Queen City Transfer, Inc.

National Labor Relations Board - Board Decisions

Apr 19, 1973

203 N.L.R.B. 7 (N.L.R.B. 1973)

QUEEN CITY TRANSFER, INC.
Queen City Transfer, Inc. and International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local No. 17. Cases 27-
CA-3560, 27-CA-3560-2, and 27-CA-3560-3
April 19, 1973
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On January 8, 1973, Administrative Law Judge Leo
F. Lightner issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Queen City Transfer, Inc.,
Englewood, Colorado, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
i In affirming the Administrative Law Judge 's 8(a)(1) finding predicated
on the Respondent 's attempt to secure information concerning the union
activities of employees by requesting Hively to furnish the names of employ-
ees who might approach him relative to the Union, the Board relies on
Struksnes Construction Co, Inc, 165 NLRB 1062 . See also N.L R B. v. Cam-
eo, Inc, 340 F.2d 803 (C.A. 5), cert. denied 382 U.S. 926.
DECISION
STATEMENT OF THE CASE
LEO F. LIGHTNER, Administrative Law Judge: This pro-
ceeding was heard before me in Denver, Colorado, on Octo-
ber 11 and 12, 1972, on the consolidated complaint of
General Counsel, as amended, and the answer, as amended,
of Queen City Transfer, Inc., herein referred to as Respon-
dent.' The complaint alleges violations of Section 8(a)(3)
I A charge was filed in Case 27-CA-3560 on May 16, and a complaint was
issued on July I I A charge was filed in Case 27-CA-3560-2 on July II, and
7
and (1) and Section 2(6) and (7) of the Labor Management
Relations Act, 1947, as amended (61 Stat . 136; 65 Stat. 601;
73 Stat . 519; 29 U.S.C. Sec . 151, et seq.), herein called the
Act. The parties waived closing arguments and a brief filed
by the General Counsel has been carefully considered?
Upon the entire record ,3 and from my observation of the
witnesses , I make the following:
FINDINGS AND CONCLUSIONS
I BUSINESS OF RESPONDENT
Respondent is a Colorado corporation, maintaining its
principal place of business at Englewood, Colorado, where
it is engaged in the operation of a local cartage company.
Respondent, in the course and conduct of its business oper-
ations , annually sells services valued in excess of $50,000,
directly to customers which in turn do in excess of $50,000
worth of business in States other than the State of Colorado.
The complaint alleges, the answer, as amended, admits,
and I find that Respondent is an employer engaged in com-
merce and in activities affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer, as amended, admits,
and I find that International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Local
Union No. 17, herein referred to as the Union, at all times
material herein, has been a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The principal issues raised by the complaint and answer,
as amended, and litigated at the hearing, are whether the
Respondent: (1) engaged in conduct constituting interfer-
ence, restraint, and coercion, violative of Section 8(a)(1), by
Ian Gilbert, on or about June 5, instructing an employee to
give Gilbert the names of all employees who talked to said
employee about the Union; or (2) was discriminatorily mo-
tivated in discharging David Beach, on May 12, or in dis-
charging Thomas Martinez, on July 5, or in discharging
an amended consolidated complaint was issued on July 27 A charge was
filed in Case 27-CA-3560-3 on August 11. On August I1 an order by the
Acting Regional Director was issued , consolidating for hearing Case 27-
RC-4333 with the first two numbered cases. On August 23 an order of
consolidation and an amendment to the complaint was issued in the four
numbered cases. On September 8 by order of the Regional Director Case
27-RC-4333 was severed . The consolidated complaint was amended during
the hearing herein. All dates herein are 1972, except where otherwise indica-
ted
2 At the conclusion of the hearing, the parties were instructed that briefs
should be filed on or before November 9. Respondent' s brief was filed on
November 20. No request for an extension of time , for the filing of said brief,
in conformity with the Board 's Rules and Regulations, Series 8, as amended,
102.42, was filed. On November 24, General Counsel filed a motion to strike
Respondent's brief No opposition thereto has been filed. The motion to
strike is granted.
3 Certain errors in the transcript have been noted and corrected.
203 NLRB No. 4
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Donald AI mstrong, on August 10, thus engaging in conduct
violative of the provisions of Section 8(a)(3) and ( 1) of the
Act.
Respondent , by answer , as amended , denied the commis-
sion of any unfair labor practices . Respondent asserts the
discharges of Beach and Armstrong were for cause , and the
discharge of Martinez was economically motivated.
B. Supervisory Personnel
The complaint alleges, the answer admits, and I find that
Ian Gilbert, president, at all times material herein, was an
agent of Respondent, and a supervisor within the meaning
of Section 2(11) of the Act. While not alleged in the com-
plaint, it is undisputed that Dewey Bakke, dispatcher, was
a supervisor within the meaning of Section 2(l 1) of the Act.
C. Background
Gilbert credibly related that Respondent operates from a
single facility, in Englewood, where it has offices and a
warehouse, including a dock for the loading and unloading
of freight. Respondent's operations cover the Denver met-
ropolitan area, where it picks up and delivers local freight
of all types, except perishables, including shipments arriving
by or dispatched by airline or bus and outgoing mail or
parcel post. Respondent's equipment, at the time of the
hearing, was comprised of three two-ton vans, three gas-
driven tractors, and three Ford Econoline trucks 4 The vans
and econolines are equipped with two-way radio, with the
base station at Respondent's office. The tractors are dis-
patched by telephone. Gilbert related that a driver is given
his first pickup, each morning, and then receives direction
as to the next stop. However, it is apparent that some drivers
had regular stop assignments, as more fully explicated, infra.
Gilbert related Respondent is entirely under his supervi-
sion. However , Bakke , who is dispatcher , sales manager,
and office manager, has complete authority with unlimited
powers, including the right to hire and fire.
Donald Marsh credibly related that, in March 1971, a
group of drivers asked Gilbert about a raise in pay. As a
result, the following Sunday afternoon, Marsh, Ken Wal-
ters, Karl Gregory, Richard Rosen, and Gene Fouts met
with Gilbert, with Fouts acting as spokesman. Fouts ad-
vised Gilbert that the employees wanted to know about
raises and hospitalization insurance. Fouts also advised that
they did not want to join the Union, but would rather talk
to Gilbert and get it ironed out. Rosen, who placed the
meeting as occurring in April or May, related that Gilbert
agreed to give a raise of 25 cents an hour, each 6-month
period thereafter. Gilbert corroborated Rosen, as to the
amount of the raise and period of time for additional raises.5
4 Gilbert related he had acquired one of the tractors in the last 6 or 8
months It is thus obscure whether Respondent's equipment was comprised
of a total of nine vehicles , or a total of eight vehicles in May
5 Rosen asserted Respondent did not provide for hospitalization insurance
which Gilbert had agreed to look into. Gilbert asserted Respondent had
provided insurance It is reasonable to infer from the evidence that the
insurance provided may have provided compensation for lost wages during
hospitalization , as distinguished from compensation for hospital costs The
It is undisputed that Respondent 's complement of full-
time truckdrivers at the end of April and beginning of May
were seven in number .6 In addition , Thomas Martinez was
a regular part-time driver , approximating 26 hours a week.
