Pius Halter Truck Lines

National Labor Relations Board - Board Decisions

Oct 18, 1967

167 N.L.R.B. 857 (N.L.R.B. 1967)

PIUS HALTER TRUCK
Pius Halter , d/b/a Pius Halter Truck Lines' and
General Drivers Local 123 , affiliated with Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America. Case
18-CA-2342
October 18, 1967
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On August 22, 1967, Trial Examiner Ivar H.
Peterson issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed limited ex-
ceptions to the Trial Examiner's Decision.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, except as modified below to cor-
rect an apparent inadvertent error in the drafting of
the Trial Examiner's Recommended Order and
Notice.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, as modified
below, and hereby orders that the Respondent, Pius
Halter, d/b/a Pius Halter Truck Lines, Bismarck,
North Dakota, his agents, successors, and assigns,
shall take the action set forth in the Trial Ex-
aminer's Recommended Order, as herein modified:
1. Amend paragraph 2(b) by substituting the fol-
lowing therefor;
"(b) Make whole the aforesaid employees, and
Donald Elmer, Lenny Langei, Ben Sauter, Kenny
Schumacher, and Bernard Meyer, in the manner set
forth above in the section entitled `The Remedy,'
for any loss of earnings suffered by reason of the
discrimination against them."
2. Amend the fourth paragraph of the notice at-
tached as an Appendix to the Trial Examiner's
857
Decision by adding to the double column list of
names the name of employee Bernard Meyer.
' The case caption originally read "Pius Halter Truck Lines " It is
hereby amended to reflect the Trial Examiner's finding, which is sup-
ported by the record, that the Respondent is an individual proprietorship
owned by Pius Halter
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
IVAR H. PETERSON, Trial Examiner: On March 30,
1967, the General Counsel of the National Labor Rela-
tions Board, by the Regional Director for Region 18, is-
sued an amended complaint against the Respondent, Pius
Halter, an individual proprietor doing business under the
trade name Pius Halter Truck Lines, based upon charges
filed on January 6, 1967, by the Union, General Drivers
Local 123, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America. The complaint alleged, in substance, that the
Respondent violated Section 8(a)(3) and (1) of the Na-
tional Labor Relations Act, as amended, by discharging,
on January 5,1 12 or 14 employees who on January 3 had
concertedly ceased work and gone out on strike and who
had unconditionally offered to return to work on January
5, and refusing to reinstate certain of them for some days
following their offer to return to work; subsequently
discharging 2 reinstated employees because of their ac-
tivities on behalf of the Union; failing and refusing to rein-
state 6 employees because of their participation in union
activities; and warning employees that if the Union came
in the Respondent's shop would be closed. The Respond-
ent's answer denied the commission of any unfair labor
practices. Pursuant to notice, I heard the case on April 25
and 26 in Bismarck, North Dakota. A brief filed by the
Respondent has been considered.
Upon the entire record in the case and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Pius Halter, an individual proprietor operating as Pius
Halter Truck Lines, with his place of business in
Bismarck, North Dakota, is engaged in transporting grain
by truck from points in North Dakota to milling points in
the State of Minnesota. During the past year the Re-
spondent derived gross revenues from this business in the
amount of $270,000. The Respondent admits, and I find,
that he is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
In March 1966 the Respondent established certain
written conditions of employment for truckdrivers, in the
' All dates refer to the year 1967 unless otherwise indicated
167 No. 115
858 DECISIONS OF NATIONAL
form of an "agreement" signed at the time by the drivers
then employed and subsequently by new drivers as they
were hired . Among other things , the "agreement" pro-
vided that new drivers with little or no experience would
initially be paid 4 cents per mile, which would be in-
creased to 4-1/2 cents if improvement were shown in 30
days; after completing "one steady year of accident free
driving or damage to any property" the driver would be
increased to 5 cents per mile. In addition , the "agree-
ment" required that each driver "keep his own truck
cleaned inside and out ." This latter requirement involved
washing the outside of the truck , which the driver did on
his own time and at his own expense . Late in 1966 the
Respondent engaged two boys who would wash the
trucks if the driver did not do so, but for this service the
driver was required to pay the boys $3 for each washing.
On December 28 or 29, 1966, 8 or 10 of the drivers
(there were about 14 then employed) met and decided
that they would demand that the Respondent "have his
own trucks washed and stand the expense himself."
Walter ("Roy") Woodworth was designated as
spokesman for the group and Leo Schmidt , another
driver, volunteered to accompany him when they went to
discuss this matter with the Respondent.
