Pulley Freight Lines, Inc.

National Labor Relations Board - Board Decisions

Dec 29, 1961

134 N.L.R.B. 1745 (N.L.R.B. 1961)

PULLEY FREIGHT LINES, INC. 1745
prolonged by the Respondent 's unfair labor practices and thereby was an unfair labor
practice strike. Employees who were on strike on that date and thereafter thus be-
came unfair labor practice strikers who were entitled to reinstatement upon appli-
cation irrespective of whether their positions had been filled by the Respondent's hire
of other employees as replacements for them . Accordingly , in order to restore the
status quo as it existed prior to the strike and thereby to effectuate the policies of the
Act, it will be recommended that the Respondent shall, upon application , offer rein-
statement to their former or substantially equivalent positions , without prejudice to
their seniority or other rights and privileges , to all their employees who were on
strike on and after August 2 , 1960 , dismissing , if necessary , any persons hired
after that date. It is also recommended that the Respondent be ordered to make
whole those employees who were on strike on and after August 2, 1960, for any
loss of pay they may have suffered or may suffer by reason of the Respondent's
refusal, if any, to reinstate them, by payment to each of them a sum of money equal
to that which he normally would have earned as wages during the period from 5 days
after the date on which he applied for reinstatement , to the date of Respondent's
offer of reinstatement . Loss of pay shall be computed on a quarterly basis in the
manner established by the Board in F. W . Woolworth Company, 90 NLRB 289;
N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344.
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. Southwestern Porcelain Steel Corporation is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. United Steelworkers of America , AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. The aforesaid labor organization at all times since April 27, 1960, has been
the duly designated exclusive bargaining representative of Respondent 's employees
for the purposes of collective bargaining within the meaning of Section 9(a) of the
Act in the following appropriate unit:
All production and maintenance employees at Respondent's Sand Springs,
Oklahoma, plant , including warehousemen, inspectors , shop janitors and all in-
plant truckdrivers, exclusive of all office clerical employees , confidential
employees , guards, and supervisory employees as defined in the Act.
4. By failing and refusing at all times since May 18 , 1960, to bargain collectively
with the aforesaid labor organization as the exclusive representative of the employees
in the foregoing appropriate unit , the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Pulley Freight Lines , Inc. and District Lodge 118 , International
Association of Machinists, AFL-CIO. Case No. 18-CA-1258.
December 29, 1961
DECISION AND ORDER
On October 19, 1961, Trial Examiner Robert E. Mullin issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached' hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
134 NLRB No. 169.
030849--632-vo1 134-111
1746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
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 Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
The Board adopts the Recommended Order of the Trial Examiner
with the modification that provision 2(d) read: "Notify the Regional
Director for the Eighteenth Region, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply
herewith." 1
1 In the notice attached to the Intermediate Report as the Appendix , the words "Decision
and Order " are hereby substituted for the words "The Recommendations of a Trial
Examiner." In the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the words "A Decision and Order" the
words "A Decree of the United States Court of Appeals , Enforcing an Order."
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , brought under Section 10 (b) of the Labor Management Relations
Act of 1947, as amended (61 Stat. 136, 73 Stat. 519), herein called the Act, was
heard in Des Moines, Iowa, on July 24, 1961, pursuant to due notice to all parties.
The complaint, issued by the General Counsel of the National Labor Relations
Board , and based on charges duly filed and served, alleged that the Respondent had
engaged in unfair labor practices proscribed by Section 8(a) (1) and (3) of the Act.
In its answer , duly filed, the Respondent conceded certain facts with respect to its
business operations , but it denied the commission of any unfair labor practices. At
the hearing all parties were afforded full opportunity to be heard, to examine and
cross-examine witnesses , to introduce relevant evidence , and to argue orally. Oral
argument was waived. Subsequent to the hearing both the General Counsel and the
Respondent submitted able briefs. Of particular note was the brief of counsel for
the Company which was unusually thorough and comprehensive.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent , an Iowa corporation , is an over-the-road carrier of perishable
commodities , licensed by the Interstate Commerce Commission . It has a place of
business in Des Moines, Iowa, and during the 12 months prior to the hearing, a
representative period , it derived gross revenues in excess of $1,000,000 from its
carrier operations . Upon the foregoing facts, which the Respondent concedes,.I
find, that Pulley Freight Lines, Inc., is engaged in commerce within the meaning of
the Act.