At an unspecified time , prior to April 22, Rosen related
that he and Armstrong discussed union representation.
They then talked to Beach and Martinez in an effort to
determine if they could obtain sufficient votes to get the
Union in . They then contacted the Union and a meeting
was scheduled for April 22. The meeting was attended by
Rosen , Beach , Marsh , and Armstrong, all of whom execu-
ted union authorization cards on that date , and presented
them to the Union at the meeting . Armstrong obtained the
signature of Thomas Martinez on a union authorization
card on April 27 at Electron Corporation , the location of
Martinez' other job . Armstrong submitted that card to the
Union. Rosen related that he and Armstrong obtained a
union authorization card from Wilp on May 1. Fred T.
Jones , union organizer, identified the six cards and related
they had been submitted to the Union 7
It is undisputed that on May 3 the Union filed a petition
for election , Case 27-RC-4333, and a copy was served on
Respondent on May 4.1
1. Interference, restraint, and coercion
Allen Ross Hively was a truckdnver for Respondent
during various vacation periods, commencing the summer
of 1969, while he was attending the University of Wyoming.
He was reemployed on June 7, but ceased Respondent's
employment on October 6 for reasons which are obscure.
Hively credibly related that a day or two after he was
reemployed, on June 7, he had a conversation with Gilbert,
in Gilbert's office, at approximately 8 a.m. Gilbert advised
him that someone would probably approach him relative to
the Union, and Gilbert requested that Hively advise Gilbert
who it was if someone approached him. One or two days
later, Hively advised Gilbert that he had been approached
relative to the Union by Armstrong and Rosen.'
2. Discharge of Beach-May 12
Beach was initially employed by Respondent on Novem-
ber 29, 1971, and drove a two-ton van truck. His hours were
from 5 or 5:30 a.m. until 5 p.m. or later. Beach related that
he was discharged by Gilbert on May 12 between 6 and 6:30
p.m. At that time , Beach related Gilbert advised that Beach
could not have any more mistakes on the air bills and hand-
ed him two paychecks, one for the prior week and one for
the current week. Beach observed that anyone sent to the
airport would make mistakes, and Gilbert responded that
matter of insurance is of no significance herein
6 Identified as Donald Armstrong, Eugene Fouts, Karl Gregory, Donald
F Marsh, Richard Rosen, Kenneth Walters , and Clarence Wilp. The asser-
tion of Rosen that Wilp was hired 2 or 3 weeks prior to May 1, and remained
ony 2 or 3 weeks after May 1. appears undisputed
Jones acknowledged that he had not received cards signed by Karl Greg-
or Eugene Fouts, or Kenneth Walters
The activities of Gilbert related to the conduct of the election and the
reasonable inferences to be drawn therefrom are explicated infra.
9 Gilbert denied making the request recited by Hively On this conflict, I
credit Hively
QUEEN CITY TRANSFER, INC.
Beach need not worry about it any more. Beach acknowl-
edged the errors related to his failure to note C.O.D.'s and
amounts on two bills of lading, each prepared at the airport
when receiving an incoming shipment and transferring it to
another carrier. One related to a shipment to Pueblo, Colo-
rado, on March 15, and the other a shipment to Loveland,
Colorado, on March 30. The evidence relative to these
transactions is further explicated infra.
Gilbert asserted a variety of reasons for the discharge of
Beach, and proceeded to enumerate them. They follow.
Gilbert related that when an air freight shipment arrives
in Denver, with a destination which does not permit a direct
flight, Respondent transfers the shipment from one airline
to another, or from an airline to a truck line. It is the driver's
responsibility to prepare an air bill reflecting the transfer.
When the air bill of the shipper, or the air freight forwarder,
contains a stamp indicating "collect charges" or "Driver
Collect," or "C.O.D. Charges" similar notations are to be
made on the transfer bill, by the driver. Failure, on the part
of the driver, to so prepare the transfer bill renders Respon-
dent responsible for uncollected fees or charges. Gilbert
credibly related that, in the two instances in question, Beach
failed to make appropriate notations of "C.O.D." charges,
further explicated, infra.
Gilbert asserted that it was the duty of the driver, when
he picks up freight from a customer and takes it to the
airport to note Respondent's charges for the pickup on the
air bill, which is then paid by the airline, on a weekly basis.
Failure to note such charges results in Respondent's not
being paid by the airline. Gilbert asserted that Beach had
failed to make such appropriate notations. Asked to specify
precise delinquencies on the part of Beach , Gilbert re-
sponded there was no way he could designate these individ-
ually, but he knew that it had happened on several
occasions, where Respondent's loss amounted to $3 or
$2.50. Gilbert's explanation of his inability to produce evi-
dence was that once the air bill is signed by the airline it is
returned to Respondent by the driver, and Respondent then
returns it to the shipper. Gilbert asserted these delinquen-
cies occurred over a period of time during Beach's employ-
ment and were brought to his attention.
Another reason for the discharge of Beach, recited by
Gilbert, was the failure of Beach to make a notation when
he signed an air bill on a shipment that was damaged,
resulting in Respondent being responsible for the shipment.
Gilbert asserted such an event occurred on approximately
March 15. Gilbert related that on a manifest, identified as
air bill No. 777764 and 777763, one carton was broken with
no notation on the air bill. Gilbert acknowledged there were
no initials which would identify this delinquency as a delin-
quency of Beach. Gilbert acknowledged these air bills are
not handled by him personally, but are handled by the
dispatcher. Gilbert initially asserted that it was Beach's reg-
ular duty to pick up all this type of freight. Gilbert then
asserted that he had checked the air bill the same night.10
Gilbert acknowledged he did not have the air bill in ques-
1e However, if Beach 's initials were not on the air bill, as the evidence
indicates , it is difficult to perceive how examination of the air bill reflected
this was an error on the part of Beach In addition , it would not have been
necessary for Gilbert to rely on the fact that Beach normally picks up this
type of freight , as he did.
9
tion as it had been forwarded to the air freight forwarder at
the end of a particular week, which is the period for billing.
Gilbert acknowledged that his records did not permit him
to determine which driver failed to perform on a particular
air bill, and it was conceivable that someone else might have
picked up this particular merchandise. Gilbert acknowl-
edged that this delinquency "might" have been brought to
his attention at the time of Beach 's discharge.
Gilbert asserted he received a complaint from a customer
on the mishandling of freight by Beach. He was uncertain
of the time of the complaint, but asserted it was sometime
in May." He identified the customer as Colony Paint. Gil-
bert asserted the paint was not damaged but the container
was. Gilbert related there was a case containing four 1-
gallon cans of paint, of a total value between $20 and $40.
