Redway Carriers, Inc./Cardinal Leasing, Inc., A Joint Employer

National Labor Relations Board - Board Decisions

Mar 29, 1985

274 N.L.R.B. 1359 (N.L.R.B. 1985)

REDWAY CARRIERS
Redway Carriers , Inc./Cardinal Leasing , Inc., a
Joint Employer and Fraternal Association of
Special Haulers and United Truckers of Amer-
ica
Redway Carriers , Inc./Cardinal Leasing , Inc., a
Joint Employer and Teamsters , Chauffeurs &
Helpers Local Union No. 43 affiliated with the
International Brotherhood of Teamsters , Chauf-
feurs , Warehousemen & Helpers of America
and Donald R. Sims and Donald Neal
Fraternal Association of Special Haulers and Donald
R. Sims and Redway Carriers , Inc./Cardinal
Leasing, Inc,
Fraternal Association of Special Haulers and
Redway Carriers , Inc./Cardinal Leasing , Inc., a
Joint Employer
Redway Carriers , Inc./Cardinal Leasing, Inc., a
Joint Employer and Teamsters , Chauffeurs &
Helpers Local Union No. 43 , affiliated with the
International Brotherhood of Teamsters, Chauf-
feurs , Warehousemen & Helpers of America,
Petitioner . Cases 30-CA-5479, 30-CA-5629,
30-CA-5783, 30-CA-5714, 30-CA-5931, 30-
C13-1581, 30-CB-1629, and 30-RC-36461
29 March 1985
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 6 May 1981 Administrative Law Judge
Marvin Roth issued the attached decision. The Re-
spondent Employer, the Respondent Union, and
the General Counsel filed exceptions and support-
ing briefs, Teamsters Local 43 filed cross-excep-
tions and a supporting brief, and the Respondent
Employer and Teamsters Local 43 filed answering
briefs.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
i The Fraternal Association of Special Haulers (FASH) was permitted
to intervene in Case 30-RC-3646
2 The Respondent Employer, the Respondent Union, and the General
Counsel have excepted to some of the judge's credibility findings The
Board's established policy is not to overrule an administrative law judge's
credibility resolutions unless the clear preponderance of all the relevant
evidence convinces us that they are incorrect Standard Dry Wall Prod-
ucts, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have
carefully examined the record and find no basis for reversing the find-
ings
3 Absent exceptions, we adopt pro forma the judge's findings on Ob-
jections 5, 7, 11, 14, and 16
Concerning the alleged unlawful assistance to United Truckers of
America (UTA) in violation of Sec 8(a)(2), we agree with the judge's
dismissal on the grounds that the General Counsel failed to give adequate
or timely notice of this allegation and that it was not fairly litigated
Therefore, we do not reach his discussion of the allegation's merits con-
tained in fn 12 of his decision
1359
conclusions3 and to adopt the recommended Order
as modified 4
1. The complaint alleges that the Respondent
Employer violated Section 8(a)(1) of the Act by
threats made to strikers. The judge found that Su-
pervisor Werthen told employees that they would
be replaced and "rehired," rather than "reinstated,"
at the end of the strike. The judge refused to find a
violation, noting that it was in fact the Respondent
Employer's policy to reinstate the strikers. He rea-
The judge found that the Company's failure to question Scott Kutzler
about the 1 September 1979 negotiations warranted the inference that,
had Scott Kutzler testified truthfully about the matter, he would not have
corroborated the testimony of his father Richard Kutzler We find the
adverse inference is improper here because Scott Kutzler was a witness
available to all parties and FASH or the General Counsel could have
called him to testify about these matters Wayne Construction, 259 NLRB
571 fn 1 (1981) This finding, however, does not affect our decision to
affirm the judge's discrediting Richard Kutzler's testimony, because the
other factors the judge cites are sufficient to support his credibility reso-
lutions
We agree with the judge's finding that there has been no conduct by
the Company which would tend to preclude the probability of a fair
rerun election after applying traditional remedies We therefore find it
unnecessary to rely on his citation of Laura Modes Co, 144 NLRB 1592
(1963), and Allou Distributors, 201 NLRB 47 (1973)
We agree with the judge that George Taylor's grievance was not arbi-
trable because it was not signed as the contract required Therefore, we
find it unnecessary to pass on his alternate rationale
We agree with the judge's finding that Jame§ Beagley engaged in con-
certed activity when he complained about the Company's interpretation
of the contractual provision requiring that drivers pay a spotting fee in
certain circumstances NLRB v City Disposal Systems, 104 S Ct 1505
(1984) As we agree with the judge that the Company's unlawful transfer
of Beagley constituted objectionable conduct warranting that the election
be set aside, we need not pass on the judge's holding that the Company's
discharge of Charles LaRoche without a pretermination hearing, as re-
quired by the contract, could not be considered as a basis for setting
aside the election
The judge found that FASH's representative status and collective-bar-
gaining agreement remained in effect after the election We agree with
his conclusion, but we find it unnecessary to rely on his citation and dis-
cussion of Trico Products Corp, 238 NLRB 1306 (1978), and Presbyterian
Hospital, 241 NLRB 996 (1979)
4 In the remedy section of his decision, the judge cited Shea Chemical
Corp, 121 NLRB 1027 (1958) Subsequent to the issuance of his decision,
the Board overruled that case in RCA Del Caribe, 262 NLRB 963 (1982)
We shall modify pars A, 1(b) and A, 2(a) of the recommended Order
accordingly Chairman Dotson and Member Dennis did not participate in
RCA Del Caribe and express no view here on whether that case was cor-
rectly decided Absent three votes to overrule RCA Del Caribe, Chair-
man Dotson and Member Dennis consider themselves institutionally
bound to apply that precedent in this case
We agree with the judge that the Company violated Sec 8(a)(5) by
discharging employees LaRoche and Neal without affording them preter-
mination hearings, as required by the collective-bargaining agreement
However, we find that the judge erred in ordering reinstatement and a
make-whole remedy to redress these violations In Taracorp Industries,
273 NLRB 221 (1984), the Board recently held that a make-whole
remedy is appropriate to remedy a discharge only when the employee is
discharged for union or other protected concerted activity or when the
reason for the discharge is an unfair labor practice, because in those in-
stances the loss of employment stems directly from the conduct that is
the unfair labor practice In Taracorp, the Board concluded that it could
not justify the imposition of a make-whole remedy when an employer's
only violation was the denial of an employee's request for union repre-
sentation at an investigatory interview prior to his discharge Similarly, in
the present case, we find it inappropriate to order make-whole relief
where the employees' discharges were not in themselves unlawful, but
the violations occurred solely in the procedures by which the discharges
were carried out
274 NLRB No. 198
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
soned that the Company did not intentionally mis-
lead its employees and that it is not necessarily an
unfair labor practice "for an employer to make an
inaccurate, incomplete, or misleading statement
concerning the reinstatement rights" of strikers.