H. THE LABOR ORGANIZATION INVOLVED
District Lodge 118, International Association of Machinists , AFL-CIO, herein
called Machinists or Union , is a labor organization within the meaning of the Act.
PULLEY FREIGHT LINES, INC. 1747
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Contentions of the parties
The General Counsel alleges that on April 16, 1961, the Respondent discrimina-
torily terminated Dale R. Miller I because of his activity on behalf of the Machinists
and that the Company further violated Section 8(a) (1) of the Act through the
activities of Milton G. Clemenson, the shop foreman. The Respondent avers that
the discharge of Miller was for cause and that the remarks of Clemenson which have
been put in question are so trivial as not to warrant an unfair labor practice finding.
B. The facts
1. Introduction and sequence of events
The Respondent's drivers, approximately 60 in number, have long been members
of the Teamsters Union and the Company presently has collective-bargaining agree-
ments with two different locals of that labor organization. On the other hand, the
shop employees at the Des Moines terminal, approximately 10 in number, have
never been organized.
In March 1961, Miller, a mechanic in the shop, became interested in the Machin-
ists and frequently discussed this with his fellow employees. This interest attracted
the attention of the shop foreman soon thereafter. According to Donald Hamilton,
one of the mechanics, about April 1, Foreman Clemenson questioned him as to
whether he had heard about Miller's desire to organize a union in the shop. When
the employee replied in the affirmative, Clemenson inquired further as to Hamilton's
own preferences on the matter of union organization.2 On April 14, Miller utilized
a morning off from work to visit the office of Machinists' Local 254 and there received
a supply of authorization cards. He returned to the shop about 11 a.m. and during
the lunch hour that day sought to enlist the support of his coworkers for that Union.
In so doing, he discussed the matter with Lloyd Larsen, Donald Hamilton, Robert
Aiken, and Gary Shoeman, all fellow employees. Miller announced that he was
ready to sign up with the Machinists, that he had cards for all of them, and that he
wanted to know how many others would join with him. The other men, however,
did not share his enthusiasm. Gary Shoeman, a nephew of Donald Shoeman, the
Respondent's vice president, stated that if they joined a labor organization, Nenver
Rietveld, president of the Company, would close the shop. Larsen was similarly
apprehensive. Notwithstanding considerable discussion, Miller was unable to per-
suade any of the other employees to sign a union card.
Miller's activities promptly came to the attention of the management. Gary
Shoeman testified that shortly after the noonday discussion of April 14 he mentioned
the subject of the employees' conversation to Dale R. McClintic, Respondent's direc-
tor of personnel and safety.3 Clemenson, Miller's immediate superior, testified that
McClintic discussed this information with him that same day, April 14.
Miller was not scheduled to work the next day, a Saturday. On April 16, a Sunday,
he reported for work at 7:30 a.m. Clemenson was not on duty that day, but about
8:30 a.m. he appeared at the shop to inform Miller that he was discharged. Accord-
ing to Miller, the following conversation ensued between him and his foreman:
The first thing he said was, "I hear you've been causing trouble around here." I
asked him what he was talking about. He said "Those cards you were handing
out Friday." I said I didn't hand out any of the cards. He said, "Well, you
had some." I said, "yes, I had some and still have them." . . . [Clemenson]
went on to say my attitude was bad, my work had slowed down and I wasn't
performing my duties as I had before. [Clemenson then said] "This union
stunt just tops it off, if you don't like your job here you can go pack up your
tools and go home."
Clemenson testified that in the conversation with Miller on this occasion he told the
employee that he was being discharged because of his general attitude, his going
home early the previous Sunday, and an oil filter incident that week. According to
Clemenson,
I told him due to all this difficulty we were having, I told him I thought
he would be better and happier at a different place of employment than at
Pulley Freight lines... .
1In the pleadings this individual Is also referred to as Dale L Miller.
