CA-7767 to allege that Petersen interrogated one
of the employees of the Respondent concerning that
employee's and other employees' union activities on vari-
ous dates after July 5, 1977.
Counsel for the General Counsel also seeks to add a
subparagraph (e) to paragraph 5 of the complaint in Case
17-CA-7767 to allege that Petersen kept under surveillance
the union activities of Respondent's employees on various
dates after July 5, 1977.
Counsel for the General Counsel further seeks to add
subparagraph (f) to paragraph 5 of the complaint in Case
17-CA-7767 to allege that Petersen threatened to close Re-
spondent's operations if Respondent's employees selected
the Union as their collective-bargaining representative in a
position letter of Nebraska Bulk Transports, Inc., which
was distributed to the employees I week to 10 days prior to
August 27, 1977.
With regard to the General Counsel's complaint in Case
17-CA-7868, counsel for the General Counsel moves to
amend that complaint by adding the following to the ex-
isting paragraph 10 of that complaint: "And by refusing
and continuing to refuse to bargain collectively with the
Union about the use of lease operators and sub-contract
bargaining unit work."
In its original form, paragraph 10 of General Counsel's
complaint in Case 17-CA-7868 read as follows:
Since on or about September 1, 1977. and at all times
thereafter, the Respondent has failed and refused, and
continues to fail and refuse, to bargain in good faith
with the Union as the duly certified exclusive bargain-
ing representative of all the employees in the unit de-
scribed above in paragraph 7 by unilaterally and with-
out sufficient prior notice to, or consultation with, the
Union, changing the terms and conditions of employ-
ment of the employees in the said unit, by subcon-
tracting bargaining unit work to lease operators.
In a case where another counsel for the General Counsel
sought to amend the General Counsel's complaint by mak-
ing his request for the first time in a post-hearing brief filed
with another Administrative Law Judge had ". .. erred by
not permitting the General Counsel to amend the com-
plaint .... " See Herbst Supply Co., Inc., 222 NLRB 448,
footnote 1 (1976).
In another case, the Board disagreed that a respondent's
surveillance should be considered only as background evi-
dence in determining the respondent's overall motivation,
but not as a violation of Section 8(a)( ) of the Act in view
of the failure of another counsel for the General Counsel to
move to amend the complaint to allege such a violation.
Th Board found that the surveillance was sufficiently re-
lated to the subject matter of the complaint and that the
matter was "fully litigated" at the trial. See Alexander Daw-
son, Inc. d/b/a Alexander's Restaurant and Lounge, 228
NLRB 165 (1977).
In still another case, the Board found, in disagreement
with another Administrative Law Judge, that the failure of
the respondent in that case to question one witness or to
cross-examine another witness did not warrant the conclu-
sion that the matter was not "fully litigated" at the trial
since the respondent ". . . did not avail itself of the oppor-
tunity to do so." See Harry Edison, Divadar Marcovici and
Bertram Fried, a Co-Partnership doing business as Seaview
Manor Home for Adults, 222 NLRB 596 (1976).
Citing its earlier Decision in Monroe Feed Store, 112
NLRB 1336 (1955), the Board stated in H C. Thomson,
Inc., 230 NLRB 808, 811 (1977):
And, while this statement was not alleged as a sepa-
rate violation of Section 8(a)( 1), it was fully litigated at
the hearing. We have long held "that when an issue
relating to the subject matter of a complaint is fully
litigated at a hearing . . . the Board [isJ expected to
pass upon it even though it is not specifically alleged
to be an unfair labor practice in the complaint." Ac-
cordingly, we find that Turrin's statement to Ferrari
that in the event he were rehired he would have to join
the MMP interferes with Ferrari's Section 7 rights and
is therefore a violation of Section 8(a)(1).