B. The Events ofJanuary 2 to 5
1. The evidence
Woodworth and Schmidt went to see Respondent
Halter the morning of January 2. There is no material
conflict in the testimony of the three participants in the
meeting as to what was said during this conference.
Woodworth , who acted as spokesman for the drivers,
testified that he told Halter that he and Schmidt,
representing the entire group of drivers , wished to talk to
him about washing the trucks . Halter, according to
Woodworth , said that there was nothing to talk about,
that when the men had come to work for him they had
agreed to wash their own trucks and "that is the way it
would remain and if we didn 't want to do it , that we
should hand in our keys and go home ." Thereupon,
Woodworth again stated that he was not speaking just for
himself, but for the group, and that "if I was through, the
whole group was through ," as the other drivers were sup-
porting him. Halter replied that he did not care, and that
Woodworth should turn in his keys. Woodworth and
Schmidt did so, and as they left Woodworth told Halter
"that if he should change his mind or should want to talk
about it that he should call me." Schmidt testified to the
same effect as Woodworth; and both testified that they
did not tell Halter they were quitting.
Regarding the meeting with Woodworth and Schmidt,
Halter testified as follows:
Q. (By Mr. Graff) And as far as you remember,
could you tell us what they said to you, and what you
said to them , and what transpired at this meeting?
A. Yes, they came in about 10:00 o'clock in the
morning, and Roy Woodworth asked, "Pius, we want
to talk to you." And I said, "What about?" He said,
"We are sent out from the group , we speak for the
group. We will not wash the trucks no more." And
then I told him , I say, "We are not going to change
anything . If we are going to change it is going to be a
meeting before we change anything ." Then Roy
Woodworth said, "All the drivers made up their
minds not to wash trucks no more.... We are not
LABOR RELATIONS BOARD
going out on the road ." I said , "If you want to work,
there are going to be no changes . The trailers are all
loaded , we have 15 trailers loaded ." They said, "No,
we're not going out." Then I said , " If you are not
going out, turn your keys in."
Q. At that time did they turn their keys in?
A. They turned their keys in and left....
Q. At any time during that day did they say they
were going to quit?
A. They said, " If we don 't get it settled , we are all
going to quit."
After Woodworth and Schmidt left the Respondent's
premises following the meeting with Halter , all 14 of the
drivers met at Woodworth 's home and decided that the
entire group would go out to the truck terminal and speak
to Halter . Accordingly , the morning of January 3 the
group went to the terminal . Woodworth , who again acted
as spokesman , gave the following account of what trans-
pired:
A. We again returned , everybody went out this
time to the shop and I approached Pius again and ...
I told him we were out there to talk to him about the
truck washing.
Q. What was his response?
A. His response was he didn 't have anything to
talk about . He didn ' t want to talk , that we all knew
the conditions , the trucks were there , if we wanted to
drive under the conditions , we should go, if not, hand
in our keys and take our personal belongings out of
the truck and go home.
Q. What was the action of the men , what hap-
pened then , what did the men do?
A. At this time all 14 men , with the exception of
a couple of us that had already turned in our keys,
turned in their keys and picked up their personal be-
longings ... such as radios , blankets and what not,
stored them in our cars and got ready to leave.
Q. (By Mr. Fletcher) Mr. Woodworth, did any of
the men have any statement or say anything as they
were turning in their keys and leaving Pius Halter?
A. As far as I know, I was the only one at the time
we were out at the shop on January 3 that spoke to
Pius and I, to the best of my knowledge, don't know
that anybody told Pius they were going to quit. And,
in fact , when we left I did see Pius one more time just
before going out the door and I told him if he changed
his mind , again , or had any notion at all that he
wanted to talk to us to try to remedy this matter, he
should call either myself or Ray Miller.
Halter 's version of what happened on January 3 was as
follows:
Q. Then what happened the morning of January
3?
A. On January 3, in the morning, they came out
around 10:00 o'clock. I was there right by the door,
as you come in. There were about 14 or 15 - I didn't
count them. The whole group came in.
Q. What did they say at that time?
A. Walter Woodworth asked me again , "We want
to talk to you." I said, "What about?" "I think we
talked already," I said. He said , "We are not washing
trucks any more . I speak for the whole group." I told
him again , "There are going to be no changes, if you
don't go for the whole agreement . The trucks are
loaded. You can go out. We can talk it over after-
PI US HALTER TRUCK
wards." He said, "No, we are all going to quit." I
said, "O.K., turn in your keys."