We disagree
The strike was an unfair labor practice strike due
to the Respondent Employer's unlawful conduct
and the judge so found Thus, the strikers, on ap-
plication, are entitled to immediate reinstatement
even if they have been replaced. Therefore, any in-
dication to the striking employees that they could
not return to work at any time they chose violates
Section 8(a)(1). We find that the comments con-
veyed such an indication and violated Section
8(a)(1) 5
2. On three separate occasions General Manager
Kutzler told various union representatives and em-
ployees that "he would stick the contract up their
asses" and on one of these occasions said good
faith was "out the window." The judge refused to
find these statements unlawful, reasoning that
Kutzler was merely expressing his view that many
of the contract's provisions benefited the Company
and that he intended to enforce these rights to the
fullest. We cannot agree.
On another occasion Kutzler stated that he was
going to "live up to the strict letter of the con-
tract." While such a statement is lawful, we fail to
see how a threat to "stick the contract up their
asses" can be viewed as a synonymous remark. The
judge himself recognized that Kutzler' s language
was not so limited, but rather was "all-encompass-
ing." Furthermore, in light of the remark that good
faith was "out the window," Kutzler's statement
cannot amount to an intent to enforce a contract
right in accordance with the statute' s requirements.
Consequently, we find that Kutzler's comments
constitute an unlawful threat that the contract
would not be administered in good faith.
3 The judge made a specific finding that the Re-
spondent Employer's 3 August 1979 memorandum
to employee Sims contained an implied threat of
withdrawal of recognition and refusal to negotiate
a contract with FASH in violation of Section
8(a)(5) and (1) of the Act. He failed, however, to
provide a remedy for this violation. We agree with
his finding and shall correct the Conclusions of
Law and recommended Order accordingly.
AMENDED CONCLUSIONS OF LAW
Insert the following as paragraphs 7 and 8 and
renumber the present paragraphs accordingly.
s See Queen Mary Restaurants v NLRB, 560 F 2d 403 (9th Cir 1977),
Cal-Pacific Furniture Mfg Co, 228 NLRB 1337 , 1344 (1977)
"7. By threatening to withdraw recognition from
FASH and by threatening to refuse to negotiate a
contract with FASH, the Company violated Sec-
tion 8(a)(5) and (1)
"8. By threatening to replace unfair labor prac-
tice strikers and by threatening that the contract
would not be administered in good faith, the Com-
pany violated Section 8(a)(1)."
ORDER
A. The National Labor Relations Board orders
that the Respondent, Redway Carriers, Inc , Cardi-
nal Leasing, Inc., Kenosha, Wisconsin, and Plym-
outh, Indiana, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing or refusing to forward to Fraternal
Association of Special Haulers (FASH) FASH
dues and initiation fees withheld from employee
paychecks, to contribute to the Fraternal Associa-
tion of Special Haulers Pension Fund, to grant va-
cation time pay, to process grievances, or to con-
duct hearings before discharging employees, all as
required by its collective-bargaining contract with
FASH.
(b) Refusing to meet and confer with FASH
concerning complaints about employee wages and
working conditions, refusing to permit FASH to
administer its contract, or generally refusing to bar-
gain in good faith with FASH as the exclusive bar-
gaining representative in the following appropriate
unit:
All drivers, mechanics, spotters, shop helpers
and owner-operators employed by the Compa-
ny at or out of its Kenosha, Wisconsin and
Plymouth, Indiana terminals, excluding all
office clerical employees, dispatchers, manage-
rial employees, professional employees, guards
and supervisors as defined in the Act.
(c) Discouraging or encouraging membership in
FASH, United Truckers of America, or any other
labor organization, by transferring or laying off
employees, or in any other manner discriminating
against them with regard to their hire or tenure of
employment or any other term or condition of em-
ployment, except to the extent that membership
may be required by an agreement as a condition of
employment, as authorized in Section 8(a)(3) of the
National Labor Relations Act
(d) Threatening to withdraw recognition from
FASH and to refuse to negotiate a contract with
FASH.
(e) Threatening to replace unfair labor practice
strikers and threatening that a contract would not
be administered in good faith.
REDWAY CARRIERS
(f) In any like or related manner interfering with,
restraining, or coercing employees in the exercise
of the rights guaranteed them by Section 7 of the
Act
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the
Act.
(a) Maintain and give effect to its collective-bar-
gaining contract with FASH effective from 1 Sep-
tember 1979 through 31 August 1981, permit
FASH to administer the contract, and generally
bargain in good faith with FASH unless and until
the National Labor Relations Board, following a
valid election, shall certify that another labor orga-
nization is the exclusive collective-bargaining rep-
resentative of the employees in the appropriate
unit, or that no labor organization has been select-
ed as the representative of such employees, and, if
an understanding is reached, embody the under-
standing in a signed agreement.
(b) Process the grievances of Syd Griner, David
Roy, and Robert Simmons which were filed in
June and in August 1979.
(c) Remit to FASH the FASH dues and initi-
ation fees deducted from employees' paychecks
since 13 December 1979, with interest, in the
manner set forth in the section of this decision enti-
tled "The Remedy."
(d) Transmit the contributions owed to the Fra-
ternal Association of Special Haulers Pension
Fund, as provided in the contract, including a slid-
ing scale of company and employee payments
based on gross truck revenue, and reimburse its
employees, with interest, for any contributions
which they may have made to the fund in lieu of
company contributions, all in the manner set forth
in the section of this decision entitled "The
Remedy."
(e) Grant vacation time pay to its employees pro-
vided in the contract, retroactive to 1 January
1980, with interest, in the manner set forth in the
section of this decision entitled "The Remedy."
(f) Offer James Beagley reassignment to the
Short-Haul Board in accordance with his seniority
rights under the contract, and make him whole for
his losses, if any, caused by his discriminatory
transfer, in the manner set forth in the section of
this decision entitled "The Remedy."