In Niagara Falls Memorial Medical Center, Inc.. 236
NLRB 342 (1978), the Board held footnote 2:
Respondent has excepted to the Administrative Law
Judge's conclusion that it violated Sec. 8(a)( ) of the
Act by interrogating and threatening Stephen Ward in
July 1976. Respondent argues that neither the charge
dated November 5, 1976, nor the complaint, dated
NEBRASKA BULK TRANSPORT '5
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
February 17, 1977, alleged that these incidents were
unlawful and, therefore, any finding based thereon is
barred under Sec. 10(b) of the Act. Respondent fur-
ther argues that these incidents were not fully litigat-
ed. The original charge in this proceeding, alleged, in-
ter alia, that by "the above and other acts,"
Respondent has interfered with, restrained, and
coerced employees in the exercise of the rights guaran-
teed in Sec. 7 of the Act. We have held that it is not
necessary to allege each unfair labor practice to be
litigated. See Benner Glass Co., 209 NLRB 686, 687
(1974); FTS Corp. (Division of Hilco), 184 NLRB 787,
789 (1970). We further note that the interrogation of,
and the threat to, Ward in July 1976 were related to
similar unlawful threats made to employees herein, in-
cluding Ward. Furthermore, although counsel for the
General Counsel indicated at the hearing that she was
"not contending that these conversations are 8(a)(1),
but merely background, because they are 10(b)," Re-
spondent obviously did not rely on the disclaimer by
the counsel for the General Counsel, as it cross-exam-
ined Ward about the incidents and the matter was
fully litigated.
See also other cases where the Board found that the mat-
ter in question had been "fully litigated." Douglas Lantz
d/b/a and/or a/k/a Alcan Forwarding Company, Transpor-
tation Consultant, and A FCO, et al., 235 NLRB 994, foot-
note 2 (1978); Meilman Food Industries, Inc., 234 NLRB
698, 699, footnote 4 (1978); Southwest Distbributing Co.,
Inc., 232 NLRB 635, footnote 1 (1977); General Dynamics
Corporation, 227 NLRB 334, footnote 2 (1976).
In the instant case, counsel for the General Counsel's
motion is predicated upon testimony from the Respon-
dent's witnesses and from one of Respondent's exhibits.
Specifically, the allegation of additional interrogation by
Petersen and the allegation pertaining to surveillance by
Petersen rests upon the testimony of Respondent's witness,
Hasel Taylor. Ms. Taylor was the final witness called by
the Respondent during the Respondent's case, and the
manner in which the subject matter came up has been set
forth earlier herein in section F. Ms. Taylor's testimony
stands uncontradicted and undenied on the record.
Counsel for the General Counsel predicates his addition-
al allegation of a threat to close Respondent's operations if
the employees selected the Union as their collective-bar-
gaining representative on a statement made in Respon-
dent's letter to its employees which was introduced into
evidence as Respondent's Exhibit 38. Counsel for the Gen-
eral Counsel points to the first paragraph on page 3 of
Respondent's own exhibit as a basis for that additional
allegation.
The amendment to paragraph 10 of the complaint in
Case 17-CA-7868 appears to be based upon Petersen's tes-
timony that the matter of using lease operators was a non-
negotiable item.
Finally, it is noted that the complaint in Case 17 CA-
7767 already alleged interrogation by Petersen in para-
graph 5(a) and threats by Petersen to close the Respon-
dent's facility if the employees selected the Union as their
collective-bargaining representative in subparagraph (b)
and subparagraph (c) of paragraph 5. In addition, the alle-
gation of paragraph 10 of the complaint in Case 17-CA-
7868, as originally alleged, has been set forth above.
Considering the Board precedents referred to above, and
particularly considering the nature of the allegations and
their relationship to the similar allegations contained in the
complaints prior to the hearing, and particularly noting that
the basis for the proposed amendments by the General Coun-
sel rests upon testimony from Respondent's own witnesses
and from one of Respondent's own exhibits, I conclude that
the counsel for the General Counsel is entitled to have his
motion to amend the complaints granted in these circum-
stances. Accordingly, I shall hereby grant the General
Counsel's motion to amend his complaints as stated on the
record.