During the evening of January 3, or on the following
day, two of the drivers, Ralph Bosch and Elmore Mayer,
returned to work; a third employee, the Respondent's
shop mechanic Schmaltz, also took out a loaded truck on
January 3.2
On the morning of January 5 the drivers (other than
Bosch and Mayer) met at Woodworth's home to consider
their future course of action. As Woodworth credibly
testified, "several of the drivers were getting worried
because of the fact two of the men had gone back to
work" and because "they needed to work and they didn't
want to lose their jobs." The men decided to abandon
their demand that the Respondent change his policy on
washing trucks and to advise Halter that they were ready
to return to work. Woodworth telephoned Halter, in the
presence of the other drivers, and the following, accord-
ing to his testimony, ensued:
Q. And what was the conversation with Mr.
Halter?
A. I called Pius on the phone and I told him I un-
derstood that he needed some drivers.
Q. What was his response to that?
A. He said, "I don't need you. I will get new
drivers."
Q. Did you have anything further to say?'
A. Yes, I did. I said, "We are all 12 here and we
are all ready to go back to work."
Q. Was there any response to this?
A. Again he told me that I don't need you, I will
get new drivers.
Q. Was this the end of the conversation, then?
A. This was the end of the conversation....
Q. (By Mr. Fletcher) Did you advise, Mr. Wood-
worth, the employees of the result of this conversa-
tion?
A. Yes.
Q. What did you advise?
A. I told them what Pius had said on the phone
and that in my opinion we were fired, we were
through work. He told me that he didn't need us and
that we were out of jobs.
Halter acknowledged that Woodworth called him on
January 5. However, he denied that Woodworth in-
dicated the men wanted to return to work or that he said
they were fired. According to Halter, the conversation
was as follows:
Q. Could you tell us what he [Woodworth] said
and what you said?
A. He said, "Pius, if you need us we will be at
such-and-such a number."
Q. Do you know what phone number he told you?
A. It was Ray Miller's.
Q. What did you say in return?
A. I said I got his number. That is all I told him.
Q. Was that the end of the conversation?
A. That was the end on the phone.
Q. Did he ever say all the drivers wanted to
return to work?
P Woodworth and Halter testified that these three employees drove
trucks on January 3 Bosch testified that he returned to work on January
4, as did Mayer Both were still working at the time of the hearing
Whether Bosch and Mayer returned on January 3 or 4 is immaterial to the
issues to be determined
3 Langei was reemployed on January 12 or 13 His testimony is that be-
fore that date and following January 5 he asked Halter for a job and was
859
A. No, he never mentioned anything on the
phone. All he said was, "If you want us call us at
such-and-such a number," and I told him I had that
number, and that was the end of the conversation.
Q. And he never said that all 12 drivers wanted to
come back to work?
A. He never mentioned anything.
Q. Did you at that time say they were fired?
A. No, I didn't.
Q. Did you say that you didn't want them to come
back and that you were going to get new drivers?
A. I didn't either.
Immediately after the telephone conversation between
Woodworth and Halter the men decided they were in
need of assistance and 10 of them went to the Union's
hall in Bismarck. There they all paid initiation fees or, in
some instances, dues to bring themselves into good stand-
ing. After joining the Union, it was determined by the
group that three of the men, James Zeller, Lenny Langei,
and Wayne Fahlsing, would attempt to get their jobs
back. The three went to the Respondent's terminal that
afternoon and spoke to Halter.
Zeller, who was employed at the time of the hearing,
testified that when the three appeared and asked if they
could go back to work, Halter replied that they could. At
that point, according to Zeller, Fahlsing remarked that
they had joined the Union and Halter said, "Well, if you
are in the Union, I can't let you go out." Halter asked for
the return of the bills of lading previously given the men,
but as they were leaving he called Zeller back and told
him that he could go out if he would drop the Union.
Zeller replied that he would let Halter know. Zeller
returned to the union hall, told Dale Robberstad, the
secretary-treasurer of the Union, that he "needed the job
pretty bad," and was told by Robberstad that he could
return to work. Zeller returned to the terminal about an
hour after his first visit, assured Halter that he was no
longer in the Union, and was permitted to go out with a
truck.
Langei testified that after each of the men had been
given a bill of lading and assigned a truck Fahlsing said,
"What would you [Halter] say if the Union represented
us?" Halter replied that he did not want the Union and
could not pay union wages, and added that the men
should return the bills of lading and that he could close
the shop and make a living running two trucks. Although
it appears from Woodworth's testimony that Langei and
Fahlsing returned to the union hall with Zeller, there is no
evidence that these two men went a second time that day
to the terminal in an effort to get theirjobs, as did Zeller.3
Fahlsing did not testify.
Halter denied that he told the three men that they
would not be rehired because they were in the Union. Ac-
cording to him, Zeller went home to get some clothes be-
fore taking a truck out and he (Halter) did not see Zeller
a second time after the initial meeting in the afternoon.