According to Gilbert, the customer called the shipper, ad-
vising that X number of gallons were damaged and the
shipper called Respondent, who agreed to make good. Gil-
bert asserted that when Beach returned to Respondent's
facility he had paint over his truck. Gilbert asserted that he
had talked to the shipper, who explained he had shown
Beach how to load, that Beach decided to load his own way
and one case toppled off and opened up. Gilbert was unable
to relate how long prior to the discharge this event occurred.
Gilbert asserted another reason for the discharge of
Beach was that he received a complaint from the warehouse
superintendent at B. F. Goodrich Company to the effect
that he did not appreciate the driver's attitude and his
mouthing off, with a request that the same driver not be sent
there again. Gilbert asserted this occurred in May. Gilbert
asserted that Beach had been sent to make the pickup.
Gilbert then acknowledged that he could not recall if Beach
had been sent to make that particular pickup. Gilbert then
acknowledged the phone call was to his dispatcher and not
to him.
Gilbert asserted, as another reason for the discharge of
Beach, that drivers are in the habit of making minor repairs
to their truck. Gilbert asserted that Beach was requested to
make a minor repair and responded "that will be the day."
This statement was made to the dispatcher. Gilbert could
not place the time of this event. Gilbert then asserted it was
shortly prior to the discharge, possibly within 2 or 3 days.
Gilbert asserted, as another reason for the discharge of
Beach, that he did not route himself properly, that he would
load his truck, pass a place where he was to make a delivery,
and the delivery would remain on the truck until later in the
day or the following day.
Gilbert then asserted that the deciding factor, relative to
the discharge, was Beach's failure to advance C.O.D.
charges, and the others were contributory.
Beach , who was present during the testimony of Gilbert,
credibly related that none of the alleged errors on his part
were mentioned by Gilbert, as a reason for discharge, on
May 12, except his failure to note the C.O.D. charges on the
air bills, on March 15 and 30.
Beach asserted the paint incident occurred 2 months prior
to the discharge. He explained the paint was on a dolly, four
boxes high, and an employee who worked on the paint dock
11 Gilbert asserted , "Hopefully this would be in the ballpark."
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was pushing, and as Beach was loading the truck, the dolly
hit the lip of the truck and one box was jarred off the top.
He asserted the only caution from Gilbert, at that time, was
that he should be careful.
Beach asserted that he had done minor repairs or mainte-
nance on his truck. He asserted the instance referred to by
Gilbert was a month or 6 weeks prior to his discharge. Beach
related that a tension pully had come off the frame and
fender, and that he did in fact later fix it. Beach asserted that
he had also repaired the lift gate switch on the truck and had
changed spark plugs.
Beach acknowledged being advised of the customer com-
plaint from B. F. Goodrich and asserted that it was 2 or 3
months prior to his discharge. Beach also asserted that he
returned to Goodrich on five or six occasions after the
complaint.
Next set forth is the evidence relative to the complaint
made by All States Air Cargo, Inc., relative to the failure of
Beach to advance C.O.D. charges on the air bills of March
15 and 30.
Gilbert described the phone call as "the straw that broke
the camel's back." Gilbert first asserted the phone call was
the day of the discharge, May 12. He later asserted it was
the day before the discharge May 11. These assertions are
not credible in the light of the following evidence.
William Speirs Stockman is manager of the Newark Busi-
ness Service Center for New Jersey Bell Telephone and
produced records of the billings to the telephone of All
States Air Cargo, Inc., for the period in question. These
records reflect that it was on May 3, at 2:15 p.m., that a
phone call was placed to Respondent's phone number
which is Area Code (303) 781-8272. No other phone call,
during the period in question, to Respondent' s telephone
number from All States appears on this record. Janet Marie
Field is business office supervisor for Mountain Bell Tele-
phone, in Denver, Colorado. She produced the billing rec-
ords, including long distance telephone calls, for the period
in question, for Respondent's telephone number, which she
identified as 781-8272.12 Field credibly related the records,
which are in evidence, did not reflect any long distance
telephone call to the telephone number of All States Air
Cargo, Inc., or any reverse charge from All States Air Car-
go, Inc., charged to Respondent, during the period in ques-
tion.
It appears undisputed, and I have found, supra, that the
Union filed a petition for election on May 3, and Respon-
dent was seived with a copy of May 4.
3. Discharge of Martinez-July 5
It is undisputed that when Martinez reported for work, at
3:30 p.m., on July 5, Gilbert presented him with his pay-
check and advised that he was being laid off "for economic
reasons." Immediately prior thereto, Martinez had been on
vacation, commencing June 16. Respondent asserts the de-
cision to lay off Martinez was made on June 28. It follows
that Martinez had no warning of the possibility of a layoff.
Martinez credibly related that he had a full-time job at
12 The identity of the Respondent 's telephone number is not in question.
Electron Corporation, during the entire period of his em-
ployment by Respondent. Martinez was employed for van-
ous periods during a period of 4-1/2 or 5 years as a truck-
driver. His last period of employment commenced March 1,
1971, and continued until his layoff on July 5. His normal
hours of work commenced at 3:30 p.m., after he finished his
job at Electron, until he finished at approximately 8 or 9
p.m. It is undisputed that when Martinez knew that he
would be working overtime, at Electron, and would be late,
he would call Respondent and advise Gilbert or Bakke ac-
cordingly. On such occasions, someone else would be as-
signed to cover a part or all of Martinez ' normal duties.
Martinez credibly related his regular assignments for Re-
spondent. Upon reporting, he would be advised if there
were other pickups than his regular rounds. His first pickup
was at Bingo King, where he would pick up air or bus
shipments. He would then go to Wilkerson, for air freight,
bus, or local shipments. If there were local deliveries, he
would return to Respondent's dock and deposit the ship-
ments for delivery by other drivers. He would then go to
National Camera to pick up parcel post and deliver it to the
post office in Englewood. He would then go to Mechanex
Corporation to pick up bus or air freight or parcel post. If
there was parcel post he would again go to the post office.
He would then return to Respondent's dock and leave
freight if he had further pickups, or he would await the
arrival of other drivers with air freight or bus freight which
would then be transferred to his truck. On occasion, another
driver, Kenny Walters, would bring in parcel post, and Mar-
tinez would take that to the post office. Martinez identified
the parcel post brought in by Walters as being from Snap-
On-Tools. Similarly, air freight, bus freight, or parcel post
was brought in by other drivers and delivered by Martinez
from Wurlitzer, Pitney-Bowes, and Charles Bruning. At
Respondent's dock, Martinez would then collect the air
freight and bus freight, deliver the air freight to the airport,
then proceed to the Greyhound and Continental Trailways
bus depots to deliver the bus freight. Martinez' rate was
$3.25 an hour, until May, and $3.50 an hour thereafter.