2 The foregoing findings are based on the credible testimony of Hamilton, none of which
was denied or contradicted by Clemenson.
3 This finding is based on the credited , undenied testimony of Gary Shoeman
1748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Significantly, Clemenson did not deny the comments about Miller's union activities
which the latter attributed to him.
2. The termination of Miller
bale R. Miller was hired by the Respondent as a mechanic in June 1960. His
initial rate of pay was $1.75 per hour. About 2 weeks later he received a 25-cent
an hour increase. In August he received another raise in the same amount. Late
in January 1961 he received a 15-cent increase, thus bringing his hourly rate to $2.40.
Miller testified, and his testimony in this connection was undenied, that with each
successive raise Clemenson complimented him on the quality of his work. He
further testified that prior to his discharge he had never been reprimanded by his
superiors.
The General Counsel alleges that Miller was discriminatorily terminated. The
Respondent avers that this employee was dismissed for reasons wholly unrelated
to his union activities and that its decision to terminate Miller was based on several
events which occurred in the week prior to April 16. These were (1) an incident
involving his servicing of a truck, (2) his failure to work a full day on April 8,
(3) his use of the Respondent's garage to service his own automobile, (4) his
numerous coffee breaks, and (5) his frivolous comments on the drivers' work tickets.
The evidence in connection with these charges will now be considered.
On or about April 13, Robert McGrean, a driver for the Respondent, discovered,
when returning from Chicago, that his tractor had developed a serious loss of oil.
Miller had serviced this tractor earlier that week. The Respondent contends that
the subsequent difficulty was due to his carelessness . According to Miller, when
McGrean returned to the terminal, on April 13, Clemenson told him to inspect the
truck, and that, upon doing so, he found that the leakage was caused by a cam fol-
lower plate which had been-leaking for some time and which he had first reported
to Clemenson 2 months earlier. Miller testified that'on the earlier occasion Clemen-
son had told him to ignore the matter because the job was too big to fix and that
on April 13 his foreman made the same comment at the conclusion of Miller's
inspection. He further testified that on this second occasion Clemenson did not
criticize him or threaten that the matter could be cause for his discharge. This last
testimony was not contradicted, for although Clemenson testified that he discussed
the matter with Miller and explained that serious damage might have resulted from
the loss of oil, he did not testify that the employee was either reprimanded or warned
of possible discharge .4
Miller was normally scheduled to work at the terminal on Sunday. On April 9,
a Sunday, Miller left the shop at 11:15 a.m. approximately 2 hours before his
normal quitting time.5 Miller testified that earlier in the week he had asked Clem-
enson for permission to be off early on Sunday and that the latter had assured him
he could do so, provided all of his work was finished. Miller was not scheduled
to work on Saturdays. On the evening of April 8, however, he reported to the
shop and spent approximately 3 hours on the trailer hookups and related work that
he would normally perform the following morning. As a result, by 11.15 a.m. the
next day he completed all of this work that remained and departed.
Clemenson denied that Miller had permission to leave early on Sunday, or to
work in the shop on Saturday night. He further testified that on Monday morning
he discussed this with Miller. He testified, "I explained to him that if a man works
on Sundays, if he'd like to have time off if he'd come to me I would try to work
with him as much as possible but I didn't like to have a man go off and leave the shop
without having a definite arrangement. " Miller conceded that on about Tues-
day of the following week Clemenson asked him why he had not worked the regular
schedule on Sunday and reminded him that he had been receiving a 10-cent bonus for
Sunday work with the stipulation that he stay after the trailers had been hooked
up and do any major work assigned .° From the testimony of these two witnesses it
* Certain aspects of Clemenson's testimony reflect seriously on the weight to be accorded
the shop foreman's account of this incident. Thus, Ciemenson testified that while still
-en route McGrean had telephoned him about the oil leak, whereas McGrean, Larsen, and
Miller all testified that McGrean had called and talked only to Larsen. Secondly, the
work ticket prepared on this incident was written by Clemenson rather than by McGrean,
the driver, and the one who would customarily write such a ticket. Finally, whereas this
work ticket referred to the oil loss as having occurred on the way to Chicago, McGrean
testified that the incident happened on the return trip from Chicago to Des Moines.
s This finding is based on Miller's credited , undenied testimony
9 Foreman Clemenson was not in the shop on Sundays. Miller, however, was not alone
:Donald Hamilton , another mechanic , was also on duty. Although the latter was primarily
PULLEY FREIGHT LINES, INC. 1749
is my conclusion that although Miller had secured Clemenson's permission to leave
early on Sunday, provided his work had been completed as he testified, on the other
hand, Miller had not been given permission to rearrange his own schedule by coming
to the shop for several hours of work on Saturday evening.