Halter testified that Fahlsing stated that he had to go
home and could not go to work, and thereafter did not
return. Halter was not questioned why Langei failed to go
to work on January 5.
told that Halter wished first to speak to his lawyers. Later, he was given
his job, after he signed a statement , dated January 13 , that he "will drop
charges I have made on Pius Halter" (apparently a reference to the charge
herein, which was filed on January 6 and named Langei as one of the dis-
criminatees ) and that he would "come back on the same plans as I
started "
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Conclusions
Upon the evidence summarized above, I am persuaded
and find that the Respondent's drivers were engaged in
protected concerted activity in endeavoring to obtain a
change in the requirement that they wash their own
trucks at their own expense and on their own time, that
they did not quit their jobs when Halter refused to make
any change but went on strike, that on January 5 they of-
fered to return to work on the former basis, and that the
Respondent then refused their offer and in effect
discharged them. In reaching these conclusions I neces-
sarily reject the Respondent's contention that the men
quit when they declined to go to work on the old terms
and turned in their keys as Halter demanded, and I also
find no merit in the alternative argument that they were
properly discharged for striking in breach of the so-called
"agreement."
Clearly the employees were engaged in a protected
concerted activity when they undertook to obtain a
change in their conditions of employment relating to the
washing of their trucks. Woodworth and Schmidt made
clear to Halter, when they met with him on January 2,
that they were presenting a request on behalf of the
group. The next day the entire group sought to discuss
their truck washing complaint with Halter. Halter, how-
ever, adhered to his position, stated to Woodworth and
Schmidt the previous day, that there would be no change
in working conditions. He told the men they could either
go to work under the old terms or turn in their keys. The
men did not then abandon their demand but, in com-
pliance with Halter's alternative requirement, turned in
their keys. I credit the consistent testimony of the em-
ployees that they did not then say they were quitting.
Halter's testimony, that Woodworth said, "we are all
going to quit," is not credited.4 I accept Woodworth's
testimony that as the men were leaving he said to Halter
that if the latter changed his mind and wished to discuss
the employees' demand to call either Woodworth or
Miller, another driver. In short, I find that the drivers as
a group withheld their employment on January 3 and, in
effect, engaged in a strike in support of their demand for
a change in the truck washing requirement.
On January 5, after two of their number (Bosch and
Mayer) had broken ranks and returned to work and
because several others needed work and were afraid of
losing their jobs, the drivers decided to abandon their de-
mand for a change in their conditions of employment and
return to work. I credit the testimony of Woodworth, sup-
ported by others, and find that he communicated this
change of position to Halter and stated that the men were
ready to return to their jobs on the preexisting terms. I
further find that Halter's response was that he did not
need them and that he would hire new drivers. Halter's
testimony, that all Woodworth said was "if you need us
4 The only other witness who testified that the men quit on January 3
was Bosch , a witness for the Respondent , who returned to work on Janu-
ary 3 or 4. He first testified that Woodworth "told Pius Halter if he won't
give us what we want we are going to quit and walk out " He then
testified
Q Then, when you turned in that key that morning, did you feel
you quit9
A No
Q Well, did you feel as if you had terminated your employment by
turning in your key?
A Yes, I did
I do not credit Bosch 's testimony that Woodworth said the men were
call us" at a stated telephone number, and that Wood-
worth did not say that the men wanted to and were ready
to return to work, I find unbelievable. I conclude that
Halter refused the employees' unconditional offer to
return and, in effect, discharged them.
I find, upon the basis of the credited testimony of Zeller
and Langei, that Halter agreed to rehire these two and
Fahlsing during the afternoon of January 5. However,
when Fahlsing revealed that the men had joined the
Union, Halter changed his mind, required them to return
the bills of lading he had given them, and told them he
could not let them go out if they belonged to the Union.
Halter told Zeller, individually, that if he dropped the
Union he could be employed. Zeller said he would let
Halter know his decision later, and then went to see the
Union's secretary-treasurer, who said he could return.
Thereupon Zeller returned to Halter's place of business
and assured Halter that he was no longer in the Union.
Zeller was allowed to return to work and was employed
at the time of the hearing.
Another driver, Carl Buchmiller, returned to work on
January 5. On April 15 he quit to work elsewhere. On
January 8 Kenny Schumacher, who had been a part-time
driver prior to January, returned to work.5 According to
Schumacher's credited testimony, he saw Halter on
January 7 and was asked by Halter if he wished to come
back to work. Schumacher replied he would return when-
ever Halter "had his trouble squared off." The next day
Halter called him and he agreed to return. He was still
employed as a full-time driver at the time of the hearing.