Martinez acknowledged that on July 5 Gilbert advised
him that Gilbert had called each of the customers serviced
by Martinez and advised that he was discontinuing their
pickup and delivery. While Gilbert similarly testified, I do
not credit his recitation in the light of evidence, explicated
infra, that some of these customers were receiving services
from Respondent after July 5.
Martinez credibly related that Gilbert advised that Marti-
nez would be rehired if he was needed. However, it is undis-
puted that after July 5 Respondent had seven full-time
drivers, plus additional full-time temporary help from Han-
dy Andy, Manpower, or similar agencies, and in addition
hired Everett Wright, as a part-time employee. Wright's
duties and hours of work are obscure.
Hively credibly related that he picked up air freight from
Wilkerson during the week preceding his appearance here-
in. Armstrong credibly related that, after the discharge of
Martinez, Marsh and Walters made pickups at Bingo King,
Mechanex, and Wilkerson.13 Marsh, who is still employed,
13 Armstrong related seeing freight with the specified company's names
thereon for identification on Respondent 's dock during said period Arm-
strong related that he delivered this merchandise to the airport and, in the
QUEEN CITY TRANSFER, INC.
credibly related that within the last 2 or 3 months he had
picked up freight from Mechanex, and that Walters and
Rosen did the night delivery work since the discharge of
Martinez.
Gilbert's recitation of the basis underlying his alleged
economic reasons for laying off Martinez is unconvincing
and not credible. Gilbert initially asserted that it was his
counsel who brought to his attention that his payroll was too
high "in proportion to the revenue being produced" and
that he would have to find some way to trim it. He then
corrected his statement to assert it was his accountant who
so advised him. Gilbert asserted he analyzed the overall
operation and concluded that the work performed by Marti-
nez was "not only the least profitable, in fact it was being
performed at a loss, strictly as a customer accommodation."
Gilbert asserted that he contacted all of the customers and
advised they were discontinuing the daily pickup service,
with the exception of National Camera. The credible evi-
dence by the drivers refutes this assertion.
Gilbert asserted he prepared his statement, covering a
12-month period, of the amounts received from customers
whose freight was handled by Martinez. He was then un-
certain if the dates covered were from July 1, 1971, to July
1, 1972, or from June 1 to June 1. Gilbert asserted he com-
puted the amounts from bank deposits reflecting checks
received from each customer. Gilbert then acknowledged
that the service performed by Martinez at Wilkerson was air
freight and that on some air freight shipments Respondent
is paid directly by the airline. Similarly, some bus shipments
result in Respondent being paid by the bus lines, Continen-
tal and Greyhound. Gilbert acknowledged that these in-
volved part of Martinez' work, and the receipts from the
airlines and bus companies are not included in his computa-
tion . 14 Gilbert asserted the total amount received from War-
ner Electric, Snap-On, Mechanex, Bingo King, Wilkerson,
National Camera, Pitney-Bowes, and Bruning was $4,635.15
Gilbert asserted that Martinez' total earnings for a 50-week
period approximated $3,959.97.16 Gilbert explained that the
remaining balance of $967.50 did not include the cost of the
operation for the truck. Gilbert asserted trucking industry
computes the cost of operating a truck as between 35 cents
and 45 cents per mile. There is no evidence of the approxi-
mate mileage driven by Martinez over any given period of
time. Gilbert asserted he had no means of ascertaining the
amounts received from airlines and bus lines, properly com-
putable , to determine the profitability or loss on Martinez'
work, without which such a determination could not be
made.
Respondent acknowledged using temporary help, partic-
middle of July, it was a daily occurrence.
14 The assertion of Gilbert that Mechanex was billed for all of its ship-
ments, as distinguished from Respondent receiving payments from the air-
lines or bus lines, is unconvincing and does not cover shipments by other
companies named who were serviced by Martinez.
15 Gilbert asserted he made a projected estimate on National Camera as
he did not have the account for a full year.
16 Gilbert acknowledged he had computed Martinez ' earnings on the basis
of 38 weeks , but by projection . asserting the balance of the earnings was not
available . Gilbert explained that the additional records may have been at his
accountants . It is patent that no computation was made on any pickups
which may have been made by Martinez at other stops, such as Proctor and
Gambel , Electron , Coleman , Power Engineering, etc.
11
ularly after the discharges of Beach and Armstrong, from
employment agencies such as Handy Andy, Manpower,
and Ready Men. The weekly records of the amounts paid
for these services , admittedly at the rate of $3.50 an hour in
May, and presumably thereafter, commencing March 1970
io and including the week ending September 24, on many
weeks was less than $100 per week, and on only two occa-
sions exceeded $200 in any week prior to the week ending
May 14, when Beach was discharged. During the weeks
Martinez was on vacation, the weeks ending June 25 and 30,
the amounts were $239.31 and $350.83. During the 3-week
period following the discharge of Martinez, the amounts
were: for the week ending July 9, $171.68; for the week
ending July 16, $355.85; and for the week ending July 23,
$300.21. Assuming Martinez averaged 25 hours a week his
weekly pay would have been $87.50.1'
4. Discharge of Armstrong-August 10, 1971
Armstrong was initially employed by Respondent in
March 1971 as a truckdriver. When he reported for work on
August 10 about 11 a.m., he was handed two paychecks by
Gilbert who advised that his services were no longer needed.
Armstrong credibly related that, when he asked for the
reason , Gilbert advised that Armstrong was supposed to
pick up 92 pieces of air freight the prior night at Honeywell,
91 pieces being on one bill and 1 piece on a second bill, a
total of 92 pieces, and that the shipment was 1 piece short.
Armstrong related he responded that he had delivered the
freight to Emery Air Freight, who signed for 92 pieces, and
he could not understand how he could have been short
when Emery signed for it. Armstrong asserted that Gilbert
then advised that Honeywell's freight had been coming up
short in Chicago and Los Angeles, and that Armstrong was
not counting his freight. Armstrong asserted he responded
that he was not going to argue. Armstrong related that he
had no warning of a pending discharge and that Gilbert had
not warned him about any deficiencies relative to his pick-
ing up Honeywell's freight. It appears undisputed that a
good portion of Armstrong's time was spent picking up
freight from Honeywell and delivering it to the airport.'
Gilbert asserted there were three contributory reasons for
the discharge having occurred in a short period of time.
Gilbert asserted that, about a week prior to the discharge,
he received a telephone call from Minneapolis-Honeywell,
whom he described as Respondent's best customer, advising
that Armstrong had loaded and delivered to one of the
airlines too much freight. Gilbert asserted he was advised
this had happened two nights in a row and they had better
be more careful.19 Gilbert then asserted that Armstrong had
left his signed receipts at the airline at the airport, that
Respondent had no proof they had dropped the shipments;
17 Respondent 's computation of his total pay of $3,667 50 would indicate
a weekly average of $73.35
18 Armstrong related that , at the time of discharge , Gilbert asserted that
he had been advised by Honeywell that he was going to have to let the driver
go or lose the account, and that Gilbert had stated that before he would lose
the account he would let the driver go. At variance , Gilbert asserted, "No
customer tells me who to hire and who to fire ." I find it unnecessary to resolve
this conflict.