Sometime in March 1961, the Respondent announced a rule to the effect that,
in the future, employees would not be allowed to use the shop facilities to work on
their private vehicles. Miller admitted that on April 8, while off duty, he had
brought his own automobile to the shop to repair an emergency brake and that
he had not requested permission from his foreman to use the shop for this purpose.
On the other hand, while Miller was at the shop on this occasion Foreman Clemen-
son was also there but said nothing to Miller either then or later about this breach
of the company regulation. At the hearing, Clemenson conceded that at the time
in question he himself was performing some repairs on the private automobile of
a neighbor. From the record it appears that the company rule in this connection
was more honored in the breach than in the observance. Thus, Robert Aiken,
another mechanic, testified that he too had worked on his own car in the shop on
April 8, and had done so without permission. Robert Spurgeon and Lloyd Larsen,
both shop employees, testified to the same effect. These same witnesses also testi-
fied that they had worked on the cars of other employees without having secured
permission. None was ever reprimanded. Even Clemenson did not assert that
he had ever mentioned the matter to Miller until the day of his discharge.
The Respondent also asserted that Miller had loitered on the job and taken
unauthorized coffee breaks. According to Clemenson, Miller indulged in frequent
coffee breaks and his habit in this regard grew progressively worse from about
February until his discharge. The foreman's testimony to this effect, however,
was not corroborated by the employee's timecards. These were supposed to list
the amount of time spent by the employee on such intervals.7 During his cross-
examination, Clemenson was asked about several of Miller's timecards. The latter
bore no record of any such unauthorized use of his time and Clemenson conceded
that Miller's time record had never been docked for any extra or unauthorized
coffee breaks. Insofar 'as loitering was concerned, no specific instance was alleged.
This general allegation, by itself however, was hardly enough to justify Miller's dis-
missal, for even Vice President Shoeman testified that, in his view, every man in
the shop had been guilty of loitering.8 The Respondent offered in evidence several
shop tickets on which Miller had made various comments, presumably to establish
a deterioration in his attitude. These were the tickets on which the truckdrivers had
requested certain work to be done by the shop. The mechanic assigned to service
a truck was required, upon completion of the job, to describe the work performed
on the reverse side of the ticket. The Respondent produced five such tickets bearing
dates from February 28 to April 11. On each of these, in addition to noting the
work and service performed, Miller had added a captious remark to the driver .9
Mr. Shoeman testified that these comments tended to arouse friction between the
drivers and the mechanics. On the other hand, none of the drivers testified that
Miller had failed to perform the work requested, nor was there evidence that any
of them had complained about either his work or the notations on the shop tickets.
Miller testified that Clemenson had never reprimanded him for this practice and
that on one occasion he had told Miller that such notes represented a good way to
answer some of the more frivolous requests of the drivers. It was undenied that
at the time of Miller's discharge, Clemenson did not mention these work tickets as
a cause of the dismissal.
Clemenson and McClintic testified that they conferred about Miller's work per-
formance on April 13, and that they discussed it again on April 14, along with
responsible for the refrigeration units on the trailers, according to Clemenson, both
Hamilton and Miller helped one another. Clemenson testified that it was important for a
mechanic to be present during the checkout of the trucks which began about noon. The
parties stipulated that on April 8, Hamilton was on duty from 10 a.m. to 7:40 p.m.
7 The Company permitted each employee two coffee breaks per day. These were sup-
posed to be noted on the timecard, but the employee was not paid for the time so spent.