2. The conversations with Petersen and the Respondent's
position letter to employees
In P. B. and S. Chemical Company, 224 NLRB 1, 2
(1976), the Board stated, ". . . we first note that the basic
premise in situations involving the questioning of employ-
ees by their employer about union activities is that such
questions are inherently coercive by their very nature."
See also Crown Zellerbach Corporation, 225 NLRB 911
(1976), where the Board found that the questioning of an
employee was violative of Section 8(a)(1) of the Act even
though the questioning took place in the absence of a spe-
cific threat or promise of benefit. In addition, see the
Board's opinion in Quemetco, Inc., a subsidiary of RSR Cor-
poration, 223 NLRB 470 (1976), concerning a "friendly"
interrogation of an employee as being violative of Section
8(a)(1) of the Act.
With these Board precedents in mind, I conclude that
the interrogation of Carolyn Grant by Petersen, as set forth
in section H,3, herein, was violative of Section 8(a)(l) of
the Act since Ms. Grant was the wife of an employee of the
Respondent at that time and the questioning was concern-
ing employees' union activities.
I also conclude that the interrogation of Ms. Taylor by
Petersen, as set forth in section F herein, concerning em-
ployees' union activities and the surveillance of the em-
ployees' union activities by observing the persons with
whom Ms. Taylor went to lunch, and then questioning Ms.
Taylor as to whether the Union was discussed among the
employees at lunch, further violated Section 8(a)(l) of the
Act.
In N.L.R.B. v. Gissel Packing Co., Inc., et al., 395 U.S.
575 (1969), the Supreme Court held at 618-619:
Thus, an employer is free to communicate to his em-
ployees any of his general views about unionism or
any of his specific views about a particular union, so
long as the communications do not contain a "threat
of reprisal or force or promise of benefit." He may
even make a prediction as to the precise effects he
believes unionization will have on his company. In
such a case, however, the prediction must be carefully
phrased on the basis of objective fact to convey an
employer's belief as to demonstrably probable conse-
quences beyond his control or to convey a manage-
NEBRASKA BULK TRANSPORT 157
ment decision already arrived at to close the plant in
case of unionization. See Textile Workers v. Darlington
Mfg. Co., 380 U.S. 263, 264, footnote 20 (1965). If
there is any implication that an employer may or may
not take action solely on his own initiative for reasons
unrelated to economic necessities and known only to
him, the statement is no longer a reasonable pre-
diction based on available facts but a threat of retalia-
tion based on misrepresentation and coercion, and as
such without the protection of the First Amendment.
We therefore agree with the court below that "[c]on-
veyance of the employer's belief, even though sincere,
that unionization will or may result in the closing of
the plant is not a statement of fact unless, which is
most improbable, the eventuality of closing is capable
of proof." 397 F.2d 157, 160. As stated elsewhere, an
employer is free only to tell "what he reasonably be-
lieves will be the likely economic consequences of
unionization that are outside his control," and not
"threats of economic reprisal to be taken solely on his
own volition." N.L.R.B. v. River Togs, Inc., 382 F.2d
198, 202 (2d Cir. 1967).
The Board found a violation of Section (a)( ) of the Act
where the Board concluded that the company president, "
. . .told employees that the Company could not afford a
union and would probably close down if the Union were
voted in." The Terminal Taxi Company, d/b/a Yellow Cab
Co., 229 NLRB 643, footnote 1 (1977).
With the foregoing precedents in mind, I conclude that
Petersen did threaten to close the Respondent's facility, sell
its trucking equipment and lease its hauling operations to
lease operators, as more fully described in section L and
section N herein, since the threats were related to the selec-
tion of the Union by the employees as their collective-bar-
gaining representative.
In Respondent's Exhibit 38, the Respondent stated to its
employees:
If a union contract is signed, I believe that increased
costs and loss of flexibility will require changes in
methods of operations in order to remain economi-
cally sound, and if those changes are not successful,
the signing of a union contract could mean the closing
of our operation.