19 Asked if Honeywell had not checked the outgoing freight , Gilbert re-
sponded , "Honeywell does on occasions have confusion."
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
however, the receipts were recovered the following morning
by one of the other drivers. Gilbert asserted the morning of
discharge he received a telephone call from Fred Smith of
Honeywell, advising that Emery Air Freight had advised
they were one piece short on a shipment delivered to their
dock the prior night, and that the item was still on
Honeywell's dock. According to Gilbert, Smith issued a
blunt warning that if there were any more mistakes Hon-
eywell would get someone else to handle the freight 20
5. Respondent's activity relative to the
election-related matters
It is undisputed that the Union filed a petition for election
on May 3, a copy of which was received by Respondent on
May 4. On May 12 Beach was discharged. On May 15
Respondent filed a list of its then six regular drivers 21 and
denied therein that the Union represented a majority. A
hearing was held on May 18, principally on the issue of
whether Martinez, a part-time employee, was eligible to be
included in the unit. Respondent contended he was not. On
May 26 the Regional Director issued a decision, in which
he found, inter alia, that Martinez was employed on a reg-
ular part-time basis and should be included in the unit. On
June 6 Respondent requested a review of the Regional
Director's Decision, urging that Martinez did not have reg-
ular hours or regular days that he worked. Respondent not-
ed that, if the Regional Director's decision was allowed to
stand, Martinez' vote could determine the election "con-
trary to the desires of the actual employees" of Respondent.
The Board denied the request for review on June 19. Marti-
nez was notified of his layoff on July 5. The election was
held and a tally of ballots was issued on July 6. The tally
of ballots reflects three votes for the Union, two against, and
two challenged ballots. Respondent challenged the ballots
of Beach and Martinez.22
Gilbert acknowledged that he learned that Fouts' ballot
had not arrived in time to be counted. Gilbert, who was
present during the counting of the ballots, called Fouts and
inquired if he had forwarded his ballot. Upon being advised
that Fouts had forwarded his ballot, Gilbert advised Fouts
that it had not been received.
Under date of July 3, by letter, Gilbert advised the Re-
gional Director that Martinez had been terminated for eco-
nomic reasons "as of July 5." On August 10 Armstrong was
discharged. On August 12 the Acting Regional Director
directed that the challenge to Martinez' ballot be overruled
and that his ballot be opened and counted, as he was an
employee on the critical dates. The revised tally of ballots,
issued August 24, reflects four votes cast for petitioner, two
opposed, and one challenged ballot. A certification of repre-
sentative was issued on August 30 by the Regional Director.
20 This assertion of Gilbert was not corroborated The failure of Respon-
dent to call Smith is unexplained In the light of my other findings of inconsis-
tencies, inaccuracies , exaggerations , and implausible recitations by Gilbert,
I do not credit this recitation
21 Armstrong , Fouts, Gregory, Marsh , Rosen , and Walters
22 It is undisputed that this second challenge , relative to Martinez, was by
reason of the fact that Martinez was no longer employed
6. Employee union activity
I have found , section III , c, supra , that Rosen and Arm-
strong initiated the discussions relative to obtaining union
representation and arranged for the meeting held April 22
which was attended by Rosen , Beach , Marsh , and Arm-
strong, all of whom executed union authorization cards on
that date . Subsequently , on April 27, Armstrong obtained
the signature of Martinez , on a union authorization card
and, on May 1, the signature of Wilp. I have also found that
it was Armstrong and Rosen who approached Hively about
June 9 . Pursuant to the request of Gilbert, Hively advised
Gilbert that he was approached by Armstrong and Rosen.
Rosen credibly related that , 1-1 /2 or 2 months prior to the
union meeting of April 22, he was in the office with Gilbert
present when Karl Gregory appeared about 5 or 6 p.m.
Gregory advised that the employees of Colorado Cartage
were giving Beach quite a bit of pressure to join the Union.
Gilbert responded that he did not think that Beach was
going in that direction.23
Rosen asserted that the employees who had signed union
authorization cards decided not to talk to Walters , Fouts,
and Gregory, relative to joining the Union until after the
petition for election had been filed by the Union. According
to Rosen , Beach was then requested to talk to Gregory and
Walters because he worked with them at the airport and saw
them every morning . Beach credibly related that he talked
to Gregory on May 8 , the Monday following Gilbert's re-
ceipt of the copy of the petition for election . Beach asserted
he advised Gregory that it looked as though they might have
the Union at Respondent 's facility . Beach asserted that
Gregory responded "we'll see about that ," laughed, and
walked away.24
Beach asserted that he heard a rumor from Gregory on
May 12 that he would be discharged . This was prior to the
time of his discharge25
7. Other employee errors
General Counsel contends that the errors of Beach, which
are undisputed, relative to the C.O.D. charges were minimal
in comparison to the cost to Respondent of other errors at
other times by other employees, and that the discharge con-
stituted disparate treatment and was discriminatorily moti-
vated. The total cost of the two C.O.D. items, including
freight charges, was $260.10. There is no evidence that Re-
23 1 find it unnecessary to evaluate the assertion of Rosen that Gregory
advised him that Beach was going to be discharged , approximately a week
before the discharge
24 Gregory did not appear as a witness and the recitation of Beach stands
undisputed and is credited
25 Rosen related that , inferentially when he returned to the plant at an
unspecified time on May 12, he learned of the pending discharge of Beach.
Rosen explained that Gregory was supposed to go on vacation the following
week and Rosen was supposed to relieve Gregory on his route When he
returned to the plant , on May 12 poor to being informed of his raise in pay,
he was advised that Gregory was not going on vacation, but was taking
Beach 's job, and Rosen was being placed on Gregory's job on a permanent
basis I am unable to evaluate whether this occurred before or after the
discharge of Beach . Gilbert, however, asserted he used temporary help to
replace Beach It is undisputed that Gilbert did employ more temporary help
immediately following the discharge of Beach as I have found supra . Howev-
er, on the conflict between Rosen and Gilbert, I credit Rosen
QUEEN CITY TRANSFER, INC.
spondent was actually held accountable for this amount.
The evidence of these other events is next set forth.
Rosen credibly related that about a year prior to the
hearing he was carrying a load of high voltage wire and a
cord rolled over the back of his truck as he turned the
corner . When it hit the pavement , it broke the reels. Respon-
dent sent a trailer with a motor to lift it back on the truck.
Rosen was advised , inferentially by Gilbert, that accidents
would happen and that Respondent's insurance would cov-
er the loss. The following day, Rosen was advised by Gilbert
and Bakke that the wire was worth approximately $ 1,500,
and that since no accident was involved insurance did not
cover the loss.
