O. R. Cooper and Son

National Labor Relations Board - Board Decisions

Sep 15, 1975

220 N.L.R.B. 287 (N.L.R.B. 1975)

O. R. COOPER AND SON 287
O. R. Cooper and Son and Chauffeurs , Teamsters
and Helpers Local 26, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America . Case 38-CA-2098
September 15, 1975
DECISION AND ORDER
CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
On March 14, 1975, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions 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 of the Administrative Law Judge and to
adopt his recommended Order as modified herein.'
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 as modified
and hereby orders that Respondent O. R. Cooper &
Son, Urbana, Illinois, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order as so modified:
1. Insert the following as paragraph 2(c) and relet-
ter the subsequent paragraphs, accordingly:
"(c) Make J. D. Haynes and Steven Clem whole
for any loss of pay or any benefit they may have
suffered by reason of the Respondent's discrimina-
tion against them from the date of their discharge
until July 30, 1974."
1 While we agree with the Administrative Law Judge that employees Ste-
ven Clem and J. D. Haynes have forfeited any rights to reinstatement, we
disagree with his further recommendation that they should not receive any
backpay. Where both the Employer and employees have engaged in miscon-
duct, the Board will "balance the severity of the employer 's unfair labor
practice[s] ... against whatever employee misconduct may have occurred
. "Fairview Nursing Home, 202 NLRB 318 , 325 (1973); N L R B v. Thay-
er Company, 213 F.2d 748, 755 (C.A. 1, 1954). The misdeeds of the employ-
ees cannot be ignored , but the Respondent should not be allowed to violate
the law with impunity . After careful consideration of the conflicting inter-
ests in this case , we will not order the Respondent to reinstate Clem and
Haynes since they have intentionally destroyed Respondent 's property, but
we will order Respondent to pay Clem and Haynes backpay from the time
Respondent unlawfully discharged them to the time of their own unlawful
conduct. Fairview Nursing Home, supra.
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a trial that we violated the Federal law by dis-
charging employees because they engaged in union
activity and by commiting other acts of illegal coer-
cion:
WE WILL NOT coercively question our employ-
ees concerning their union activities.
WE WILL NOT threaten to discharge employees
because of their union activities.
WE WILL NOT threaten to close down our busi-
ness in order to prevent union activities among
our employees.
WE WILL NOT tell our employees that we will
survey their union activities to ascertain the
identity of prounion employees.
WE WILL NOT discharge or discriminate against
any employee for engaging in concerted or
union activities.
WE WILL offer Tommy Hall, Daniel Berry,
and Donald Schaffer, immediate and full rein-
statement to their former positions or, if such
positions no longer exist, to substantially equiva-
lent positions.
WE WILL pay each of these three employees,
plus Hugh Walker, for any earnings they lost as
a result of our discrimination against them, plus
6-percent interest.
WE WILL pay J. D. Haynes and Steven Clem
for any earnings they lost as a result of our dis-
crimination against them, plus 6-percent interest
from the date of their discharge until July 30,
1974.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights to self-organization to
join or assist Chauffeurs, Teamsters and Helpers
Local 26, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America, or any other labor organization, and
to engage in other concerted activities for the
purpose of collective bargaining or other mutual
aid or protection, or to refrain from any and all
such activity.
O. R. COOPER AND SON
220 NLRB No. 43
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Administrative Law Judge: A hearing
in this proceeding was held on January 13, 14, and 15,
1975, at Champaign, Illinois, on complaint of the General
Counsel against O. R. Cooper & Son, herein called the
Respondent or the Company. The charge was filed by
Chauffeurs, Teamsters and Helpers Local 26, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Union, on Au-
gust 30, 1974, and the complaint issued on October 9, 1974.
The primary issues of the case are whether the Respondent
discharged six employees in July of 1974 because of their
union activities and thereby violated Section 8(a)(3) of the
Act. Briefs were filed by the General Counsel and the Re-
spondent.