(g) Jointly and severally with Respondent
FASH, make whole Donald Sims for any loss he
may have suffered as a result of the discrimination
against him, in the manner set forth in the section
of this decision entitled "The Remedy."
(h) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
1361
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay and reimbursement due.
(i) Post at its offices and at its terminals in Keno-
sha, Wisconsin, and Plymouth, Indiana, copies of
the attached notice marked "Appendix A "6 Copies
of the notice, on forms provided by the Regional
Director for Region 30, after being signed by the
Respondent Company's authorized representative,
shall be posted by the Respondent Company imme-
diately upon receipt and maintained for 60 consec-
utive days in conspicuous places including all
places where notices to employees are customarily
posted Reasonable steps shall be taken by the Re-
spondent Company to ensure that the notices are
not altered, defaced, or covered by any other mate-
rial.
0) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
B. Respondent Fraternal Association of Special
Haulers, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Causing or attempting to cause Redway Car-
riers, Inc./Cardinal Leasing, Inc., a joint employer,
to discriminate against any of its employees in vio-
lation of Section 8(a)(3) of the Act.
(b) Threatening employees with violence or
bodily injury if they refuse to join its strike, or en-
gaging in acts of violence against employees who
refuse to join its strike.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action designed
to effectuate the purposes and policies of the Act.
(a) Jointly and severally with Respondent Com-
pany, make whole Donald Sims for any loss he
may have suffered by reason of the discrimination
against him, in the manner set forth in the section
of this decision entitled "The Remedy."
(b) Post at its office copies of the attached notice
marked "Appendix B."7 Copies of the notice, on
forms provided by the Regional Director for
Region 30, after being signed by the Respondent
FASH's authorized representative, shall be posted
by Respondent FASH immediately upon receipt
and maintained for 60 consecutive days in conspic-
8 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board
' See fn 6, above
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
uous places including all places where notices to
members are customarily posted Reasonable steps
shall be taken by Respondent FASH to ensure that
the notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the election held in
Case 30-RC-3646 is set aside and the case is re-
manded to the Regional Director for Region 30 to
conduct a new election when he deems the circum-
stances permit the free choice of a bargaining rep-
resentative.
[Direction of Second Election omitted from pub-
lication ]
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, loin, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT fail or refuse to forward to Fra-
ternal Association of Special Haulers (FASH), dues
and initiation fees withheld from employee pay-
checks, to contribute to the Fraternal Association
of Special Haulers Pension Fund, to grant vacation
time pay, to process grievances, or to conduct
hearings before discharging employees, all as re-
quired by our collective-bargaining contract with
FASH.
WE WILL NOT refuse to meet and confer with
FASH concerning complaints about employee
wages and working conditions, refuse to permit
FASH to administer its contract, or generally
refuse to bargain in good faith with FASH as the
exclusive bargaining representative in the following
appropriate unit:
All drivers, mechanics, spotters, shop helpers
and owner-operators employed by us at our
Kenosha, Wisconsin and Plymouth, Indiana
terminals, excluding all office clerical employ-
ees, dispatchers, managerial employees, profes-
sional employees, guards and supervisors as
defined in the Act.
WE WILL NOT transfer, lay off, or otherwise dis-
criminate against you for supporting FASH or any
other union.
WE WILL NOT threaten to withdraw recognition
from FASH or refuse to negotiate a contract with
FASH.
WE WILL NOT threaten to replace unfair labor
practice strikers or threaten that a contract would
not be administered in good faith.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL maintain and give effect to our collec-
tive-bargaining contract with FASH effective 1
September 1979 through 31 August 1981, permit
FASH to administer that contract, and generally
bargain in good faith with FASH unless and until
the National Labor Relations Board, following a
valid election, shall certify that another labor orga-
nization is the collective-bargaining representative
of the employees in the appropriate unit, or that no
labor organization has been selected as the repre-
sentative of such employees, and, if an understand-
ing is reached, embody the understanding in a
signed agreement.
WE WILL process the grievances of Syd Griner,
David Roy, and Robert Simmons which were filed
in June and August 1979.
WE WILL remit to FASH the FASH dues and
initiation fees deducted from employee paychecks
since 13 December 1979, with interest
WE WILL transmit the contributions owed to the
Fraternal Association of Special Haulers Pension
Fund as provided in the contract, including a slid-
ing scale of company and employee payments
based on gross truck revenue, and reimburse our
employees, with interest, for any contributions
which they may have made to the Fund in lieu of
company contributions.
WE WILL grant vacation pay to our employees
as provided in the contract, retroactive to 1 Janu-
ary 1980, with interest.
WE WILL offer James Beagley reassignment to
the Short-Haul Board in accordance with his se-
niority rights under the contract, and make him
whole for his losses, if any, caused by his discrimi-
natory transfer, with interest
WE WILL jointly and severally with FASH make
whole Donald Sims for any loss he may have suf-
REDWAY CARRIERS
fered as a result of the discrimination against him,
with interest.
REDWAY CARRIERS, INC./CARDINAL
LEASING, INC.
APPENDIX B
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT cause or attempt to cause Redway
Carriers, Inc /Cardinal Leasing, Inc., a joint em-
ployer, to discriminate against any of its employees
in violation of Section 8(a)(3) of the Act.
WE WILL NOT threaten employees with violence
or bodily injury, if they refuse to join our strike, or
engage in acts of violence against employees who
refuse to join our strike
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL jointly and severally with Redway/-
Cardinal make whole Donald Sims for any loss he
may have suffered by reason of the discrimination
against him, with interest.
FRATERNAL ASSOCIATION OF SPE-
CIAL HAULERS
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge These
consolidated cases were heard on June 23 through 27,
July 21 through 25, August 11 through 15 and 19
through 22 and September 2, 1980. As the cases present
procedural as well as substantive questions of fact and
law, it is necessary at the outset to set forth in some
detail the procedural developments in the unfair labor
practice and representation cases which culminated in
the present hearing
1363
On September 10, 1979,1 United Truckers of America
(UTA) (herein UTA) filed a petition for a Board-con-
ducted election among the employees of Redway (Case
30-RC-3619) The petition was signed by UTA Chair-
man Donald Sims. On September 13 the Regional Direc-
tor for Region 30 issued a notice of hearing on the peti-
tion. However, on September 17 the Regional Director
issued an order withdrawing notice of representation
hearing and dismissing petition In his order, the Region-
al Director stated that FASH, the intervenor, presented
evidence that it entered into a valid collective-bargaining
agreement with Redway about September 1, that investi-
gation of the matter established that the agreement was
valid and therefore constituted a bar to any election, and
that consequently there was no question concerning rep-
resentation None of the parties (UTA, Redway, and
FASH) sought Board review of the Regional Director's
order.