Rosen , who was initially employed in December 1970,
related that when he was first employed he came up short
on a bill of lading , not having enough pieces of freight.
Rosen was advised that it was Respondent 's policy that it
was the driver's responsibility and the driver had to pay for
it. Rosen asserted that approximately half of the cost was
taken out of his paycheck and then they discontinued mak-
ing the deductions.
Rosen related that , after the discharge of Armstrong, he
succeeded to Armstrong 's work at Honeywell. Rosen relat-
ed that , in September, he loaded freight and loaded an extra
piece, which was not discovered until the following morn-
ing, when Continental Airlines discovered it. The entire
shipment had to be returned to Honeywell to ascertain
which was the extra package.
Rosen related that about May 1972 he delivered tires
from Goodrich to D & E Corporation. Rosen was short
one tire. Rosen acknowledged he had loaded the truck and
it was his responsibility to count the tires. Rosen advised
Bakke of this shortage and Bakke asserted he would check
it out . Rosen heard nothing further about it. Rosen de-
scribed a similar shortage of one pulley wheel on a shipment
from Electron to Gates, during the period between October
1971 and April 1972. Rosen reported this to Bakke and
heard nothing further about it.
Rosen related that shortly after he started to work he left
five cartons of a delivery to Honeywell at the United Air-
lines dock. Rosen acknowledged that it was his duty to
count and make certain he had all of the freight provided
for on the air bill. Rosen asserted that upon a later check
the missing cartons were located . Rosen was advised by
Gilbert or Bakke that he would have to be more careful.
Hively asserted he would average two or three mistakes
a week, such as leaving freight on the dock or taking too
much, and that Gilbert or Bakke were aware of these errors.
He described leaving a carton of truck tire tubes at Good-
rich in the summer of 1970. Hively explained that he had
failed to count his freight and had driven away without it.
When he reached the point of delivery he realized he was
short and advised Gilbert or Bakke, who had already been
apprised of the fact that the carton was still on the Goodrich
dock. Hively was directed to return and pick up the missing
carton. Gilbert did advise Hively that he would wind up
paying for such a shortage if it occurred.
Hively related that he had secured a compressor to the
side of his truck on an unspecified date in 1970. As he
turned the corner the compressor, which apparently was
topheavy , turned over, resulting in damage amounting to
13
$500. Hively was advised by Gilbert that it was due to his
mistake and he would have to pay half the cost. Hively
related that he had $25 taken out of his paycheck. Hively
then talked to his father and again talked to Gilbert and
Gilbert refunded the deduction.
Marsh credibly related that he was advised by phone or
radio to make pickups and occasionally forgot them. He
was advised to be more careful by Gilbert and Bakke.
Marsh related that he had signed for freight for which he
could not account or which was lost in transit while under
his control . Marsh recited damage to a box of cosmetics
which fell over in his truck . Marsh asserted he did not have
to pay for the damage. Marsh similarly related breakage to
a carton of wine in transit.
8. Concluding findings
a. Interference, restraint, and coercion
I have found that Hively was reemployed on June 7. On
approximately June 9, Gilbert requested Hively to advise
Gilbert who approached him relative to the Union . Hively
complied , identifying Armstrong and Rosen.
While interrogation of an employee as to union member-
ship , activities , and desires, or that of fellow employees, has
been held not to be per se unlawful , Board decisions require
that there be a legitimate reason for inquiry, which must be
conducted with appropriate safeguards . Blue Flash Express,
109 NLRB 591.
The Board has identified the areas permitting interroga-
tion , i.e., clarification of the Union 's claim to majority status
to determine whether recognition should be extended, and
the investigation of facts concerning issues raised in the
complaint where such interrogation is necessary in prepar-
ing the Employer's defense for the trial of a case . However,
such interrogation requires safeguards which have been
enumerated by the Board . Johnnie's Poultry Company, 146
NLRB 770, 775. None of the safeguards , including volun-
tary participation and assurance of freedom from reprisals,
was taken herein . In addition, the sole purpose of the inter-
rogation was to permit Respondent to ascertain , with cer-
tainty , the proponents of the union movement.
Accordingly , for the reasons stated , I find the interroga-
tion of Hively and the request made by Gilbert constituted
coercion and was violative of the proscriptions of Section
8(a)(1) of the Act.
b. The discharge of Martinez
Respondent sought to advance economic justification for
the layoff of Martinez. Admittedly, Respondent's computa-
tion of income from the work of Martinez failed to include
moneys received from airlines and bus lines and was wholly
inadequate. Respondent's payroll records reflect weekly
variations from a high of $1,917.16 on the week ending April
21, to a low of $1,222.51 for the week ending August 25 26
Respondent 's computations do not support its premise. In
26 The total gross weekly payroll includes a base of $300 paid to Bakke.
It would appear that payments to employment agencies, for temporary help,
were in addition to the payroll amounts
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
addition, I have found that Respondent did not, in fact,
cease servicing all of the accounts serviced by Martinez, as
Gilbert asserted.
General Counsel, in his brief, accurately urges that Re-
spondent vigorously contested Martinez' right to vote in the
upcoming election . At the hearing , on May 18, the inclusion
or exclusion of Martinez was the principal issue and was
raised by Respondent. In its request for review of the Re-
gional Director 's Decision of May 26, Respondent asserted
that Martinez had no regular hours or days that he worked.
This is a misrepresentation of fact. To the contrary, Marti-
nez credibly related that his regular hours of work were
from 3 : 30 p.m . until he finished at 8 or 9 p.m 27 Respondent,
in its request for review, also asserted, "The evidence dis-
closed that other than Martinez, there were six other em-
ployees included in the unit . If the decision of the regional
director is allowed to stand , Martinez' vote could determine
an election contrary to the desires of the actual employees
of Queen City Transfer, Inc. We do not believe this is the
intent or spirit of the Act." It is thus reasonable to infer that
Respondent had knowledge of the actual division of the
sympathies of the six full-time drivers and, as verified by the
tally of ballots and Respondent's telephone call to Fouts,
relative to Fouts' missing ballot , knew that Armstrong,
Marsh, and Rosen were prounion, while Fouts, Gregory,
and Walters were opposed. Thus, in fact, Martinez did rep-
resent the deciding vote.
It was not until after the Board denied the request for
review , on June 19, that Respondent made its decision to
discharge Martinez, according to Gilbert, on June 28. Re-
spondent then challenged Martinez ' ballot on the ground
that he was no longer an employee , since he was discharged
the day before the balloting.
While Gilbert asserted it was on the advice of his accoun-
tant that he decided to dispense with the services of Marti-
nez, it is undisputed that it was Gilbert, not the accountant,
who prepared the computation from Respondent's records
seeking to show that Martinez ' employment was
unprofitable. The incomplete record of Respondent fails to
substantiate this contention . In addition , it appears that,
immediately after the discharge of Martinez, Respondent's
use of temporary employees from employment agencies,
such as Handy Andy, Manpower, and Ready Men, was
substantially increased . Gilbert acknowledged being indig-
nant that Fouts' ballot had not been counted.