Ben Sauter, who returned to work on January 12,
credibly testified that Halter called him that day and
asked if he would return. Sauter said he would consider
and call him back. After talking to Eugene Skoog and Ray
Miller, Sauter called Halter and agreed to go to work. He
quit on April 13. Sauter testified that about February 1
he overheard Halter tell Pete Schumacher, another
driver, that if the shop "went union" he would close the
doors. About March 1 Halter asked Sauter if he intended
to work steadily as a driver; Sauter asked Halter "what
the deal is with the Union," and Halter replied that "if we
went union he would close the doors."6 On March 12
Halter asked Sauter "if I was going to run steady or go
back on construction"; Sauter answered that he had not
decided but would wait "until the union matter was set-
tled." Halter then observed that if the Union were
selected he would close the doors. Although Halter de-
nied the statements attributed to him by Sauter, I do not
credit him. I find that by warning that he would close the
doors if the Union were chosen as the representative of
the drivers the Respondent violated Section 8(a)(1) of the
Act.
I further find that the Respondent discharged the
drivers on January 5, after they made an unconditional
application to return to work and abandoned their con-
quitting their Jobs Elmore Mayer , also a witness for Respondent , testified
he did not recall the word "quit" being used at the January 3 meeting He
returned to work either on January 3 or 4
S Schumacher did not attend the meeting at Woodworth ' s home on
January 5 or later that day go with the others to Join the Union However,
he joined the Union on January 6, when he returned after having been out
of town following the January 3 group meeting with Halter
I The Union had filed a petition for certification on January 6 A stipu-
lation for a consent election was approved by the Regional Director on
March 3. An election was held on March 16, which the Union won by a
vote of 7 to 3 The Union was certified on March 23
PI US HALTER TRUCK
certed activity, and that the Respondent took such action
because the men had acted concertedly in demanding a
change in working conditions. By discharging the em-
ployees for having engaged in protected concerted activi-
ty, the Respondent thereby violated Section 8(a)(1) of the
Act, and I so find.'
D. Discharge of Langei and Elmer
I Lenny Langei
Langei was first employed by the Respondent in
November 1966. As stated above, he participated in the
concerted activity of January 2 to 5, and was refused
reinstatement the afternoon of January 5 when he, Zeller,
and Fahlsing appeared at the Respondent's terminal for
that purpose. At that time, Halter told the three, when
they revealed that they were represented by the Union,
that they could not go out on the assignments he had
given them.
Langei called Halter a few days later and asked if he
could have his job back Halter replied that he would first
have to talk to his lawyers. Langei was rehired on January
12 or 13, but he was first required to sign a statement that
he would "drop all charges ... and will come back on the
same plans" as when he started.
On Sunday, February 5, Langei and three other drivers
made a trip to Superior; on their return they spent Mon-
day night on the highway and came to Respondent's ter-
minal about 10 or 11 o'clock Tuesday morning, February
7. That afternoon Halter called Langei, who was at home,
to come to the shop. According to Langei, Halter said he
was discharged and gave the following reasons, on which
they had "some discussion," for terminating him: follow-
ing too close, not taking orders, cutting tires, throwing
away a fuel cap, urinating on an engine, and having a dirty
truck cab. Langei signed a prepared statement (Resp.
Exh. 2) listing the foregoing (other than cutting tires and
having a dirty cab) as the reasons for his release from em-
ployment.
In testifying, Langei either denied or sought to explain
the reasons given him by Halter. The accusation that he
had followed too close behind another truck related to a
trip he had taken about February 1 to an unfamiliar
destination. At Halter's suggestion he had followed the
other two trucks making the same trip, but testified that
he had gotten no closer to the truck ahead of him than the
length of a city block. As to not following orders, Langei
testified that on one occasion, the time of which he did
not fix, he came back to the shop after starting on a trip
because of a short circuit on the fuel pump. He refused
the suggestion or order of the assistant manager that he
take the truck out despite the defect and called Halter,
who told him to put the truck in the garage to have it
fixed. Nothing further was said about this incident until
the day he was discharged. Langei denied that he had
ever cut tires or been reprimanded therefor, and also de-
nied that he had thrown away a fuel cap. He also denied
that he had used the "doghouse" as a urinal," but ad-
mitted that the cab of his tractor was dirty and untidy on
February 7, as he had not had time to make up the bed or
clean debris out of the cab.