On October 17 UTA, by Sims, filed another petition
for a Board-conducted election, this time naming Cardi-
nal as the employer (Case 30-RC-3637) However, on
October 22 Teamsters filed a petition for an election
among the employees of Redway (Case 30-RC-3646)
By telegram dated October 26, the Regional Director in-
formed the parties that "having fully considered this
matter, I find that a question concerning representation
exists within the meaning of Section 9(c) of the Act."
The Regional Director further informed the parties that
he was revoking the dismissal of the first petition, con-
solidating the three pending representation proceedings,
and scheduling them for a single hearing
On October 29, FASH filed an unfair labor practice
charge (Case 30-CA-5479) alleging that Redway was
violating Sections 8(a)(1), (2), (5), and 8(d) of the Nation-
al Labor Relations Act. The charge alleged in substance
that Redway was offering benefits to its employees to
induce them to abandon FASH, failing to implement and
adhere to its contract with FASH, failing and refusing to
arbitrate contract disputes, seeking to force FASH to
agree to alter the contract terms regarding wages, threat-
ening employees with discharge or other reprisal for sup-
porting FASH, interrogating employees concerning
union activity and attitude, denying FASH access to em-
ployees while granting access to other unions, and domi-
nating and assisting UTA. The same day (October 29)
FASH requested in writing the Regional Director to
proceed with the consolidated representation proceeding,
notwithstanding the unfair labor practice charge, with
the understanding that "the Board will not entertain ob-
jections to the election in this matter based on conduct
occurring prior to the filing of the petition " On Novem-
ber 26 FASH filed a first amended charge in Case 30-
CA-5479, restating the allegations of the first charge and
further alleging that Redway was violating Section
8(a)(3) of the Act by discriminating against its employees
(unnamed) because of their union and other protected
concerted activities.
All dates herein refer to the period from August 1, 1979, through
July 31, 1980, unless otherwise indicated, except in see iV,C, where
dates refer to 1979 unless otherwise indicated
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The hearing in the consolidated representation pro-
ceedings commenced on December 12 before Hearing
Officer Larry Brennan The parties stipulated, inter alia,
as to an appropriate unit, that Redway and Cardinal con-
stituted joint employers under the Act. The issues pre-
sented were (1) the alleged contract bar to an election,
including the questions of whether FASH and the Com-
pany were parties to a current contract, and if so, wheth-
er that contract contained defects which precluded a
contract bar defense, and (2) the status of UTA as a
labor organization, including FASH's allegation that
Sims was a supervisor or agent of the Company. Prelimi-
nary testimony was taken with respect to the first issue,
and the evidentiary record was completed with respect
to the second issue. However, on the afternoon of De-
cember 13 the hearing was adjourned, sine die, when the
parties arrived at an agreement which allowed for a
prompt election. The parties (the Company, FASH,
Teamsters, and UTA), agreed on the record, in sum, that
an election would be conducted on the following basis
(I) withdrawal of the UTA election petitions, (2) with-
drawal by FASH of all allegations of the charge in Case
30-CA-5479 except the alleged discriminatory transfer of
James Beagley, (3) withdrawal of a charge by Sims in
Case 30-CB-1523 (the substance of which was that
FASH allegedly threatened discharge of employees for
nonpayment of dues and expulsion from membership of
employees who signed a certain petition), and (4) renew-
al of FASH's request to proceed with an election. The
agreement arrived at by the parties was embodied in sev-
eral documents which were executed on December 13 or
within the next few days. The Company, Teamsters, and
FASH executed a Stipulation for Certification Upon
Consent Election in Case 30-RC-3646, which was ap-
proved by the Acting Regional Director on December
17 Also on December 17 the Acting Regional Director
issued an order severing the representation cases and ap-
proving the withdrawl of the petitions in Cases 30-RC-
3619 and 30-RC-3637 as requested by UTA at the hear-
ing The Acting Regional Director also approved a writ-
ten request by FASH for "withdrawal of all allegations
of the charge in [Case 30-CA-5479], with the sole excep-
tion of the 8(a)(3) allegations with respect to the job
transfer of employee James Beagley, which allegation re-
mains outstanding " The request did not specify whether
made with or without prejudice FASH also requested in
writing that the Regional Director proceed with the
election, notwithstanding the "single 8(a)(3) charge . . .
which remains outstanding." On December 31 the Gen-
eral Counsel issued a complaint in Case 30-CA-5479, al-
leging that since about October 29, the Company violat-
ed Section 8(a)(1) and (3) of the Act by failing and refus-
ing to assign Beagley to short haul "piggy back" loads.
This was the only unfair labor practice alleged in the
complaint
Pursuant to the Stipulation for Certification Upon
Consent Election, an election by secret ballot was con-
ducted on January 9, 10, 11, and 12 among the employ-
ees of the Company in the agreed-upon appropriate bar-
gaining unit.2 The tally of ballots showed that of ap-
2 The unit consists of
proximately 69 eligible voters, 38 cast ballots for Team-
sters, 19 for FASH, and 2 for neither Union There were
four challenged ballots which were insufficient in
number to affect the results of the election On January
21 FASH filed timely objections to the election (Objec-
tions 1-18). On March 28 FASH withdrew all objections
except Objections 5, 7, 13, 14, and 16.3
In the meantime, on January 25, FASH filed a new
unfair labor practice charge (Case 30-CA-5629) alleging
that Redway was violating Sections 8(a)(1), (2), (3), (5),
and 8(d) of the Act The charge reiterated the allegations
of the charge in Case 30-CA-5479, and further alleged
that the Company discriminatorily discharged employee
Charles LaRoche and refused to make payments to
FASH's pension program and forward checked off union
dues as required by their contract, engaged in surveil-
lance of a union meeting on December 22, and improper-
ly made payments into "Redway Driver's Fund." On
March 18, the General Counsel issued a consolidated
complain in Cases 30-CA-5479 and 30-CA-5629, alleg-
ing that FASH was the collective-bargaining representa-
tive of the Company's employees, and that the Company
engaged in acts and conduct in violation of Section
8(a)(1), (3), and (5) of the Act. The gravamen of the
complaint was that the Company, in derogation of its
bargaining obligations, unilaterally imposed a $15 spot-
ting fee on employees and failed and refused to forward
checked off union dues and to make payments into
FASH's pension program; and further, that the Company
engaged in unlawful interrogation and threats about
August 11 and October 16. The complaint also reiterated
the alleged discriminatory conduct involving James
Beagley. On March 28, the Acting Regional Director
issued his Report on Objections in Case 30-RC-3646,
and an order directing a hearing on FASH Objections 5,
7, 11, 13, 14, and 16 (the other objections having been
withdrawn) The objections which were set down for
hearing allege in substance , as objectionable conduct: (5)
imposition of the spotting fee, (7) interrogation, (11) tell-
ing some drivers they would not be paid according to
the contract, (13) the Beagley transfer, (14) failure to
make pension payments, and (16) failure to forward dues.