Upon the entire record and from my observation of the
witnesses I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is an individual proprietorship engaged
in the business of interstate and intrastate hauling of
freight by truck, with its principal office and place of busi-
ness in Urbana , Illinois . During the past 12 months, a rep-
resentative period , its gross volume of business was in ex-
cess of $500,000, of which more than $50,000 was received
from furnishing interstate transportation services. I find
that the Respondent is engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that Chauffeurs, Teamsters and Helpers Local 26,
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , is a labor organi-
zation within the meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. A Picture of the Case
In its trucking operations the Respondent uses between
20 and 25 drivers and helpers. There was a move among
these employees towards joining Teamster Local 26 during
the week immediately preceding July 20, 1974, and in the
following week . Two union meetings were held, one on
July 20, attended by five employees, and the other on July
27, attended by the same five plus a sixth employee. On the
very day of the second meeting , or very quickly thereafter,
the Respondent discharged all six of the employees who
had been at the union meetings. At least as far back as
January 1, 1974, the Company had discharged no one and
it still had not dismissed anyone else up to the time of the
hearing in January 1975. The complaint alleges that all six
of these employees were discharged in retaliation for their
union activities. According to the complaint, the conclu-
sionary inference of illegal motivation rests not only upon
the very suggestive timing of the discharges, but also upon
direct, explicit, and consistent testimony of several employ-
ees, all uncontradicted on this record, that Perry Hatter,
the Company's terminal manager and second in command
of the business, made it clear to all that the Respondent
was going to find out who the union protagonists were and
get rid of them.
The Respondent denies any unlawful intent and, in affir-
mative defense, asserts that each of the six men was re-
leased at that particular time for just cause.
B. Violations of Section 8(a)(1)
Both union meetings were held at a public park called
the Lake in the Woods, 10 miles away from the company
terminal ; five employees present at the first meeting signed
union cards there and took some blank cards to solicit
other signatures. Starting that very day they did talk to
other employees about the Union, obtaining some further
signatures and failing to get others. With all the talk, both
Hatter and Rodger Cooper, the owner of the business,
learned about the union movement. There may be a little
ambiguity as to exactly how the precise information
reached them, who brought it, or just how many individual
participants were identified in the mind of management,
but there is no doubt either that the company officers were
searching for information or that they did obtain it.
Donald Schaffer, Steven Clem, Tommy Hall, J. D.
Haynes, and Hugh Walker were at the July 20 meeting;
Daniel Berry was the only other man who accompanied
these same five to the July 27 meeting . Schaffer testified
that on the 25th or 26th, in the terminal drivers' room,
Manager Hatter asked him what did he know about the
Union, and that "there was going to be a lot of asses fired
if the Union got in," that the Company would "get smaller
trucks with . . . no power steering , no air conditioning, no
radios, no sleepers." Hatter then asked Schaffer did he
have "one of those pieces of paper I'd been handing out
.... A piece of paper I'd been handing out the Union
gave me," and the employee said he did not. Schaffer and
other employees had, after the first meeting with the Team-
ster business representative, been distributing a "do and
don't" statement prepared by the Union for employee use
and distribution.
Walker testified that several days after the first meeting,
when employees Blue and Raymond Haynes were sitting in
a restaurant with him, Hatter happened to enter and asked
what they were talking about. They said "about the
Union," and Hatter then stated "that him and Rodger
would fire everybody connected with the Union, and that
they would hire brokers instead." (The word broker in this
business means independent contractors , or independent
owner-operators, as distinguished from employees.)
Walker also testified that on Tuesday after the first
meeting, he was at Hatter's home and the manager started
talking against the Union, "adding that Rodger and them
would fire the whole kit and caboodle and what have you."
Walker responded "The Union is not really that bad," and
Hatter continued, still according to Walker, "that if the
O. R. COOPER AND SON 289
Union was brought in they'd shut the whole place down,
because Rodger couldn 't afford it, they would shut it
down ." Later that same week Walker had occasion to tele-
phone Hatter to inquire about the next day's work, and in
the course of the conversation the manager said: "'Don't
lie to me. . . . Did anybody approach you about the
Union,' I said, 'No,' he said, `Well, is Steve Clem and J. D.
Haynes the head of it,' and I said I didn 't know."