Considering particularly the earlier threats referred to
above of what action the Respondent would take if the
employees selected a union, I also conclude that the state-
ment quoted above from the Respondent's position letter
to employees also violates Section 8(aX1) of the Act. At the
time at which the letter was distributed to the employees,
the Respondent could not know, prior to the union repre-
sentation election, what the demands of the Union might
be in the future if the Union won the election, or what the
results might be from good faith bargaining with the
Union. Thus, at that time, the statement in Respondent's
Exhibit 38 was in the words of the Gissel decision "no lon-
ger a reasonable prediction based on available facts but a
threat of retaliation based on misrepresentation and coer-
cion, and as such without the protection of the First
Amendment.'
Based upon the credited testimony as more fully de-
scribed in section J herein, I conclude that Petersen also
threatened to refuse to bargain with the Union selected by
the employees as their collective-bargaining representative
when he told Bolejack, "I am not going to negotiate any-
way." I find that threat in those circumstances to be a
further violation of Section 8(a)(l) of the Act.
3. The terminations of Dennis Miller and Roger Grant
In considering whether the Respondent's terminations of
Dennis Miller and Roger Grant on July 5. 1977, were vio-
lative of Section 8(a)(1) and (3) of the Act, it is helpful to
study and reflect upon the court's holding in N.LR.B. v.
Ace Comb Company, 342 F.2d 841 (8th Cir. 1965):
It has long been established that for the purpose of
determining whether or not a discharge is discrimina-
tory in an action such as this, it is necessary that the
true, underlying reason for the discharge be estab-
lished. That is, the fact that a lawful cause for dis-
charge is available is no defense where the employee is
actually discharged because of his Union activities. A
fortiori, if the discharge is actually motivated by a law-
ful reason, the fact that the employee is engaged in
Union activities at the time will not tie the employer's
hands and prevent him from the exercise of his busi-
ness judgment to discharge an employee for cause
.... It must be remembered that it is not the purpose
of the Act to give the Board any control whatsoever
over an employer's policies, including his policies con-
cerning tenure of employment, and that an employer
may hire and fire at will for any reason whatsoever, or
for no reason, so long as the motivation is not viola-
tive of the Act.
In The Youngstown Osteopathic Hospital Association, 224
NLRB 574, 575 (1976), the Board held:
Under Board precedent if part of the reason for ter-
minating an employee is unlawful, the discharge vio-
lates the Act. As the Board and the courts have so
often indicated, the issue is not whether there existed
grounds for discharge apart from union or protected
concerted activities. That the employer has ample rea-
son for discharging an employee is of no moment. An
employer may discharge an employee for any reason,
good or bad, so long as it is not for union or protected
concerted activity. Even if the discharge is based on
other reasons as well, if the discharge is partly in repri-
sal for protected concerted activity, it is unlawful.
The Board reiterated its adherence to the holding in
Youngstown Osteopathic Hospital in its Decision in O & H
Rest., Inc., Trading as the Backstage Restaurant, 232 NLRB
1082, 1083 (1977). Furthermore, the Board pointed out (fn.
4) therein that, while the allegation in Youngstown Osteo-
pathic Hospital dealt with a discharge for concerted pro-
tected activity under Section 8(a)(1) of the Act, and the
allegation in The Backstage Restaurant involved a dis-
charge in violation of Section 8(a)(3) of the Act, ". . . the
Board has long applied the same legal standards for 8(a)(3)
and (I) discharges."
NEBRASKA BULK TRANSPORT '5
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With these precedents in mind, it is noteworthy that
Dennis Miller was the employee who initiated the union
organizational activities among the employees of the Re-
spondent. Miller was the one who contacted business rep-
resentative Schoening, and Miller was the one who initially
received the union authorization cards from Schoening and
distributed them to other employees. With regard to Roger
Grant, he was one of the employees who signed a union
authorization card at the request of Miller; in addition,
Grant solicited two other employees of the Respondent to
sign union authorization cards. While neither Miller nor
Grant personally informed Petersen of his union activities
prior to July 5, 1977, the fact that the union activities took
place among a relatively small number of employees can-
not be ignored.