The Regional Director found that the objections were
basically the allegations of the consolidated complaint,
and raised substantial and material issues which could
best be resolved through the medium of a hearing By
his order the Acting Regional Director consolidated the
unfair labor practice and the representation cases for the
purposes of hearing, ruling, and decision by an adminis-
All drivers , mechanics, spotters , shop helpers and owner - operators
employed by the Company at or out of its Kenosha, Wisconsin and
Plymouth , Indiana terminals, excluding all office clerical employees,
dispatchers , managerial employees , professional employees , guards
and supervisors as defined in the Act
3 At the outset of the present hearing, FASH requested that I consider
all of the 18 original objections I denied the request on the grounds that
I had no authority to consider any objections not referred for hearing by
the Regional Director , and because FASH gave no advance notice to the
other parties of its intention to revive the withdrawn objections Howev-
er, withdrawn Objections 1, 2, 8, and 18 involved the same subject matter
as allegations of the consolidated complaint I reserved decision on the
question of whether these, as well as other allegations of the complaint,
could be used as a basis for setting aside the election
REDWAY CARRIERS
trative law judge. The Acting Regional Director also or-
dered that after decision by an administrative law judge,
the representation case be transferred to and continued
before the Board
In the meantime, on March 14 Donald Sims filed
unfair labor practice charges (Cases 30-CA-5714 and 30-
CB-1581) alleging respectively that the Company violat-
ed Section 8(a)(1), (2), and (3) of the Act and that FASH
violated Section 8(b)(1)(A) and (2) of the Act Sims
charged in sum, that the Company discriminatorily laid
him off at the behest of FASH, that the Company un-
lawfully assisted FASH, and that FASH engaged in vari-
ous other unlawful or improper actions. On April 21,
Teamsters filed an unfair labor practice charge (Case 30-
CA-5774) alleging that the Company was violating Sec-
tion 8(a)(1), (2), (3), and (5) of the Act Teamsters
charged that by the various acts and conduct alleged in
the prior charges the Company was engaging in a cam-
paign to frustrate the self-organizational wishes of its em-
ployees On April 28, FASH filed another charge against
the Company (Case 30-CA-5783) alleging that the Com-
pany was violating Section 8(a)(1), (3), and (5) of the
Act This charge substantially consisted of a summary of
prior allegations, with the deletion of alleged unlawful
assistance to other unions, and the addition of an allega-
tion that the Company discriminatorily terminated
Charles LaRoche and other unnamed employees
On May 21, the General Counsel issued an order con-
solidating cases and consolidated complaint and notice of
hearing in all of the outstanding cases described above
(Cases 30-CA-5479, 30-CA-5629, 30-CA-5714, 30-CA-
5774, 30-CA-5783, 30-CB-1581, and 30-RC-3646). The
new consolidated complaint encompassed the allegations
of the prior complaints, together with additional allega-
tions. The consolidated complaint may be considered as
the basic complaint for purposes of this proceeding al-
though, as will be discussed, the complaint was subse-
quently amended prior to and during the hearing. The
complaint alleges, in sum, that from September 1976 until
the January 1980 election, "if not also . to date"
FASH has been the exclusive representative of the em-
ployees in the appropriate bargaining unit, and that since
about September 1 Redway and FASH have been parties
to a collective-bargaining contract covering those em-
ployees, which contract is effective by its terms until
August 31, 1981. The gravamen of the complaint is that
Redway has engaged in unlawful conduct which broadly
speaking falls into three categories The first category
consists of alleged violations which constitute repudi-
ation of the contract, or unilateral changes in wages,
hours, and other working conditions of unit employees,
or both These items will be specifically discussed at ap-
propriate points in this decision The second category
consists of alleged violations of Section 8(a)(1) and (3)
directed against the Company's employees, specifically,
interrogation, threats of denial of contract wages or ben-
efits, and the I3eagley matter. The third category consists
of the alleged discriminatory layoff of Sims, and the
complaint further alleges that FASH violated Section
8(b)(2) of the Act by causing the layoff in reprisal for
Sims' anti-FASH activities The complaint prays for the
issuance of a remedial bargaining order in favor of
1365
FASH if it is found that FASH and the Company are
parties to a valid contract, and if the objections to the
election are found to be meritorious. Alternatively, the
complaint prays that if the objections are found without
merit or not to have effected the result of the election,
then Teamsters should be certified as bargaining repre-
sentative Prior to issuance of the complaint, the General
Counsel informed each respective charging party that all
allegations of unlawful company assistance to UTA or
any other labor organization would be dismissed unless
withdrawn. In fact, all such allegations were withdrawn,
and the Company was so informed by the Regional Di-
rector
In its answer to the March 18 complaint, the Company
admitted that FASH enjoyed representative status from
September 1976 "until on or about September 1979, at
which time a question of representation arose " Howev-
er, in its answer to the subsequent consolidated com-
plaint, the Company denied the allegations of representa-
tive status, contract, and alleged unfair labor practices,
and affirmatively contended that (1) the second category
of alleged violations are not actionable because they are
based on charges which were withdrawn "with preju-
dice" on December 13, (2) there has been no contract in
effect between the Company and FASH since September
1978, and (3) in any event, the alleged contract contains
an unlawful union-security clause (FASH, in its answer,
also denied that it acted unlawfully with respect to
Sims) In its brief, the Company contends that on the
basis of evidence adduced at the hearing, but which was
not fully known to the Company prior to the hearing,
FASH lost the support of a majority of the unit employ-
ees in June 1979 Teamsters, in its opening argument and
in its brief, takes the position that assuming FASH en-
joyed a valid representational status at some point in
time (which it questions), FASH nevertheless lost the
support of a majority of employees as early as June 1979.