Clem's testimony is that on July 21 , the day after the first
meeting , Hatter approached him: "He asked me what this
was-he was hearing about me organizing the Union in
Cooper , and I told him I didn't know anything about the
Union and I didn 't wish to discuss it with him, and he
proceeded to tell me that if the Union got in it would cause
Cooper to go broke, and I repeated that I didn't know
anything about it and I didn't want to talk about it, and he
told me then that they were going to find out who was
instigating the Union and they would be fired and gotten
rid of." Later in the week Clem found someone else doing
his already assigned work and asked Hatter why his load
had been given to another employee . Hatter answered:
,.with me instigating the Union he didn't think I'd show up
to make the run. . . ." On Friday , still the same week,
Hatter again talked to Clem about the Union. "Perry told
me that he'd heard that everybody was getting the Union
in because of him , the things he'd done , and I told him that
it wasn't all his doing , it was a combination of several dif-
ferent things , and he told me that if we got the Union in
that Mr. Cooper had made arrangements to sell all his
equipment , and said there 'd be a whole bunch of us look-
ing for jobs if we continued to try to get the Union in, and
where would myself and J. D. Haynes obtain jobs being's
J. D. had had so many wrecks."
On the afternoon of Sunday, July 21, both Hatter and
Cooper talked to Haynes about the Union. As he testified:
"They asked me about the Union. I told them I didn't .. .
I told them they knew about it as much as I did, and there-
after I didn't care to discuss it . . . as I was going out of the
door, Rodger Cooper said when he found out who the in-
stigators was he was going to replace them."
And finally , Hall telephoned Cooper at home on Friday
evening, July 26 , to inquire would he be working on Satur-
day or Monday. Hall's testimony is that the owner an-
swered : "'This all depends on how the meeting comes out
tomorrow,' and I asked him what meeting he was talking
about, and he told me the meeting concerning-at the
Lake of the Woods concerning the Union. . . . He said,
`You guys are out to hurt me , I'm going to hurt you."'
As stated above, Hatter did not appear at the hearing.
Cooper, in defense , denied having made any threatening
statements to any employee or having illegally interrogated
anyone. I credit these employees quoted above, both with
respect to what they recalled of Hatter's statements and
what they attributed to Cooper. The reasons for not cred-
iting the owner's several denials will appear more clearly
below. Accordingly, I find that by the following acts of
Terminal Manager Hatter the Respondent violated Section
8(a)(1) of the Act: (1) interrogation of Schaffer , Walker,
and Clem concerning union activity ; (2) statement to
Schaffer , Blue, Raymond Haynes , Walker , and Clem that
the Respondent would discharge employees in retaliation
for union -activities; (3) statement to Walker that the Re-
spondent would close down the entire business to avoid
bargaining with a union ; and (4) statement to Clem that
the Respondent would take steps to learn the identity of
prounion employees. I also find that by the following state-
ments of owner Cooper the Respondent violated Section
8(a)(1): (1) statement to Haynes that upon learning who
the unioneers were the Company would replace them; and
(2) statement to Hall that the employee's job depended
upon the activities of employees at a union meeting and
that Cooper would hurt the employees if they persisted in
their union activities.
C. The Discharges
As to the asserted reasons for discharging all six of these
men, the oral testimony-credible or not-is limited to
what was offered by Rodger Cooper, the owner; only he
testified on this critical part of the defense on behalf of the
Respondent. Considering his total story-or stories-he
was not convincing . On their very face , some of the indi-
vidual explanations are incredible.
1. Steven Clem
Cooper said he decided to discharge Clem because of
repeated traffic violations and because his driver's license
was suspended; as objective evidence to prove the conten-
tion, he offered a report from the State Motor Vehicle Bu-
reau issued after August 23, 1974, and a letter dated Sep-
tember 25 from the Respondent's insurance agent advising
against rehiring Clem because of his poor driving record.
The traffic record shows Clem's last violation was a speed-
ing ticket on April 27, 1974. Because he had received three
tickets during a certain period, the department took action
on August 23 by restricting his driving permit as of that
day. Under the restricted license the driver, for a certain
period, may use his personal vehicle only to and from
work, and may otherwise without limitation drive a truck
on the highways while working.