' Since the men had not joined the Union or engaged in any activity
identified with the Union at the time they were refused reinstatement and
discharged , I do not find that Halter's action in terminating the group on
January 5 was violative of Section 8(a)(3) of the Act
861
Halter testified that he personally had ascertained that
Langei followed too closely and that other drivers, includ-
ing Sauter and Zeller, had registered complaints to this ef-
fect. Neither Sauter nor Zeller was questioned about any
complaints they had made about Langei's driving,
although both appeared as witnesses for the General
Counsel. According to Halter, driver Elmer informed him
that Langei had thrown away the cap from the fuel tank.
Elmer, also a witness for General Counsel, was not
questioned about this incident. Halter testified that Lan-
get had refused to take out a load when ordered to do so
by the assistant manager. It is Halter's testimony that
Langei admitted using the "doghouse" opening as a urinal
and that Langei "thought it was funny .when I asked him
about this."
There is no evidence that Langei engaged in any activi-
ties in behalf of the Union following his return to work on
January 12 or 13. Asked by me how he came to sign
Respondent's Exhibit 2 which listed the reasons for his
discharge, Langei answered: "I don't know. I just signed
it because Pius did. I couldn't tell you why I did it."
I conclude that the evidence is too insubstantial to sup-
port a finding that Langei was discharged on February 7
because of his union or concerted activities. As found
above, the record is devoid of evidence that Langei en-
gaged in any such activities after he returned to work in
January. Nor is there any indication that the continued
pendency of the charges filed by the Union, despite the
statement Langei had signed upon his return to work that
he would drop all charges, was a subject of discussion
between himself and Halter. Langei admitted that on
February 7 he and Halter discussed the reasons being as-
signed by Halter for his termination. Although Langei
testified that he told Halter at the time that none of the as-
signed reasons were true, his somewhat flippant manner
in testifying about some of the alleged incidents and the
fact that he readily signed the statement presented to him
by Halter, suggest that the actions attributed to him by
Halter had some basis in fact. In this connection, I note
that none of the drivers whom Halter had named as infor-
mants about Langei's claimed derelictions was recalled as
a witness although they were available. While the case is
not free from doubt, I am persuaded that the evidence
does not warrant a finding that Langei was discriminatori-
ly discharged on February 7. Accordingly, it will be
recommended that this allegation be dismissed
2. Donald Elmer
Elmer was employed by the Respondent as a
truckdriver in August 1966. He participated in the con-
certed activities of January 2 to 5. On January 12 he
called Halter and asked if he could get his job back.
Halter answered in the affirmative. Before actually
returning to work, Elmer wrote out at Halter's dictation
and signed the following statement, dated January 12:
1, Donald Elmer, drop all charges I made on Pius
Halter. I come back on the same deal I started with.
The reason I put the claim in, somebody made me.
On Saturday, March 4, Elmer, so he testified, returned
from a trip to Minnesota. His truck had to be placed in the
shop for repairs, and Halter told him to come in about
" The "doghouse" is a slightly raised section in the tractor cab, between
the two front seats, with a cover or lid on it, which opens into the motor
area so that oil may be put into the engine
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sunday noon and take another truck out. However, on
Sunday Halter did not dispatch Elmer but told him that he
should return Monday noon by which time his truck
would be repaired. Elmer did return on Monday, but his
truck was still in the shop. Elmer waited all afternoon and
in the evening was told by the shop foreman at the inter-
national harvester garage that the repairs would not be
completed that day. Thereupon, Elmer called Halter and
told him of the circumstances; Halter replied that Elmer
should wait until another truck returned from the East to
the Respondent's shop and take it out. About 2 hours
later Halter called Elmer, and advised him that another
truck had come in, Elmer agreed, at the time, to take it
out. However, he then calculated that he had been on
duty or waiting time about 9 hours and that, by the time
he got to the Respondent's shop it would be necessary for
him to take a break of 8 hours in order not to violate the
ICC rule regulating the maximum driving and on-duty
time." Elmer called Halter and told him that he was not
taking a truck out that night. Halter's response, according
to Elmer, was, "If you don't take the truck out, you are
fired, come down tomorrow and pick up your check."
Elmer then went home and returned the next day,
Tuesday, March 7. On that occasion, Halter asked Elmer
to sign a statement listing two reasons for his discharge:
refusing to take the truck out Monday night and ruining
tires on a trailer on an earlier occasion. 10 Elmer refused
to sign the statement and left.
Halter's version of what occurred immediately before
Elmer was discharged is not materially different from that
of Elmer. He testified that Elmer's truck was in the shop
for repairs and that when Elmer called Sunday noon ask-
ing if he could go out Halter told him that he could. How-
ever, Elmer did not come in until about 6 o'clock, by
which time Halter had dispatched another driver with the
available truck. Another truck did not become available
until Monday night. Halter was aware that Elmer was at
the international harvester shop during Monday, awaiting
completion of repairs to his regular truck, but testified
that he had not told Elmer that the truck would definitely
be ready to take out that day or that Elmer should wait at
the repair shop. About 8 o'clock Monday evening a truck
became available, and Elmer agreed he would take it out.