Accordingly , for the reasons stated , I find that
Respondent 's asserted economic reasons for the discharge
of Martinez are without substance and the real motivation
27 Respondent, on cross-examination , was able to develop only the follow-
ing variations . During the week ending February 4, Martinez reported 1 hour
late on Monday, Tuesday, and Wednesday, and 1-1/2 hours late on Thurs-
day. During the week ending February 11, Martinez reported one-half hour
late on Monday, 1-1/2 hours late on Thursday, and 2 hours late on Friday
During the week ending February 18, Martinez did not work on Monday,
reported 1-1/4 hours late on Wednesday, and 2 hours late on Thursday and
Friday Dunng the week ending March 3, Martinez reported 1 -1/2 hours late
on Thursday During the week ending March 10, Martinez reported 15
minutes late on Thursday and Fnday. There is an absence of any evidence
of either failure to report or a late report on any subsequent week thereafter
It is thus reasonable to conclude that during the balance of March and until
he went on vacation , on June 16, Martinez performed his duties 5 days a
week.
and moving cause for the discharge was to destroy the
Union's majority. The reason for the discharge was thus
pretextual, and the discharge was discriminatorily motivat-
ed and violative of the provisions of Section 8(a)(3) and (1)
of the Act.
c. Discharge of Armstrong
Armstrong was employed by Respondent for approxi-
mately 1 year and 5 months when he was summarily dis-
charged, when he reported for work on August 10,
purportedly because he had left one piece of freight on the
dock at Honeywell the prior evening . It is undisputed that
Respondent knew of Armstrong 's union activities , having
been advised of them by Hively about June 9.
At the time of discharge, Armstrong was advised by Gil-
bert that Honeywell had advised Gilbert that he would have
to let the driver go or lose the account. Gilbert denied
making this statement , asserting no customer tells me who
to hire and who to let go. I have not credited Gilbert's
assertion relative to the alleged shortage . In making this
credibility finding, I have considered the failure of Respon-
dent to produce Fred Smith, of Honeywell, as a corroborat-
ing witness or to explain such failure . In addition , Hively
credibly related that , in late September , he left Honeywell's
dock with 32 cartons he was not supposed to have. A Hon-
eywell employee came to the airport and advised Hively of
the error . While Hively asserted it was Honeywell 's mistake
and not his , it is obvious that it was incumbent upon him
to check out the freight he had picked up. While Hively was
uncertain if this error came to the attention of Respondent,
it would appear unlikely that Honeywell would have taken
no action, if they felt as strongly as related by Gilbert, at the
time of Armstrong's discharge , a month previous , relative to
the inadequacies of Respondent 's service.
Gilbert asserted other reasons for the discharge of Arm-
strong were that Armstrong had left one piece of freight two
nights in a row at Honeywell and had left signed receipts at
the airline, which were recovered the following morning by
one of the other drivers. Armstrong denied being warned of
any deficiencies and credibly asserted that Emery Air
Freight had signed for the 92 pieces of freight he had deliv-
ered the night prior to his discharge. On this conflict I have
credited Armstrong. General Counsel, in his brief, correctly
urges that the purported reason for the discharge of Arm-
strong involved no actual loss of money by Respondent.
The record is replete with evidence of errors made by
other drivers , at various times , none of which resulted in
discharges , with the exception of Beach . Armstrong's dis-
charge does not stand in isolation , but must be considered
along with the discharge of Martinez , which I have found
was for the purpose of enabling Respondent to remove a
prounion advocate to dissipate the Union's majority.
Accordingly, for the reasons stated, I find that the pur-
ported reasons for the discharge of Armstrong were pretex-
tual, and the real reason and moving cause was Armstrong's
known union activities, which were opposed by Respon-
dent, and said discharge was violative of the provisions of
Section 8(a)(3) and (1) of the Act.
QUEEN CITY TRANSFER, INC. 15
d. The discharge of Beach
Respondent sought to establish that a telephone call from
All States Air Cargo on May 11 or 12, advising that Beach
had failed to advance C.O.D. charges in preparing two air
bills on March 15 and 30, precipitated the discharge. Gener-
al Counsel refuted the assertion of Gilbert by establishing
that the only telephone call to Respondent, from All States
Air Cargo, occurred on May 3. The timing is important. It
is undisputed that Gilbert was apprised of the filing, by the
Union, of the petition for election on May 4. Gilbert then
delayed another 8 days before discharging Beach. It was on
May 8 that Beach approached Gregory relative to the union
activities at Respondent's facility. It is reasonable to infer
that Gilbert learned of Beach 's prounion efforts and sympa-
thies after May 4 if not before.
Gilbert advanced numerous other deficiencies, on the
part of Beach, as a reason for the discharge, asserting they
had all occurred in May. Gilbert related one complaint from
a customer which he described as "Hopefully this would be
in the ballpark." I have credited the recitation of Beach that
a number of these alleged deficiencies occurred in March or
earlier, and none of them were mentioned at the time of
discharge as a reason for the discharge.
In numerous cases the Board and courts have held that
direct knowledge of an employee's union activities is not a
sine qua non for finding that an employee had been dis-
charged because of such activity but may be inferred from
the record as a whole. The small number of employees and
the abruptness and timing of the suspension are among the
factors considered. Wiese Plow Welding Co., Inc., 123
NLRB 616.
The unexplained coincidence of time with respect to the
principal events has been found to be no coincidence at all,
but rather part of a deliberate effort by the management to
scotch the lawful measures of the employees before they
have progressed too far toward fruition. The court held that
if employees were discharged partly because of their partic-
ipation in a campaign to establish a union, and partly be-
cause of some neglect or delinquency, there is nonetheless
a violation of the Act. N.L.R.B. v. Jamestown Sterling Corp.,
211 F.2d 725 (C.A. 2).
The existence of some justifiable ground for discharge or
layoff is no defense if it was not "the moving cause." Wells,
Inc. v. N.L.R.B., 162 F.2d 457, 460 (C.A. 9).
The abruptness of a discharge, and its timing, have been
found to be persuasive evidence as the motivation. N.L.R.B.
v. Montgomery Ward and Co., 242 F.2d 497, 502 (C.A. 2);
N.L.R.B. v. Southern Desk Co., 246 F.2d 53, 54 (C.A. 4).
The Board has found a discharge discriminatorily moti-
vated by reason of the unconvincing character of the rea-
sons adduced to support the discharge. N.L.R.B. v.