Also, the proximity between the terminations of Miller
and Grant in relation to the extensive union activity among
Respondent's employees is a matter to be considered. The
representation petition was filed by the Union on June 27,
the Union's telegram to the Respondent was telephonically
delivered on June 28, and as set forth in section E herein,
Petersen inquired of Bolejack on June 27, 28, or 29 about
"strangers" being on the premises.
The violations of Section 8(a)(l) of the Act which have
been found herein have been weighed in connection with
the issues raised by the terminations of Miller and Grant.
Although not alleged as a violation of Section 8(a)(1) of the
Act, Petersen's statement to Troxel in mid-July 1977, as set
forth in detail in section M herein, that "I think I got rid of
the ones that started it." is of significance in determining
Respondent's motivation for discharging Miller and Grant.
It seems clear from the context and timing of that conver-
sation between Petersen and Troxel that Petersen was re-
ferring to Miller and Grant as the ones who had started the
union organizing campaign. Furthermore, as described in
more detail in section K herein, Petersen's conversation
with Ron Grant on July 8, 1977, mentions Respondent's
asserted reasons for terminating Miller and Grant, but also
Petersen mentions the union activities of Respondent's em-
ployees in the same conversation. It will be recalled that
Petersen told Ron Grant that, "You guys picked a poor
time to come in with this union thing because things was
slow and he couldn't afford it and Herman Brothers was
aching to get in to do the hauling." It seems apparent that
the mention of the employees' union activities in the con-
text of telling Ron Grant of the Respondent's reasons for
terminating Miller and Roger Grant was more than mere
coincidence.
With all of the foregoing comments in this section in
mind, and after reviewing the Board's Decision in Wiese
Plow Welding Co., Inc., 123 NLRB 616 (1959), I conclude
that it is appropriate to draw an inference under the fore-
going circumstances that the Respondent had knowledge
of the union activities of Miller and Grant prior to termi-
nating them.
As set forth in section G herein, I conclude, based on the
credited testimony, that Miller had permission from Peter-
sen to take time off from work in order to move, and thus
Miller's absences from work on June 29 and 30 were not
the real reasons for his termination. As set forth in section
G herein, Miller's truck had become inoperable on Mon-
day evening, June 27 and he explained the problem when
he was called the next morning, June 28, 1977. The other
matters mentioned in Respondent's termination letter to
Miller had occurred many months prior to the date of his
termination. He had been on probation since Janaury 5,
1977, which was almost 6 months prior to his termination,
and the incident involving the damage to the tractor engine
had occurred in March 1977, which was about 3 months
prior to his termination by the Respondent.
With regard to Roger Grant, it is clear that he had not
listed his two speeding citations in 1976 on his application
for employment or on his motor vehicle driver's certifica-
tion. (See Jt. Exhs. 3 and 4.) However, as set forth more
fully in detail in section H herein, during the week of May
16, 1977, Grant advised Petersen that Grant was not cer-
tain of the number or dates of his traffic violations. At that
time, which was prior to union organizational activity
among Respondent's employees, Petersen's response was
that Grant should not worrry about it, that the matter was
not that important. Petersen's response at that time is in
sharp contrast with his later actions after union organiza-
tional activity had taken place.