However, about a half hour later Elmer called and said he
would not, whereupon Halter said he was fired.
There is no evidence that Elmer engaged in any activity
on behalf of the Union after his reemployment in January.
He did testify, without contradiction, that at a time not
fixed prior to his discharge Halter remarked to him, after
telling him that he (Elmer) had received a telephone call
at the shop from Ray Miller, one of the unreinstated
drivers who had participated in the concerted activities
early in January, that Elmer should not "hang around
with them boys" because "all they want is your job
back." This incident was not further explored on the
record, and its significance in relation to Elmer's termina-
tion is a matter of pure speculation. There is no doubt that
Elmer refused to take out another truck on the night of
Monday, March 6, after having first stated that he would,
9 Elmer's interpretation of the rule appears to be in error Assuming he
had been on duty for 9 hours while waiting for repairs to be completed, the
applicable regulation states that a driver shall not drive "For any period
after having been on duty 15 hours following 8 consecutive hours off-du-
ty " (49 CFR 195.3)
10 Elmer testified that early in February he started out with a truck and,
after going some distance , discovered that the rear wheels on , the trailer
and that Halter told him that he was fired if he did not
take the truck out. I conclude that Halter discharged
Elmer because he refused to go out with the truck the
night of March 6. While Halter's action was drastic and
perhaps unreasonable, assuming Elmer had explained to
him that his refusal was based upon his understanding
that ICC rules would require him to be off duty for 8
hours immediately upon taking charge of the truck,
Halter impressed me as an individual not inclined to
tolerate what to him appeared to be insubordination. In
view of the absence of any evidence that Elmer had par-
ticipated in any union activity in the approximately 2
months following his reemployment on January 12, I am
persuaded that the record does not warrant an inference
that his prior participation in concerted activity prompted
Halter to seize upon his refusal to carry out an assign-
ment as a pretext for terminating him. I shall therefore
recommend that the allegation that Elmer was discrimina-
torily discharged on March 6 be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent found to constitute
unfair labor practices as set forth in section III, above,
occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in un-
fair labor practices violative of Section 8(a)(1) of the Act,
I shall recommend that the Respondent cease and desist
therefrom and take appropriate affirmative action in order
to effectuate the policies of the Act.
Since the Respondent unlawfully refused reinstatement
to his employees on January 5 upon their unconditional
application therefor and discharged them in reprisal for
having engaged in concerted activities, which they then
abandoned, it will be recommended that the Respondent
offer to those who have not been reinstated or offered
reinstatement, immediate and full reinstatement to their
former or substantially equivalent positions, discharging
if necessary any replacement employees hired after
January 5. Those entitled to offers of reinstatement are
Wayne Fahlsing, Raymond Miller, Leo M. Schmidt, Eu-
gene Skoog, and Walter L. Woodworth. With respect to
Bernard Meyer, who was not called as a witness, Halter
testified without contradiction that Meyer was offered his
job back but he called Halter 2 hours later and stated he
was going to Kansas to work. I find that Meyer declined
an offer of reinstatement, which on this record cannot be
said to have been conditional." I shall further recom-
mend that those to be offered reinstatement be made
whole for any loss of earnings suffered by them from
had locked with the result that the tires were ruined According to Elmer,
Halter subsequently told him that the incident would not be held against
his driving record
11 Halter denied that he asked Meyer to sign a statement dropping
charges, as in the case of Elmer and Langei There is no testimony to the
contrary
PIUS HALTER TRUCK 863
January 5, the date they were refused reinstatement and
discharged, to the date of Respondent's offer of reinstate-
ment. In addition, those who were reinstated after Janu-
ary 5 are entitled to back pay from that date until the date
they were reinstated.' 2 The record is unclear when Meyer
rejected Respondent's offer of reinstatement He is, how-
ever, entitled to backpay from January 5 until the date he
refused the Respondent's offer of reinstatement, a matter
which can be determined in compliance proceedings. The
backpay shall be computed in accordance with the formu-
la approved in F. W. Woolworth Company, 90 NLRB
289, with interest at the rate of 6 percent per annum, as
provided in Isis Plumbing & Heating Co., 138 NLRB
716. I shall also recommend that the Respondent
preserve and, upon request, make available to the Board,
payroll and other records to facilitate the computation of
backpay due.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Pius Halter, d/b/a Pius Halter Truck Lines, is en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. General Drivers Local 123, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. By discharging his employees because they engaged
in protected concerted activities in seeking to obtain a
change in their conditions of employment, and by warning
employees that he would close the doors of his shop if the
employees selected the Union as their representative, the
Respondent violated Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
5. In other respects alleged in the complaint, the
Respondent has not engaged in unfair labor practices.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclu-
sions of law, and upon the entire record in the case, it is
recommended that the Respondent, Pius Halter, d/b/a
Pius Halter Truck Lines, Bismarck, North Dakota, his
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging concerted activities of his employees
by discriminatorily discharging any of his employees, or
by discriminating in any other manner in regard to their
hire or tenure of employment or any term or condition of
employment.