There are other facts of record showing clearly the as-
serted defense as to Clem is an afterthought. No traffic
violations appear on his record from 1970 to 1974; he had
speeding tickets in January, March, and April. No one ever
said a word about this to him; indeed, when Hatter gave
him the first hint of discharge, the day after the second
union meeting which Clem had attended, even then, when
asked why the discharge by the driver, the manager said he
did not know. And, of course, there was no suspension
action by the State, partial or otherwise, until a month after
the discharge. The Motor Vehicle Department's report was
issued only because there was a request made for it, and it
shows the request was not made until August 12. It would
belabor this Decision unduly to add: (1) Cooper's admis-
sion that traffic reports of this kind do not come automati-
cally from the Motor Vehicle Bureau, but only when re-
quested; (2) another employee, Martin, 5 years a driver for
the Respondent, had his driver' s license similarly suspend-
ed in 1972, Cooper knew about the suspension then, and
Martin never did stop driving a company truck; (3) two
more drivers-Ray Haynes and Dean Tomson-drove
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with suspended licenses; and (4) Manager Hatter's license
was suspended in 1970 , and owner Cooper's as well, also in
1970, but both continued to drive pay loads on the high-
way exactly like the regular employees.
2. Tommy Hall and Daniel Berry
Another example of Cooper's poor credibility at this
hearing is his explanation of the release of Berry and Hall.
For some months these two worked at general mainte-
nance and all-around utility, and also at loading certain
cheese barrels each morning and taking them to a railroad
depot for the Kraft Company. They used to spend as
much, if not more, of their time doing general work as at
this barrel trucking. In May, 2 months before their dis-
charges, the Kraft Company changed its system and start-
ed moving the barrels with its own employees. Berry and
Hall were simply given more of their other kind of work to
do-such as repairing tires, unloading and cleaning trucks,
building pallets, general warehouse work, etc. They earned
no less after May than before, and Berry even said, without
any contradiction by company witnesses , that he did over-
time work after the barrel runs were discontinued. Nor did
anyone contradict the testimony of both men that they
were told after May there was plenty of work for them to
do. No mention of the discontinuance of the barrel work as
a source of concern to them was ever made before Hatter's
statement , on the Sunday after the second union meeting,
when he told the men they were fired.
At the hearing Cooper said the only reason he kept these
two men on in May was because he thought Kraft might
revert to the old system again and use his men to move
barrels, that the Kraft people had told him there was a
possibility they might do that, and that he therefore
strained to find something for Berry and Hall to do, giving
them "odd jobs," although he really did not need them. He
continued that on July 24, Wednesday, Kraft advised him
with finality it would not change back to the former sys-
tem, and that he told the men he would not need their
services any longer "the following morning." "Q. [By com-
pany counsel] ... So you did let them go at that time? A.
Yes, I did."
The truth of the matter is Cooper did not tell either Ber-
ry or Hall anything about the discharge until after both
had attended the second union meeting on the 27th. Hall
testified he telphoned Hatter on the 24th to ask what work
there was for the next day, Thursday; Hatter answered
there was no work for the 25th but that Hall should call
again Friday. During Friday Hall did call him again, and
again Hatter said there was no work but gave no explana-
tion. After 7 p.m. that evening, still Friday, Hall called
Cooper at home-would there be work on Saturday? Hall's
version is that the owner told him it all depended upon
what happened at the next union meeting, and if the Union
should hurt Cooper he would hurt the employees. Cooper's
story is that Hall called him "on a Friday evening or a
Saturday morning, Saturday evening, I don't know which
one . . . and wanted to know if he should come back to
work." Cooper then added his answer to the man was "To
call Perry [Hatter] and ask if there would be work." If
Cooper had really kept both these men on the payroll for 2
months although he did not need them-having them paint
his mother's bathroom as a stopgap, he said-he would
certainly have told them they were through as soon as he
heard the barrel work was really finished. He did not; why
not? Cooper had no answer to this incriminating question.