The basic substantive issues in this case thus concern (1)
the alleged representative status of FASH, and (2) the al-
leged collective-bargaining contract between the Compa-
ny and FASH
As will be discussed, FASH commenced a strike and
picketing against the Company on May 3, which strike
was in effect at the time of this hearing. On May 6
Redway filed an unfair labor practice charge (Case 30-
CB-1615), alleging that FASH was violating Section
8(b)(1)(A) of the Act by threats and acts of violence. By
letter dated May 8, the Company requested withdrawal
of the charge because the "strike activity has ceased
completely at the present time " However, on May 29
the Company filed a new and similar charge (Case 30-
CB-1629) On June 9, the General Counsel issued a com-
plaint in that case, alleging in sum that FASH was vio-
lating Section 8(b)(1)(A) by threats and acts of violence
in connection with its strike against Redway That com-
plaint was consolidated with the already outstanding
consolidated proceeding At the outset of the present
hearing, FASH informed me that it did not wish to con-
test the allegations in Case 30-CB-1629, and consented
to the entry of findings, conclusions, and an order based
on the complaint Accordingly, I granted summary judg-
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment on the complaint. Appropriate findings of fact and
conclusions of law will be set forth at later points in this
decision
On June 9 the General Counsel amended the outstand-
ing consolidated complaint to further allege that about
May 13, the Company violated Section 8(a)(1) and (3) by
discriminatorily discharging employee Alan Broyles be-
cause of his union and other protected concerted activi-
ties. At the outset of this hearing (June 23), the General
Counsel, having given notice to the Company by letter
dated June 17, moved and was granted leave to further
amend the complaint to allege that the Company violat-
ed Section 8(a)(1) and (3) by discriminatorily discharging
employee Eldon Shumaker about May 2, and violated
Section 8(a)(1) by acts of interrogation about December
22 and April 21. On July 15, while the hearing was in
recess, employee Donald Neal filed a charge (Case 30-
CA-5931) alleging that the Company discriminatorily
discharged him about July 7 At the resumption of the
hearing on July 21, the General Counsel moved to
amend the consolidated complaint to allege in sum that:
(1) the Company violated Section 8(a)(1), (3), (4), and (5)
by discriminatorily discharging Neal without notice to or
holding a hearing with FASH, because of his union ac-
tivities and/or because he gave testimony under the Act,
(2) violated Section 8(a)(1) in December or early January
by threatening that an employee would no longer be able
to haul short board, (3) in May, by threatening to dis-
charge an employee because of union or other protected
concerted activities, and (4) violated Section 8(a)(1) and
(2) by illegally assisting and supporting UTA and Team-
sters On July 15 the General Counsel notified the parties
of its intention to move to amend the complaint as to
items I and 2 above, however, the General Counsel gave
no advance notice as to items 3 and 4 I granted the
General Counsel's motion with respect to items 1, 2, and
3 In light of applicable Board precedent and in order to
avoid the possibility of further, additional litigation,4 I
permitted the amendment as to item 4, subject to my
final decision as to whether the matter was properly liti-
gable, At this time Donald Sims, who was about to be
called as a witness for the the General Counsel, request-
ed and was granted leave to represent himself in this pro-
ceeding. At the further resumption of the hearing on
August 11, the General Counsel moved to amend the
complaint to allege certain threats by the Company in
September, and to amend the prayer for relief in certain
respects.5 I allowed the amendments, finding that the al-
leged threat simply reflected the General Counsel's inter-
pretation of certain alleged statements which were al-
ready the subject of testimony, and at least arguably per-
tinent to the 8(a)(5) allegations, and that the proposed
amendments to the prayer for relief involved questions of
remedy which would fall within my allowable discretion,
whether or not pleaded.6
4 See Maremont Corp, 249 NLRB 216 (1980)
5 On June 27, July 21, and August II the General Counsel was also
granted leave to amend the complaint to allege the supervisory status of
certain individuals All of the above described amendments were request-
ed and allowed prior to the completion of the General Counsel' s case-in-
chief
9 See, e g, Ortiz Funeral Home Corp, 250 NLRB 730 (1980)
All parties were afforded full opportunity to partici-
pate in the present hearing, to present relevant evidence,
to argue orally, and to file briefs. The General Counsel,
Teamsters, and the Company each filed briefs On the
entire record in this case,7 and from my observation of
the demeanor of the witnesses, and having considered
the briefs and arguments of the parties, I make the fol-
lowing
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Redway, a Wisconsin corporation, is and has been at
all times material engaged in trucking operations as a
contract and common carrier from its headquarters and
terminal in Kenosha, Wisconsin (Kenosha terminal), and
its terminal in Plymouth, Indiana (Plymouth terminal) In
the operation of its business, Redway annually provides
services valued in excess of $50,000 directly to customers
located outside of Wisconsin. Cardinal, an Illinois corpo-
ration, is and has been at all times material engaged in
the business of leasing trucking equipment and providing
drivers to its customers, principal among which is
Redway, from its headquarters and place of business lo-
cated in Kenosha, Wisconsin. In the operation of its busi-
ness, Cardinal annually purchases and receives goods at
its Kenosha facility valued in excess of $50,000 directly
from points located outside of Wisconsin. It is undis-
puted, and I so find, that Redway and Cardinal, i e, the
Company together constitute a joint employer with re-
spect to the operation of their Kenosha and Plymouth lo-
cations, and together constitute an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
FASH and Teamsters are and have been at all times
material, each a labor organization within the meaning of
Section 2(5) of the Act. As will be discussed, UTA has
been defunct since December 13, but was, during the
period from September 8 to December 13, a labor orga-
nization within the meaning of Section 2(5) of the Act.
Ill. THE BARGAINING UNIT INVOLVED
It is undisputed, and I so find, that the following em-
ployees constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Section 9(b)
of the Act-
All drivers, mechanics, spotters, shop helpers and
owner-operators employed by the Company at or
out of its Kenosha, Wisconsin and Plymouth, Indi-
r The General Counsel and the Company have each filed unopposed
motions to correct the official transcript of proceedings, which motions
are contained in footnotes to their respective briefs (G C Br at fn 14,
Co Br at fns 12 and 41 ) 1 am granting the motions In addition, I have
determined that there are additional errors in the transcript which are ob-
vious (on their face or in context), minor, or do not affect the substance
of any testimony, and which warrant correction (The correction at p
1437 was directed at the hearing) The result of my determinations is con-
tained in the Order correcting transcript which is annexed to this deci-
sion
REDWAY CARRIERS
ana terminals , excluding all office clerical employ-
ees, dispatchers , managerial employees , professional
employees , guards and supervisors as defined in the
Act.