(b) Warning employees that he will close the shop
doors if they select General Drivers Local 123, affiliated
with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, as their
representative for purposes of collective bargaining, or in
any like or related manner interfering with, restraining, or
coercing his employees in the exercise of their right to
self-organization, to form labor organizations, to join or
assist the above-mentioned Union or any other labor or-
ganization, to bargain collectively through representa-
tives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any
and all such activities.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Offer to Wayne Fahlsing, Raymond Miller, Leo M.
Schmidt, Eugene D. Skoog, and Walter L. Woodworth,
immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their
seniority or other rights and privileges, discharging if
necessary any employees hired to replace them.
(b) Make whole the aforesaid employees, and Donald
Elmer, Lenny Langei, Ben Sauter, and Kenny Schu-
macher, in the manner set forth above in the section enti-
tled "The Remedy" for any loss of earnings suffered by
reason of the discrimination against them.
(c) Notify the said Wayne Fahlsingk Raymond Miller,
Leo M. Schmidt, Eugene D. Skoog, and Walter L. Wood-
worth, if presently serving in the Armed Forces of the
United States of their right to full reinstatement upon ap-
plication in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due.
(e) Post at his place of business in Bismarck, North
Dakota, copies of the attached notice marked "Appen-
dix. " 13 Copies of said notice, on forms to be provided by
the Regional Director for Region 18, after being duly
signed by an authorized representative of the Respond-
ent, shall be posted immediately upon receipt thereof,
and be maintained for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director for Region 18, in writ-
ing, within 20 days from the receipt of this Decision, what
steps Respondent has taken to comply herewith.14
IT IS FURTHER RECOMMENDED that the complaint be
dismissed in all other respects.
12 The following employees, who were reinstated, are to be paid
backpay from January 5 until the date appearing after their name'
Donald Elmer -January 12 or 13
Lenny Langer-January 12
Ben Sauter -January 12
Kenny Schumacher-January 8
13 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice . In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
14 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 18 , in writing, within 10 days from the date of this Order, what
steps Respondent taken to comply herewith "
864 DECISIONS OF NATIONAL
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT discourage concerted activity by
discriminatorily discharging any of our employees or
by discriminating in any other manner in regard to
our employees' hire or tenure of employment or any
term or condition of employment.
WE WILL NOT warn employees that we will close
the shop doors if they select General Drivers Local
123, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America as their representative, or in any like or
related manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-or-
ganization, to form labor organizations, to join or
assist the above-named Union or any other labor or-
ganization, to bargain collectively through represent-
atives of their own choosing, and to engage in other
concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to
refrain from any and all such activities.
WE WILL offer Wayne Fahlsing, Raymond Miller,
Leo M. Schmidt, Eugene D. Skoog, and Walter L.
Woodworth immediate and full reinstatement to their
former or substantially equivalent positions, without
prejudice to any seniority or other rights and
privileges previously enjoyed, discharging if necessa-
ry any persons hired to replace them.
LABOR RELATIONS BOARD
WE WILL make whole the following for any loss of
earnings they may have suffered as a result of the dis-
crimination against them:
Wayne Fahlsing Donald Elmer
Raymond Miller Lenny Langei
Leo M. Schmidt Ben Sauter
Eugene D. Skoog Kenny Schumacher
Walter L. Woodworth
WE WILL notify the above-named employees to be
offered reinstatement, if presently serving in the
Armed Forces of the United States of their right to
full reinstatement upon application in accordance
with the Selective Service Act and the Universal
Military Training and Service Act, as amended, after
discharge from the Armed Forces.
All our employees are free to become or remain, or to
refrain from becoming or remaining, members of the
above-named or any other labor organization.
Pius HALTER , D/B/A PIUS
HALTER TRUCK LINES
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 316 Federal
Building, 110 South 4th Street, Minneapolis, Minnesota
55401, Telephone 334-2611.