By this time, earlier in the week but still before the second
union meeting , Hatter had already told the men there
would be serious retaliation if the union movement did not
stop. I credit Berry's testimony that Cooper told him that
Friday, or Saturday, it all depended upon what happened
at the next union meeting . There is no corroborative evi-
dence to support Cooper's story of final contract cancella-
tion by Kraft; he said all arrangements were oral with that
company, but no neutral witness was produced to testify
about it. The conclusion from all this must be that Berry
and Hall were not "temporary" employees after May, and
that the real reason for their summary and surprise dis-
missal following so immediately upon their attendance at
the union meeting was pure implementation of Hatter's
advance statement that people would be fired unless union
activities ceased.
3. Donald Schaffer
The discharge of this man fits the uniform pattern of the
Respondent's treatment of all six employees named in the
complaint. He was a "spotter," as distinguished from a reg-
ular truckdriver. He worked the night shift at the Kraft
Company plant, moving trailers to and from the limited
loading dock locations, and placing (spotting) them about
on Kraft property in readiness for the drivers who then
took them away; he worked on about 15 or 16 such trailers
each shift. Every once in a while he had some beer with his
mid-shift meal in a nearby restaurant; he always did this
during the 4 months he worked on this job. Owner Cooper
testified he discharged Schaffer "for drinking on the job"
and that he made the decision on "Friday morning," July
26. And once again the employee was told nothing about
discharge until after he had attended the second union
meeting.
On Sunday night, July 28, Schaffer reported to the Kraft
plant for his scheduled night shift and found Kirk, the day
shift man, already there doing his work. Other than saying
he had been ordered to be there, Kirk could offer no expla-
nation of what had happened. Unable to reach Cooper or
Hatter on the phone, Schaffer called his friend Clem and
the two went to a restaurant. It was now about 11 p.m.,
1-1/2 mile distant from the Kraft plant, and Manager Hat-
ter just happened to be in the same restaurant. Schaffer
asked Hatter was he fired, and the manager said yes. Clem
asked the same question, and he was told yes. This is also
the very moment Clem first learned of his own discharge.
Both men asked why were they being dismissed, and the
only answer they drew from Hatter was "that Rodger said
we were fired." Hatter even had a $40 check in his billfold
made out to Schaffer and gave it to the driver then and
there.
If Cooper had really decided to dismiss Schaffer on Fri-
day morning, regardless of his reason, why did he not so
advise the man? It is hardly a rational way to have an
employee report for duty on a Sunday night without reason
O. R. COOPER AND SON
after such a decision . Cooper said he told Hatter of his
decision , but I do not believe him. An explanation there
must be, both for the failure to advise Schaffer before Sun-
day and for Hatter saying, contrary to Cooper 's testimony,
that he did not know why the people were dismissed.
This is a good place in this Decision to comment on the
activities and the testimony of James Norman, an employ-
ee witness called by the Respondent . When the employees
returned from the first union meeting with a supply of au-
thorization cards , they successfully solicited a number of
other signatures ; Norman is the only employee identified
on the record as one who also was asked to sign but did not
do so . He testified that on July 25, Thursday, he saw a
half-filled glass of beer on the restaurant table where
Schaffer was having lunch ; he said the restaurant is 8 miles
from his home . Asked how did he happen to be there: "I
don't know, I just happened there to get a sandwich, I
think." Asked had he reported what he had seen to anyone,
the witness sat mute for a long period of time . Finally, he
said : "I think I did. I ain't sure . . . ." With neither Cooper
nor Hatter mentioning this business about drinking beer to
Schaffer at all-not even at the moment of discharge-I
can place little credence in Norman 's testimony . First men-
tion of this matter appears in the Respondent 's answer to
the complaint.
There was another significant incident . During the work-
day on Wednesday the 24th, Berry and Hall were unload-
ing a truck at the premises of a customer named J. M.