8 Thus, Shoeman testified that prior to April 15 "I made several trips to the shop and
I saw every man down there loitering I saw every man down there on coffee breaks. I
saw men when I walked in start back to work again. . . .
8 Thus on one, in which the driver, Sam McGrean, had requested several checks on the
air pressure system, Miller wrote that he had made the checks and then added "what's
this air kick, Sam?" On another, where he had had to weld some metal on the tractor
cab, Miller had described the operation as "Put little piece of tin on big piece of tin."
Shoeman conceded that the 5 work tickets offered as exhibits were the worst they could
find after an examination of from 50 to 60 in Miller's file.
1750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
President Rietveld. According to Shoeman , Miller, and McClintic, at a final
conference on April 15, it was decided that Miller should be discharged.io
C. Concluding findings
In support of the General Counsel's contention that Miller was discriminatorily
terminated there is the following evidence: Miller' s union activities had first come to
Clemenson's attention on about April 1, when the latter questioned Hamilton about
Miller's "wanting to organize a union in the shop" and also interrogated Hamilton
as to his own views on that question. Later, on the afternoon of April 14, as found
above, Clemenson and McClintic learned of Miller's attempt during the lunch period
earlier that day to enlist his fellow employees in the Machinists' Union. The next
day a conference was held on Miller's work record. The following morning
Clemenson met him at the shop, referred to "Those cards you were handing out
Friday," mentioned Miller's various deficiencies, and concluded with the statement,
"This union stunt just tops it off, if you don't like your job here you can go pack up
your tools and go home."
The Respondent's contention that among the reasons for Miller's discharge was
that he used the shop for work on his own automobile, that he loitered on the job,
and that he wrote irritating comments on the drivers' work tickets, is not convincing.
In the light of the above findings, it is apparent that many other employees had used
the shop for work on their own cars, including even Clemenson, without reprimand.
From Miller's timecards it appears that his coffee breaks were never considered
serious enough for him to be docked for such time and Vice President Shoeman
testified that loitering was a common problem in the shop. Finally, the concern
expressed about Miller's comments on the five work tickets appear to be in the
nature of an afterthought. No adverse reference about them was ever made to
Miller either before or at the time of his discharge, and Vice President Shoeman
testified that the five work tickets offered in evidence were the worst examples that
could be found after examining from 50 to 60 in Miller's file.
On the other hand, two charges against Miller's record do, indeed, have sub-
stance. This was the fact that although he had permission from Clemenson to
leave work early on Sunday, April 9, it further appears that this permission from
the foreman did not presume that Miller would perform some of that work the
previous Saturday evening. Secondly, the matter involving McGrean's truck was
obviously of serious concern to the Respondent. The latter, as well as the former,
could very well constitute cause for discharge. Even here, however, it would appear
that under normal circumstances Miller would have been accorded a warning that
his dismissal was imminent.ii
In its brief, the Respondent points out that one court has said that "If an employee
is both inefficient and engaged in union activities, this is a coincidence that does not
destroy the just cause for his discharge." N.L.R.B. v. Birmingham Publishing Com-
pany, 262 F. 2d 2, 4 (C.A. 5). That, of course, is well settled. At the same time
an equally appropriate observation of the Court of Appeals for the Eighth Circuit
should be kept in mind, viz, "A justifiable ground for dismissal is no defense if it is
a pretext and not the moving cause." N.L.R.B. v. Solo Cup Company, 237 F. 2d
521, 525 (C.A. 8). It is not for the Trial Examiner to substitute his judgment for
that of the Respondent as to how the latter should conduct its business. From this
record it appears that in the period immediately prior to his dismissal Miller's work
was subject to criticism and that the Respondent might very well have chosen to
discharge him solely for his mistakes. The question as to whether Miller's discharge
was harsh, unwise, or a reflection on the Respondent's business judgment, however,
is not before the Trial Examiner. The Respondent was free to fire Miller for a good
10 McClintic , however , had given a prehearing affidavit in which he stated that at their
final conference , after a discussion of Miller 's deficiencies , Shoeman had authorized that
employee's dismissal if he failed to improve Thus, in this document McClintic averred
"Shoeman gave us the 0 K. to fire Miller. Shoeman said to go ahead and make some
plans to dismiss Miller of he failed to do h18 work, but st didn't work out that way."