IV THE ALLEGED UNFAIR LABOR PRACTICES AND
THE OBJECTIONS TO THE ELECTION
A Preliminary Statement of the Issues: Allegations
and Objections Which May Properly be Considered on
Their Merits in This Proceeding
A threshold question presented in this case concerns
the extent to which the complaint allegations and objec-
tions to the election may properly be considered on their
merits in this proceeding This question in turn subdi-
vides into three areas of consideration, namely (1) the
impact of prior withdrawal of allegations, (2) the propri-
ety of the amendments to the consolidated complaint
against the Company, and (3) the Company's argument
that the manner of the General Counsel's investigation
was prejudicial to a fair hearing in this case.
With regard to the first matter, employees Donald
Sims and Edward Shore, who were present at the repre-
sentation hearing on December 12 and 13, testified in the
present proceeding without contradiction concerning
certain off-the-record statements by FASH organizer and
business representative Paul Dietsch at that hearing Sims
and Shore testified in sum that Dietsch proposed that
FASH would withdraw its unfair labor practice charges,
except for the Beagley transfer, and agree to an election,
if UTA withdrew its election petitions. According to
Sims and Shore, Dietsch explained that he was only wor-
ried about UTA, because FASH had never lost an elec-
tion to the Teamsters Sims testified that he agreed to the
proposal because the employees wanted an election.
(Sims, as indicated, was UTA chairman Shore was a
principal Teamsters activist among the employees.) I
credit the testimony of Sims and Shore concerning the
statements made by Dietsch. Indeed, even without their
testimony it is evident from the sequence of withdrawals
and statements on the record that a quid pro quo was in-
volved However, as the hearing officer indicated on the
record, that quid pro quo was for the purpose of estab-
lishing a basis on which an election could be conducted.
This agreed basis did not constitute nor did it purport to
constitute a settlement or comparable resolution of the
unfair labor practice charges. Therefore (aside from con-
siderations of timeliness under Sec. 10(b) of the Act,
which will be discussed), nothing in law or Board policy
precluded FASH from subsequently filing new or
amended charges based on the withdrawn allegations, or
the General Counsel from subsequently issuing an unfair
labor practice complaint based on those allegations As
one court has stated, "a withdrawn charge is no charge
at all " NLRB v. Central Power & Light Co., 425 F 2d
1318, 1321 (5th Cir 1970).8 Indeed, FASH did not even
8 Teamsters reliance on Fernandes Supermarket, 203 NLRB 568 (1973)
(Br 14), is misplaced In Fernandes , the Board declined to proceed on the
merits of an unfair labor practice case where the record indicated that
the charging union had repeatedly filed and withdrawn charges over a
period of more than a year , in an evident effort to impede and delay the
Board's processes and thereby frustrate any resolution of a rival union's
1367
withdraw its original charge (Case 30-CA-5479). Rather,
FASH simply withdrew allegations of that charge, leav-
ing intact and pending its allegation that the Company
violated Section 8 (a)(1) and (3) by discriminatorily trans-
ferring James Beagley Therefore, no question of timeli-
ness under Section 10(b) is presented because the Gener-
al Counsel could properly issue a complaint or amended
complaint containing allegations which were closely re-
lated to the Beagley allegation , including , e g , the al-
leged violations of Section 8(a)(5) of the Act. Even if the
original charge were totally withdrawn , no 10(b) prob-
lem would be presented , because none of the alleged
unfair labor practices in this case occurred more than 6
months prior to January 25, when FASH filed its new
charge (Case 30-CA-5629). Thereafter , the time limita-
tion of Section 10(b) did not preclude the General Coun-
sel from issuing a complaint based on the outstanding
charge, or asserting allegations related thereto, including
the allegations of unlawful assistance to UTA or Team-
sters, notwithstanding that such allegations of unlawful
assistance were withdrawn from all outstanding charges
See NLRB v. Jay Co., 227 F 2d 416, 418 (9th Cir. 1954).9
However , FASH 's objections to the electton and the
complaint allegations insofar as they constitute alleged
grounds for setting aside the election are governed by a
different standard . In Ellicott Machine Corp, 54 NLRB
732, 735 (1944), the Board held as follows:
We are of the opinion that a labor organization
which has filed a petition seeking a certification of
representatives and which has also filed charges of
unfair labor practices against an employer, should
not be permitted to proceed on the petition after
withdrawing its charges without prejudice, and
then , in the event it loses at a subsequent election,
be permitted to use the subject matter of the
charges as objections to the election. Accordingly,
in the instant case and in future cases where charges
are withdrawn without prejudice to facilitate the
determination of a representation proceeding, we
shall treat the withdrawal of the charges without
prejudice as an automatic waiver by the petitioning
union of the right to use the subject matter of those
charges as a basis for objections to the elec-
tion.
Ellicott is an old case, when measured by the standards
of labor law, and references to Ellicott in subsequent de-
representative status In the present case , FASH (acting against its own
self-interest , as matters turned out) withdrew the outstanding allegations
in order to allow for a prompt election
9 I do not agree with the General Counsel 's implied assertion made
during the hearing , that an unfair labor practice charge, even if subse-
quently withdrawn , operates to toll the 10 (b) limitation period , and that
therefore the General Counsel may, consistently with Sec 10 (b), revive a
withdrawn charge at any time Specifically, the General Counsel's reli-
ance on Silver Bakery Inc, 150 NLRB 421 (1964 ), enf denied 351 F 2d 37
(1st Cir 1965 ) is erroneous As indicated Silver Bakery was reversed by a
court of appeals Subsequently , in Koppers Co, 163 NLRB 517 (1967), the
Board accepted the principle that a withdrawn charge cannot be reinstat-
ed more than 6 months after the date of the alleged unfair labor practices
However , for the reasons discussed above , I find that Sec 10(b) presents
no bar to any of the allegations in the present case
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cisions are almost nonexistent. However, Ellicott has
never been expressly overruled. Moreover, I find noth-
ing in subsequent Board statements of law or policy
which either impliedly overrules or is inconsistent with
Ellicott, or which places in question the viability of the
Ellicott policy. Therefore, Ellicott must be deemed as
constituting current Board policy. Although Ellicott in-
volved the withdrawal of charges, whereas the present
case involved the partial withdrawal of FASH's original
charge, I find no basis in logic or the realities of labor
relations for distinguishing away Ellicott on this ground
Therefore, it follows that those objections and allegations
of the present complaint, which constitute the same sub-
ject matter as the allegations of the charge in Case 30-
CA-5479 which were withdrawn prior to the election,
cannot be used as a basis for setting aside the election.