Without reiterating here all of the facts, which are fully
described in section H herein, I conclude, based on the
tes:imony of Mary Bratt, who was an unbiased and impar-
tial witness, that the Respondent's request for the driving
records of certain of its drivers, including Roger Grant,
was not sent to the Department of Motor Vehicles until
after the Respondent had knowledge of the union organi-
zational campaign among its employees. As noted previ-
ously, the Union's telegram was telephoned to Petersen at
12:29 p.m. on Tuesday, June 28, 1977. The timing of the
processing of the request for the drivers record by the De-
partment of Motor Vehicles and the short distance of 15 to
20 miles between Bennet and Loncoln, Nebraska, suggest
that the request was not made until after telephonic receipt
of the Union's telegram. I do not find credible the testi-
mony that Petersen called from New Orleans, Louisiana, to
Lincoln, Nebraska, on June 24, 1977, while he was on duty
with the United States Navy to have such a request for
driver's records prepared.
Jensen's testimony with regard to the memos which he
wrote at Respondent's request, which were introduced as
Respondent's Exhibits 31 and 32, is revealing in that Jen-
sen testified that he had never been requested to confirm in
writing such matters by the Respondent before July 5,
1977.
As noted in section I herein, the legal opinion from At-
torney Quinn to the Respondent was not rendered until 2
days after the termination of Grant.
After considering all of the foregoing, and in particular
the 8(a)(l) violations by the Respondent as specified
herein, the timing of the terminations within a few days
after Respondent admittedly had knowledge that the
Union was seeking to organize Respondent's employees,
and especially in light of Petersen's statement to Troxel, "I
think I got rid of the ones that started it," I conclude that
a preponderance of the evidence does establish that the
Respondent was motivated, in part, by the union activities
of Miller and Grant in deciding to terminate them. There-
fore, I conclude that the Respondent violated Section
NEBRASKA BULK TRANSPORT 159
8(aXl) and (3) of the Act when it terminated Miller and
Grant on July 5, 1977.
4. The changes following the union representation
election on August 27, 1977
As noted above in section D herein, a majority of the
employees in the unit voted on August 27, 1977, to select
the Union as their collective-bargaining representative.
Thereafter, on September 6, 1977, the Union was certified
as the collective-bargaining representative of the employ-
ees in the unit.
Without repeating the facts which have been set forth in
detail in section O herein, it is apparent that Contreras,
Bolejack, and Ron Grant experienced changes in their
working conditions following the union representation
election. Herrington did not testify, but Bolejack described
Herrington as receiving shorter trips, rather than long ones
from Lincoln, Nebraska, to California or to New York, for
a short period of time after the union election.
Merely examining the earnings of the four employees for
the third and fourth quarters of 1977 would not, by itself,
disclose whether there had been changes i the job assign-
ments of these employees. For example, both Contreras
and Ron Grant pointed to the change in the nature and the
type of their assignments, as contrasted with the assign-
ments which they had been given in the past by the Re-
spondent. Bolejack, on the other hand, pointed to the
change in the method of compensation by the Respondent,
who had previously paid him on an hourly basis, and then
changed to paying him by the trip.
In addition, insofar as this record shows, there was a
substantial increase in the use by the Respondent of lease
operators following the union representation election. The
use of lease operators was not merely a continuation of a
past practice by the Respondent; instead, this increase was
a substantial change from the past practice.
The evidence is undisputed that the Respondent did not
give notice to or bargain with the Union with regard to any
of these changes following the union election victory. In
fact, the subject of the use of lease operators was consid-
ered by the Respondent to be a nonnegotiable item. In thse
circumstances, I conclude that the Respondent has taken
unilateral action without bargaining with the collective-
bargaining representative of its employees, that the Re-
spondent has continued to fail and refuse to bargain with
the Union with regard to the use of lease operators and the
subcontracting of unit work, and thereby, that the Respon-
dent has engaged in unfair labor practices within the mean-
ing of Section 8(a)(1) and (5) of the Act. Furthermore, con-
sidering the 8(a)(1) violations which have been described
herein, and the 8(a)(1) and (3) violations with regard to the
terminations of Miller and Roger Grant, and also consider-
ing the timing of the changes following the union represen-
tation election, I conclude that the changes also violated
Section 8(a)(l1) and (3) of the Act because they were taken
as a result of the employees' union activities.