[Emphasis supplied ]
Il In November 1960 Miller had been arrested and found guilty of operating a motor
vehicle while intoxicated . This had resulted in suspension of his driver 's license for
60 days. McClintic testified that customarily the Respondent would discharge an em-
ployee under those circumstances . He testified that in Miller's case, however , Clemenson
wanted him retained because the employee was a good mechanic As a result, Miller was
kept on the payroll, and McClintic even interceded with the State officials to secure a
temporary driving permit for him.
PULLEY FREIGHT LINES, INC. 1751
reason, a bad reason, or no reason, so long as the reason was not, in fact, the em-
ployee's union activities. The only issue with which we are here concerned is
whether the true motivation for Miller's discharge was his mistakes or his union
activity.
In assessing the record and the testimony of the witnesses to determine the reason
for the Respondent's dismissal of this employee the following must be considered:
The incident involving McGrean's truck came to the Respondent's attention on
April 13. On April 14, the Respondent's officials discussed the matter and Miller's
connection with it. That same day, at noon, Miller endeavored to solicit authori-
zation cards for the Machinists from among his fellow mechanics. It was conceded
by McClintic and Clemson that that afternoon they received word of these activities
on Miller's part. On April 15, the Respondent's management again discussed Miller's
work record. The employee was off work that day, but shortly after he reported for
duty on April 16, Clemenson met him at the shop, referred to "Those cards you were
handing out Friday," mentioned Miller's various deficiencies, and concluded with
the statement, "This Union stunt just tops it off, if you don't like your job here you
can go pack up your tools and go home." In McClintic's affidavit, he averred that
during their conferences, Vice President Shoeman said "to go ahead and make some
plans to dismiss Miller if he failed to do his work, but it didn't work out that way."
On this record, it is my conclusion that Miller's lapses had, by April 14, become a
matter of serious concern to the Company and that the Respondent had decided that
the employee might be dismissed but not until he was given one more chance. Shortly
thereafter, however, and on that same day, Miller's solicitation of his coworkers on
behalf of the Machinists came to the Respondent's attention. The following day
another conference was held on Miller's status. The next morning Miller was
abruptly discharged. The remarks of his foreman on this occasion, never denied or
contradicted when the latter was on the stand, cannot be ignored. Clemenson's
comment that "This Union stunt just tops it off" makes it clear that Miller's solici-
tation for the Machinists was the straw that broke the camel's back. On the above
facts, I conclude and find that the real reason for Miller's summary dismissal was
his union activities. Although the Respondent had cause for dissatisfaction with some
of Miller's work, as the Court of Appeals for the Third Circuit observed in a similar
case, "It apparently became intolerable only after he had joined the union." N.L.R.B.
v. Electric City Dyeing Co., 178 F. 2d 980, 983 (CA. 3). By this action the Re-
spondent violated Section 8(a) (3) and (1) of the Act. I further find that Clemen-
son's earlier interrogation of Hamilton as to Miller's union activities, and Hamilton's
own interest in a labor organization, constituted a violation of Section 8(a) (1) of the
Act by the Respondent.12
W. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent engaged in certain unfair labor practices, I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action of the type conventionally ordered in such cases as provided in the Recom-
mended Order below, which I find necessary to remedy and to remove the effects
of the unfair labor practices and to effectuate the policies of the Act. For reasons
set forth in Consolidated Industries, Inc., 108 NLRB 60, 61, and cases there cited, I
shall recommend a broad cease-and-desist order.
Having found that the Respondent discriminatorily discharged Dale R. Miller on
April 16, 1961, I will recommend that the Respondent offer him immediate and
full reinstatement, without prejudice to his seniority or other rights and privileges,
and make him whole for any loss of earnings that he may have suffered by payment
to him of a sum of money equal to that which he normally would have earned from
the aforesaid date of his discharge to the date of Respondent's offer of reinstate-
"This interrogation was neither for a proper purpose nor encompassed by any of the
safeguards that would bring It within the Blue Flash rule Blue Flash Empress, Inc, 109
NLRB 591, 593-594. Petroleum Carrier Corporation of Tampa, Inc., 126 NLRB 1031,
1036-1039; Julius Corn and Sheldon Corn, d/b/a Julius Corn and Co, 129 NLRB 1264,
1271-1272
1752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment, less net earnings during said period. The backpay provided for herein shall
be computed in accordance with the formula stated in F. W. Woolworth Company,
90 NLRB 289.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the Union is a labor organization,
all within the meaning of the Act.