Jones ; Norman was also working there on an assignment
of his own . Berry and Hall started telling him about the
Union, saying how they had both signed union cards. Nor-
man then said he had to leave for another load. When he
returned to the location where Berry and Hall were still
working, he told them that as soon as they were finished
with that load they were to telephone Hatter. Berry did
that and Hatter told him the two men were to "knock off"
and that there was no work for them the next day. This is
the sudden discontinuance of work for these two men
which led to the several later conversations between them
and Hatter and Cooper when both managers kept stalling
them until after the second union meeting . The General
Counsel urges an inference that Norman that day reported
Berry's and Hall's union activities to Hatter, and that this
was the reason why they were suspended in mid-shift. They
both testified that nothing like this had ever happened to
them on the job.
The conclusion that Norman, himself opposed to the
Union, served as the reporting source of information to the
Company , is greatly strengthened by admissions drawn
from him on cross-examination:
Q. Did you ever tell management anything about the
fact that people were asking about union authoriza-
tion cards?
A. I don't recall.
Q. (By Mr . Shostrom) You don't recall?
A. No.
Q. You didn't report that?
A. I could have . I don't remember for sure.
291
JUDGE Ricci: Did you report to the Company any-
thing about the Union asking you to sign a card?
THE WITNESS: I think I did, I ain 't sure . Pretty sure.
JUDGE Ricci: Who's name did you-did you give
anybody's name to the Company as someone who
asked you to sign a card?
THE WITNESS: I don't remember-J. D. Haynes is one
of them.
MR. SHOSTROM : All right.
Q. (By Mr. Shostrom) Do you remember reporting
that-
A. I think I did mention-Perry approached me
about signing a card.
Q. Perry asked you whether you'd signed a card?
A. I don't remember if he did or not.
Q. But you remember reporting that fact to Perry
Hatter that J. D. Haynes had approached you
about signing a card?
A. Yeah. I mentioned it to him.
Q.
A.
A .
Q.
A.
Q.
A.
* *
Do you know Mr. Berry?
Yes sir.
Did he ever approach you to sign a card?
Seems like he did out at Jones-J. M. Jones.
Did you report that to Mr. Hatter?
I don't remember for sure.
You may have?
I may have. I ain't sure.
Returning to the discharge of Schaffer, Cooper said at
the hearing it was a regular part of the spotter's duty to
drive trucks a considerable distance about the town-this
to support the assertion of discharge for drinking on the
job. Schaffer said that he had occasion to drive a truck any
distance from the spotting place only twice during his en-
tire 4-month stay with the Respondent. Employee Kirk,
called by the Company, testified: "his [Schaffer's] is mostly
straight spotting . . . . Just straight spotting. He does not
have to run over the road." An employer may discharge an
employee for drinking during working hours no matter
what kind of work he does, and he does not need a regula-
tory statute to justify the dismissal. But regardless of colla-
teral rules, if in fact he does not discharge an employee for
rule violation, later assertion to that effect in the defense of
a Labor Board charge will not avail. On this total record I
find the Respondent did not dismiss Schaffer because he
drank beer, but rather because he favored the Union.
4. J. D. Haynes
Like the rest of the Respondent's long-haul drivers,
Haynes was a "percentage hauler"; this means he was paid
a fraction-25 percent to 27 percent-of the amount re-
ceived by the Company from the shipper. How many hours
Haynes worked, or how many miles he drove, had nothing
to do with his earnings. Returning from a long trip on
Tuesday, July 23, he fell asleep at the wheel, drove off the
road, and caused considerable damage to the vehicle. The
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
defense here is Haynes was discharged because of the acci-
dent, so costly to the employer. He never heard of the deci-
sion to release him until the following Monday, July 29,
after he too had attended both union meetings. In the light
of all the facts of record pertinent to this man's dismissal, I
find that he was discharged because of his prounion senti-
ment, and not because of the damage he did to the truck.