Radcliffe, 211 F.2d 309, 314-315 (C.A. 9); N. L. R. B. v. Dant,
207 F.2d 165, 167 (C.A. 9).
The Board has found the discharge discriminatorily moti-
vated by reason of the unconvincing character of the rea-
sons adduced to support the discharge, including the timing
of the discharge. Pacemaker Corporation, 120 NLRB 987,
991; United Fireworks Manufacturing Co., Inc., 118 NLRB
883, 885.
In view of the above facts, including the discharges of
Martinez and Armstrong, I believe and find that
Respondent's purported reasons for the discharge of Beach
were pretextuous and the real reason and moving cause was
the union activities of said employee , and said discharge
constituted discrimination to discourage membership in the
Union and was a violation of the provisions of Section
8(a)(3) and (1) of the Act.
IV. 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 operation of the
Respondent , described in section I, above , have a close,
intimate , 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.
V THE REMEDY
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices, I shall recom-
mend that it cease and desist therefrom, and take certain
affirmative action designed to effectuate the policies of the
Act.
It has been found that Respondent discriminatorily dis-
charged David Beach on May 12, Thomas G. Martinez on
July 5, and A. J. Donald Armstrong on August 10, and has
failed and refused to reinstate each of them. Accordingly,
I recommend that Respondent offer to each immediate and
full reinstatement to the former or substantially equivalent
position of each, without prejudice to seniority or any other
rights or privileges previously enjoyed by each, dismissing,
if necessary, any employees hired since the date of discharge
of each, having less seniority. It is further recommended
that Respondent make each of those named whole for any
loss of pay each may have suffered by reason of the discrim-
ination against each. Said loss of pay shall be based upon
the earnings each would normally have earned from the
date of discharge until the date he is offered reinstatement,
less the net earnings of each during such period. Said back-
pay shall be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90
NLRB 289. The interest on backpay shall be computed in
the manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716.
It is also recommended that Respondent be ordered to
make available to the Board, upon request, payroll and
other records to facilitate checking the amount of earnings
due.
In view of the nature of the unfair labor practices com-
mitted, the commission of similar and other unfair labor
practices reasonably may be anticipated. I shall therefore
recommend that Respondent be ordered to cease and desist
from in any manner infringing upon rights guaranteed to its
employees by Section 7 of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within the meaning of Section 2(2), (6), and (7) of the Act.
2. International Brotherhood of Teamsters , Chauffeurs,
and Warehousemen and Helpers of America, Local No. 17,
is a labor organization within the meaning of Section 2(5)
of the Act.
3. By engaging in the conduct set forth in the section III,
c, 1, to the extent therein found, Respondent has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8 (a)(1) of the Act.
4. By discriminating with respect to the hire and tenure
of employment , and terms and conditions of employment,
of David Beach, Thomas G. Martinez, and A. J. Donald
Armstrong, thereby discouraging the free exercise of rights
guaranteed by Section 7 of the Act, Respondent has en-
gaged in and is engaging in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and con-
clusions of law, upon the entire record in the case, and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, I hereby issue the following recom-
mended:
ORDER 28
Queen City Transfer, Inc., its officers, agents , successors,
and assigns shall:
1. Cease and desist from:
(a) Discouraging membership in International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Local No. 17, or any other union, or
discouraging the free exercise of rights guaranteed by Sec-
tion 7 of the Act, by discriminating against any employee
in regard to his hire or tenure of employment, or any term
or condition of employment.
(b) Interfering with, restraining, or coercing its employ-
ees by interrogating them relative to their union activity or
the union activity of other employees, or attempting thereby
to engage in surveillance of the employees ' union activities,
in a manner violative of provisions of Section 8(a)(1) of the
Act.
(c) In any other manner interfering with, restraining, or
coercing its 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
choosing, and to engage in any other concerted activity for
the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities,
except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as
a condition of employment, as authorized in Section 8(a)(3)
of the Act, as modified by the Labor Management Report-
ing and Disclosure Act of 1959.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer to David Beach , Thomas G. Martinez, and
A. J. Donald Armstrong immediate and full reinstatement
to the former or substantially equivalent position of each,
without prejudice to the seniority or other rights and privi-
leges previously enjoyed by each, and make each whole for
any loss of pay each has suffered by reason of Respondent's
discrimination against each in accordance with the rec-
ommendation set forth in "The Remedy " herein.
(b) Preserve and, upon request , make available to the
Board or its agents , for inspection and reproduction, all
payroll records , social security reports , timecards , personnel
files, and all other records necessary to analyze , compute,
and determine the amount of back pay to which David
Beach , Thomas G. Martinez , and A . J. Donald Armstrong
may be entitled under the terms of this Decision.
(c) Post at its place of business in Englewood , Colorado,
copies of the attached notice marked "Appendix ." 29 Copies
of said notice to be furnished by the Regional Director for
Region 27, after being signed by Respondent' s representa-
tive , shall be posted by the Respondent and maintained by
it for 60 consecutive days thereafter , in conspicuous places,
including each of Respondent 's bulletin boards . Reasonable
steps shall be taken by the Respondent to ensure that said
notices are not altered , defaced , or covered by any other
material.
(d) Notify the Regional Director for Region 27, in writ-
ing, within 20 days from the receipt of this Decision, what
steps it has taken to comply therewith.
IIT IS FURTHER RECOMMENDED that unless Respondent shall,
within 20 days from the date of receipt of this Decision,
notify said Regional Director, in writing, that it will comply
with the foregoing recommended Order , the National Labor
Relations Board issue an order requiring that Respondent
take the action aforesaid.
21 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, recommendations 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
29 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 "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WEWILL NOT discourage membership in International
Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America, Local No. 17, or any
other union, or discourage the free exercise of rights
guaranteed by Section 7 of the Act, by discriminating
against any employee in regard to his hire or tenure of
employment , or any term of condition of employment.
WE WILL NOT interfere with, restrain , or coerce our
employees by interrogating them relative to their union
QUEEN CITY TRANSFER, INC. 17
activity, or the union activity of other employees, or by
engaging in surveillance of employees' activities, in a
manner violative of the provisions of Section 8(a)(1) of
the Act.
WE WILL NOT in any other manner interfere with, re-
strain, 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 rep-
resentatives of their own choosing and to engage in any
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities, except to the
extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as
a condition of employment, as authorized in Section
8(a)(3) of the Act, as modified by the Labor Manage-
ment Reporting and Disclosure Act of 1959.
WE WILL offer to David Beach, Thomas G. Martinez,
and A. J. Donald Armstrong immediate and full rein-
statement to the former or substantially equivalent
position of each, without prejudice to the seniority or
other rights and privileges previously enjoyed by each,
and we will make each whole for any loss of pay each
has suffered by reason of our discrimination against
each.
All of our employees are free to join, or to refrain from
joining, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Local No.
17, or any other labor organization.
Dated By
QUEEN CITY TRANSFER, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, U.S. Custom House, Room 260,
721 19th Street, Denver, Colorado 80202, Telephone 303-
837-3551.