2. By discriminating in regard to the hire and tenure of Dale R. Miller, thereby
discouraging membership in the Union, the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings and conclusions and the entire record, and pursuant
to Section 10(c) of the Act, I hereby issue the following:
RECOMMENDED ORDER
Pulley Freight Lines, Inc., its officers, agents, successors, and assigns, shall.
1. Cease and desist from:
(a) Discouraging membership in District Lodge 118, International Association
of Machinists, AFL-CIO, or any other labor organization of its employees, by
discharging or refusing to reinstate any of its employees or by discriminating in
any other manner in regard to their employment.
(b) Interrogating employees concerning union affiliation or activities in a manner
constituting interference, restraint, or coercion in violation of Section 8(a)(I).
(c) In any other manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which is necessary to effectuate the
policies of the Act:
(a) Offer Dale R. Miller immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of pay he may have suffered by
payment to him of a sum of money equal to that which he normally would have
earned from the date of his discriminatory discharge on April 16, 1961, to the date
of the offer of reinstatement, less his net earnings during said period, said backpay
to be computed on a quarterly basis in the manner established by the Board in
F. W. Woolworth Company, 90 NLRB 289.
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze
the amounts of backpay due under the terms of this order.
• (c) Post at its shop in Des Moines, Iowa, copies of the notice attached hereto
marked "Appendix." Copies of said notice, to be furnished by the Regional Director
for the Eighteenth Region, shall, after being duly signed by the Respondent, be
posted by the Respondent immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for the Eighteenth Region, in writing, within
20 days from the receipt of this Intermediate Report and Recommended Order,
what steps the Respondent has taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in District Lodge 118 , International
Association of Machinists , AFL-CIO, or in any other labor organization of
our employees , or in any other manner discriminate in regard to their hire
or tenure of employment , or any term or condition of their employment.
GUARD SERVICES , INC. 1753
WE WILL offer to Dale R . Miller immediate and full reinstatement to his
former or substantially equivalent position , without prejudice to any seniority
or other rights previously enjoyed , and make him whole for any loss of pay
suffered as a result of the discrimination against him.
WE WILL NOT interrogate employees concerning union affiliation or activities
in a manner constituting interference , restraint, or coercion in violation of
Section 8 (a) (1) of the Act.
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their right to self-organization , to form labor
organizations , to join or assist the above -named Union , or any other labor
organization , to bargain collectively through representatives of their own choos-
ing, to engage in concerted activities for the purposes of collective bargaining
or other mutual aid or protection, or to refrain from any or all such activities.
PULLEY FREIGHT LINES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered , defaced, or covered by any other material.
Guard Services , Inc. and United Plant Guard Workers of America,
Charging Party and Local 221, Building Service Employees
International Union , AFL-CIO, Party to the Contract
Guard Services , Inc. and Amalgamated Plant Guards, Local 235,
UPGWA, Charging Party and Independent Guard Employees
Alliance, Party in Interest . Cases Nos. 13-CA-3720 and 13-CA-
4046. December ?,9, 1961
DECISION AND ORDER
On September 26, 1961, Trial Examiner Charles W. Schneider is-
sued his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had not engaged in the unfair labor practices
alleged in the consolidated complaint and recommending that the com-
plaint be dismissed in its entirety, as set forth in the Intermediate
Report attached hereto. Thereafter, the General Counsel filed excep-
tions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Members Rodgers, Fanning, and Brown].
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 Inter-
mediate Report, the exceptions and the brief, and the entire record in
these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, only to the extent consistent with
the following :
1. As to Case No. 13-CA-4046, the Trial Examiner found that (1)
employee suggestions for the formation of an independent union,
134 NLRB No. 161.