As set out above, on Sunday, the day after the first union
meeting, Cooper and Hatter asked him what he knew
about the Union, and when he evaded and refused to talk
about it, Cooper told him that when he heard who the
instigators were he would replace them. Cooper did learn
who the instigators were for Norman , Respondent's own
witness , admits that Haynes was one of the instigators
whom he reported to management . The road accident was
on Tuesday; Cooper himself drove Haynes back to town
and looked after his physical condition. That very day
Haynes asked would this cost him his job, but Cooper an-
swered "it would be an excuse to get rid of me with this
union thing coming up, but no, they were not going to fire
me." With the doctor finding Haynes perfectly well, the
driver came to the terminal Wednesday to tell Hatter he
was ready to work. Hatter said only that the trailer was not
yet ready and it might be Sunday before Haynes could go
out on the road again. Friday Haynes was back again to
inquire, and now Hatter told him "be ready to go Sunday
... to Bellafontaine Sunday night or to Konva, West Vir-
ginia, Monday morning. . . ." After all of this Hatter told
Haynes on Monday "I didn't work there no longer." More
than once Haynes asked why the dismissal, and all he got
from the manager was that "due to my activities the boss
said I didn't work there no more."
There is no coherent explanation of why the man was
not told the accident had cost him his job, if in fact that
had been the reason for his release , until after he had at-
tended the second union meeting . I do not believe Haynes
was fired because of that accident.
This conclusion from the entire record is not to be taken
as a finding that his falling asleep on the job was the
Respondent's, or Cooper's, fault . Haynes told a story of
riding the highways for over 35 continuous hours with no
sleep, and in violation of Transportation Department rules,
he insisted that Cooper demanded such performance from
his drivers. I do not believe his story. Upon his return from
that trip he produced, as required by applicable regula-
tions , his trip record for the entire period, and it shows
entries, in his own handwriting, indicating proper rest dur-
ing all pertinent periods . Haynes said this was a false rec-
ord, and that the real one, which he also kept simulta-
neously, proves otherwise. He did not produce it.
Moreover, Cooper had no substantial interest in rushing
Haynes home, for however long it took the driver to get
back, his pay was the same.
5. Hugh Walker
The discharge of this man somewhat parallels that of
Haynes. On Monday, July 22, his truck broke down while
he was driving-something about the rear end transmission
failing. He was not told anything about the discharge until
Monday, July 29, when, among other things, Hatter said it
was because "I tore up an engine, tore a rear end out of a
truck." Hatter did not testify. Cooper's explanation at the
hearing (he did not claim to have spoken to Walker at all at
the time of the events), apparently intended to set forth at
least the asserted ground for dismissal, is so vague it says
nothing tangible. "We'd had a meeting Friday morning
and they came in and laid all this stuff down on my desk,
and it's very irritating when you find out you're not getting
done what you're supposed to be getting done. . . . There
is several things happen when a man comes in and lays all
this stuff down on your desk and says, `look here, this man
had so many violations in this length of time. What are you
going to do about it?' "
Apart from these words by Cooper, there is nothing in
this entire record, either by way of contention or evidence,
relating to any affirmative defense as to Walker. An ex-
tended statement set out in the Respondent's answer,
signed by its lawyer, is no more than an argument and has
no support at all in the record in the form of evidence or
proof. The best possible view of the record on behalf of the
Respondent would be that its position now is Walker was
fired because of the Monday breakdown of his truck. If
this be the affirmative defense, I find it unsupported by
adequate proof. Considering all the relevant facts, I find
Walker, like the other five union-meeting-going employees,
was discharged because of his prounion sentiments.
Fearful that he might be prejudiced because of the truck
breakdown, Walker went to Hatter's house on Tuesday
evening to ask was his job in jeopardy. Hatter said no,
" `that wasn't your fault,' that there was no oil in-or in the
rear end, that they had found out, so he told me not to
worry about it." And before Walker left that night Hatter
found occasion to talk about the Union, and said the Com-
pany would fire "the whole kit and caboodle." Walker
spoke to the manager later in the week, again to inquire
about work, and again Hatter said nothing about the acci-
dent, or any doubt about Walker's continued employment.
But he did keep pressing his concern over the union busi-
ness : ". . . Don't lie to me. . . did anybody approach you
about the Union." Of greatest significance is Hatter's inter-
rogation that night about whether J. D. Haynes was "the
head of it." Finally, on Monday, having learned lefthand-
edly from other rank-and-file employees that he was
through, Walker again went to Hatter's to ask was it true.
Now Hatter did speak of the truck breakdown. Incredu-
lous, Walker wanted to know, if this were so, why had he
not been told earlier, but Hatter said he did not know the
answer to that one. With this Walker said he knew why he
was fired, and that it was because of his "union activities."