Upon the basis of the foregoing findings of fact and
upon the entire record in this proceeding, I make the fol-
lowing:
CONCLUSIONS OF LAW
I. The Respondent is an employer 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. Since on or about August 27, 1977, and continuing
thereafter, the Union has represented a majority of the Re-
spondent's employees for the purposes of collective bar-
gaining in the appropriate bargaining unit described be-
low:
All full-time and regular part-time drivers, including
maintenance employees and the dispatcher employed
by the Respondent at its Bennet, Nebraska, facilities,
excluding office clerical employees, professional em-
ployees, guards, lease operators, and supervisors as de-
fined in the Act.
4. By interrogating the wife of an employee on or about
June 30, 1977, and by interrogating an employee on vari-
ous dates after July 5, 1977, regarding the union activities
of the employees of the Respondent; by engaging in sur-
vei.'ance of the union activities of its employees on various
da'es after July 5, 1977; by threatening its employees that
the Respondent would close its facility, sell its trucking
equipment, and lease its hauling operations to lease opera-
tors because of its employees' selection of the Union as
their collective-bargaining representative, during conversa-
tions occurring the week of July 11, 1977 and the week of
August 29, 1977; by threatening its employees that the
signing of a union contract could mean the closing of Re-
spondent's operation, in a letter to its employees I week or
10 days prior to August 27, 1977; and by threatening its
employees that it would refuse to bargain with the Union
selected by the employees as their collective-bargaining
representative, in a conversation on or about July 7, 1977,
the Respondent has engaged in unfair labor practices with-
in the meaning of Section 8 (aX 1) of the Act.
5. By terminating Dennis Miller and Roger Grant on or
about July 5, 1977, because of their union activities, the
R-spondent has engaged in unfair labor practices within
the meaning of Section 8(a)(l) and (3) of the Act.
6. By making changes in the work assignments of unit
employees and by subcontracting a portion of the unit
work, and thereby adversely affecting the conditions of
employment of Nick Bolejack, Sam Contreras, Ronald
Grant, and Robert Herrington since on or about Septem-
ber 1, 1977, because of its employees selecting the Union as
their collective-bargaining representative, and doing so
unilaterally without notice to and bargaining with the
Union, as the collective-bargaining representative of the
employees in the unit described above, and by continuing
to refuse to bargain collectively with the Union regarding
the use of lease operators and the subcontracting of unit
work, the Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)( ), (3), and (5) of
the Act.
7. The unfair labor practices set forth above affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
NEBRASKA BULK TRANSPORT 9
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Since I have found that the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1), (3), and (5) of the Act, I shall recommend to the
Board that the Respondent be ordered to cease and desist
from engaging in those unfair labor practices.
I shall also recommend to the Board that the Respon-
dent take certain affirmative action in order to effectuate
the policies of the Act.
Such affirmative action will include an offer of reinstate-
ment to Dennis Miller and Roger Grant and payment of
backpay to them for their loss of earnings which has result-
ed from the Respondent's termination of them. The back-
pay period will be from the date of their termination on
July 5, 1977, until the date on which the Respondent offers
each one, respectively, reinstatement. Net earnings by each
one during such period of time will be subtracted from the
amount of that person's gross backpay.
Backpay is to be computed on a quarterly basis in the
manner prescribed by the Board in F W. Woolworth Com-
pany, 90 NLRB 289 (1950). Intertest on such backpay is to
be computed in accordance with the Board's decisions in
Florida Steel Corporation, 231 NLRB 651 (1977), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
Furthermore, in view of the Respondent's violations of
Section 8(a)(1), (3), and (5) with regard to the changes in
the work assignments of certain unit employees and the
subcontracting of a portion of the work of unit employees,
I shall further recommend that Respondent reimburse
Nick Bolejack, Sam Contreras, Ronald Grant, and Robert
Herrington for any loss of earnings by them resulting from
Respondent's action.
Finally, in view of the nature of the unfair labor prac-
tices found herein, I shall also recommend to the Board
that the Respondent be required to cease and desist from
infringing in any other manner on the rights of employees
guaranteed by Section 7 of the Act. N.LR.B. v. Entwistle
Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941).
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding, and
pursuant to the provisions of Section 10(c) of the Act, I
hereby issue the recommended:
ORDER'
The Respondent, Nebraska Bulk Transport, Inc., Ben-
net, Nebraska, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Interrogating the wife of an employee and interro-
gating an employee concerning the union activities of Re-
spondent's employees.
IIn the event that no exceptions are filed as provided by Sec. 102.46 of
the Board's Rules and Regulations. the findings, conclusions, and recom-
mended Order herein shall, as provided in Sec. 102.48 of the Board's Rules
and Regulations, be adopted by the Board and shall become its findings,
conclusions. and Order, and all objections thereto shall be deemed waived
for all purposes.
(b) Engaging in surveillance of the union activities of its
employees.
(c) Threatening its employees that Respondent would
close its facility, sell its trucking equipment, and lease its
hauling operations to lease operators because of its
employee's selection of the Union as their collective-bar-
gaining representative.
(d) Threatening its employees that the signing of a
union contract by the Respondent could mean the closing
of the Respondent's operations.
(e) Threatening its employees that the Respondent
would refuse to bargain with the Union selected by its em-
ployees as their collective-bargaining representative.
(f) Discharging employees because of their union activi-
ties.
(g) Making changes in the work assignments of employ-
ees in the unit represented by the Union and subcontract-
ing a portion of the unit work and thereby adversely affect-
ing the conditions of employment of its employees, because
its employees select a union as their collective-bargaining
representative, and taking such actions unilaterally without
notice to and bargaining with the Union, as the collective-
bargaining representative of its employees, and continuing
to efuse to bargain collectively with the Union regarding
the use of lease operators and the subcontracting of unit
work.
.h) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary in order to effectuate the policies of the
Act:
(a) Offer Dennis Miller and Roger Grant immediate
and full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions of em-
ployment, without loss of their seniority or other rights and
privileges.
(b) Make whole Dennis Miller and Roger Grant for any
loss of earnings which has resulted from their termination
by the Respondent in the manner as more fully described
in the remedy section of this Decision.
(c) Make whole Nick Bolejack, Sam Contreras, Ronald
Grant, and Robert Herrington for any loss of earnings
which has resulted from the Respondent's action against
them in the manner as more fully described in the remedy
section of this Decision.
(d) Preserve and, upon request, make available to agents
of the Board, for examination and copying, the payroll rec-
ords, social security records, timecards, personnel records,
and all of the other records necessary to analyze the
amount of money due under the terms of this Order.
(e) Bargain collectively, upon request, with General
Drivers and Helpers Union, Local No. 554, affiliated with
the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, with regard to the
wages, hours, and other terms and conditions of employ-
ment of the employees of the Respondent in the appropri-
ate unit described below, and in particular bargain collec-
tively with the Union as the collective-bargaining
representative of the employees in the unit with regard to
Respondent's use of lease operators and the subcontracting
---
NEBRASKA BULK TRANSPORT 161
of unit work. The appropriate coliective-bargaining unit is:
All full-time and regular part-time drivers, including
maintenance employees and the dispatcher employed
by the Respondent at its Bennet, Nebraska, facilities,
excluding office clerical employees, professional em-
ployees, guards, lease operators, and supervisors as de-
fined in the Act.
(f) Post at its Benent, Nebraska, facility copies of the
attached notice marked "Appendix." 2 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 17, after being duly signed by Respondent's represen-
tative, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, including all places where notices to em-
ployees 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.
(g) Notify the Regional Director for Region 17, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
Consistent with the findings of fact and conclusions of
law reached in this Decision, the Respondent's motion to
dismiss the allegations of the complaints is hereby denied.
2 In the event that this Order is enforced by a judgment of a United Siates
Court of Appeals. the words in the notice reading "Posted bh Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."