To this Hatter's rejoinder was: "Well, you live with J. D."
J. D. is J. D. Haynes, the man of whom Hatter had earlier
inquired and one of the men whom Norman had reported
to management to be a unioneer.
I conclude that all six of the employees named in the
complaint were discharged in July of 1974 in violation of
Section 8(a)(1) and (3) of the Act.
IV. THE REMEDY
The Respondent must be ordered to cease and desist
from repeating the unfair labor practices here found to
O. R. COOPER AND SON
have been committed or any others, and to take affirmative
action necessary to restore the status quo. This means rein-
statement and backpay to illegally discharged employees
where appropriate and posting of usual notices.
Late on the evening of July 29, two of the illegally dis-
charged employees-Haynes and Clem-drove to the town
of Bement, Illinois, where one of the Respondent's trailers
was parked near the home of one of the drivers. Their
admitted purpose was so that Clem could slash the tires on
the Company vehicle. Clem did that, at about I a.m., while
Haynes sat in the car a short distance away in the dark.
Clem was arrested and indicted for the crime; he pleaded
guilty to cutting about 18 tires and was sentenced to 18
months probation. By this gross misconduct both Clem
and Haynes disqualified themselves from any right to rein-
state or reimbursement of back wages, and their miscon-
duct was such that no case precedent is required.
Walker was reinstated to his old position before the start
of the hearing and therefore there is no occasion to order
his reinstatement now.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III
above, occurring in connection with the operations of the
Respondent described in section I above, have a close, inti-
mate , and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
CONCLUSIONS OF LAW
1. By discharging Steven Clem, Tommy Hall, Daniel
Berry, Donald Schaffer, J. D. Haynes, and Hugh Walker
in July 1974 the Respondent has engaged in and is engag-
ing in unfair labor practices in violation of Section 8(a)(3)
of the Act.
2. By the foregoing conduct, by interrogating its em-
ployees concerning their union activities and sentiments,
by threatening to discharge its employees in retaliation for
their union activites, by threatening to discontinue the en-
tire business because of the employee's union activities, by
threatening to inquire and ascertain the identity of pro-
union employees, and by threatening to hurt the employees
in order to curtail their union activities, the Respondent
has engaged in violations of Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER1
293
The Respondent, O. R. Cooper and Son, Urbana, Illi-
nois, its officers agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Laying off or in any other manner discriminating
against its employees because of their union activities.
(b) Interrogating its employees concerning their union
activities, threatening to discharge employees in retaliation
for union activities, threatening to discontinue the business
in order to curtail union activities, threatening to inquire
into and to ascertain the indentity of prounion employees,
and threatening to hurt the employees in punishment for
the union activities.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights to self-
organization, to form, join or assist Chauffeurs, Teamsters
and Helpers Local 26, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
or any other labor organization, to bargain collectively
through representatives of their own choosing, and to en-
gage in other concerted activities for the purposes of collec-
tive bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer Tommy Hall, Daniel Berry, and Donald
Schaffer immediate and full reinstatement to their former
positions or, if such positions no longer exist, to substan-
tially equivalent positions, without prejudice to their se-
niority or other rights and privileges.
(b) Make all of the foregoing employees, plus Hugh
Walker, whole for any loss of pay or any benefit they may
have suffered by reason of the Respondent's discrimina-
tion against all of them.
(c) Preserve, and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(d) Post at its terminal plant in Urbana, Illinois, copies
of the notice attached hereto and marked "Appendix." 2
Copies of said notice on forms provided by the Regional
Director for Region 38, after being duly signed by its repre-
1 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes
2 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentatives , shall be posted by the Respondent immediately notices are not altered, defaced, or covered by any other
upon receipt thereof , and be maintained by it for 60 con- material.
secutive days thereafter , in conspicuous places , including (e) Notify the Regional Director for Region 38, in writ-
all places where notices to employees are customarily post- ing, within 20 days from the date of this Order, what steps
ed. Reasonable steps shall be taken by it to insure that said the Respondent has taken to comply herewith.