The alleged unlawful transfer of Beagley, which coin-
cides with FASH's Objection 13, may be considered as a
basis for setting aside the election In Great Atlantic &
Pacific Tea Co, 101 NLRB 1118, 1120-21 (1952), the
Board held that "whether or not charges have been filed,
the Board has decided to consider on the merits any al-
leged interference which occurs or has occurred after
either (1) the execution by the parties of a consent elec-
tion agreement or a stipulation for Certification Upon
Consent Election, or (2) the date of issuance by the Re-
gional Director for a notice of hearing, as the case may
be, no waivers will be required with respect to charges
based thereon " The Board added that it "will of course
continue to adhere to its present policy in cases where
there are pending charges alleging violation of Section
8(a)(2) and 8(a)(5) of the Act." (Id., fn. 6.) Subsequently,
in F W Woolworth Co, 109 NLRB 1446 (1954), the
Board revised the cutoff date by utilizing as that date the
issuance of the Board's Decision and Direction of Elec-
tion Following enactment of the Landrum-Griffin
amendments to the Act and Board delegation of deci-
sional authority in representation cases to its Regional
Directors, the Board again revised the cutoff date, hold-
ing that "the date of filing of the petition . . . should be
the cutoff time in considering alleged objectionable con-
duct in contested cases " Ideal Electric & Mfg. Co, 134
NLRB 1275, 1278 (1961) The cutoff date has not since
been altered However, although the Board altered the
cutoff date in Woolworth and again in Ideal Electric nei-
ther decision abandoned or revised the rationale of Great
Atlantic & Pacific Tea Co., namely, that employees and
parties to an election should not be estopped from filing
objections to the election on the basis of conduct of
which they had knowledge prior to the election, but
failed to file charges or otherwise protest to the Board
until the election was over In sum, the Board adopted a
policy which would enable the nonoffending party or
parties to proceed with an election, knowing that in the
event of an adverse result, they nevertheless could object
to the election on the basis of unlawful interference, re-
gardless of prior knowledge of such conduct and regard-
less of whether unfair labor practice charges were filed.
Great Atlantic & Pacific Tea Co., supra, 101 NLRB at
1120 Recently, in Ed Chandler Ford, Inc., 241 NLRB
1201 (1979), the Board indicated the continuing viability
of this policy In Chandler, a representation proceeding,
the Board rejected the employer's argument that the pe-
titioning union, by filing a request to proceed, waived its
right to file objections to the election based on the same
conduct as was alleged to violate Section 8(a)(1) and (3)
in an unfair labor practice charge. The Board declared
It is well settled that a petitioner's knowledge prior
to the election of an employer's improper preelec-
tion conduct does not preclude the petitioner from
asserting such conduct as grounds for objecting to
the conduct of the election, and a request to pro-
ceed does not constitute a waiver of that right
As authority for this proposition, the Board cited Great
Atlantic & Pacific Tea Co , supra, Aiello Dairy Farms, 110
NLRB 1365, 1370 (1954) (with respect to unfair labor
practices not involving 8(a)(5) violations), and Bernel
Foam Products, 146 NLRB 1277, 1279 (1964) (In Bernel
Foam, the Board reconsidered and rejected the policy
first enunciated in Aiello, that a union which has knowl-
edge of an employer's alleged unlawful refusal to bargain
must make a timely choice either to go to an election or
to establish its representative status in an unfair labor
practice proceeding) In all of the cases cited in Chan-
dler, the petitioning union filed its unfair labor practice
charge after the election. However, Chandler indicated
that the policy enunciated in Great Atlantic & Pacific Tea
Co, was also applicable when the charge was filed prior
to the election, notwithstanding that the charging party
also filed a request to^ proceed. This does not mean that
there is no mechanism whereby, by agreement or other-
wise, a party may waive alleged unlawful or improper
conduct as a basis for objecting to the election. As indi-
cated, Ellicott Machine Corp. provides one means where-
by such waiver can be effectuated In Connecticut Found-
ry Co., 247 NLRB 1514 (1980), the Board affirmed the
decision of an administrative law judge holding, in es-
sence, that a party may effectively waive its right to
object to an election on the basis of unremedied unlawful
conduct by executing an express statement to that effect
Specifically, in Connecticut Foundry, the employer filed a
written document with the Board's Regional Office, stat-
ing in pertinent part that certain unremedied unfair labor
practices by the petitioning union "may not constitute
grounds upon which the Board may set aside the elec-
tion " (247 NLRB at 1516.) The administrative law judge
held that this document constituted a "specific waiver"
rather than a "conventional request to proceed," and he
distinguished Chandler, supra, in this regard (247 NLRB
at 1521, 1522).
Returning to the present case, FASH's written request
to proceed with the election although the pending Beag-
ley charge did not under the policy discussed in Chan-
dler, constitute a waiver of that allegation as grounds for
objecting to the election As the Chandler decision issued
in April 1979 it may fairly be inferred that the parties
were aware of that fact at the time of the representation
hearing Moreover, as the Beagley matter did not in-
volve alleged 8(a)(2) or 8(a)(5) conduct, the Board's Re-
gional Director could properly honor FASH's request to
proceed without Board approval NLRB Field Manual,
Section 11730.4. Additionally, FASH could properly
REDWAY CARRIERS
object to the election on the basis of alleged unlawful or
improper conduct occurring between December 13 and
the completion of the election Thirdly, and consistent
with the Board's policies described above, FASH could
also object to the election on the basis of any conduct
which was not covered by the withdrawn allegations of
the charge in Case 30-CA-5479, and which occurred
around September 10, when UTA filed its first election
petition Monroe Tube Co., 220 NLRB 302 (1975), revd.
on other grounds 545 F.2d 1320 (2d Cir 1976). Although
UTA's first petition was dismissed on September 17, and
no petition was de facto on file until October 17, when
FASH filed its second petition, the Regional Director
subsequently revoked his dismissal and consolidated all
three pending representation proceedings. Therefore, the
critical period should be deemed as commencing with
the filing of the first of these three petitions, i e., as of
September 10 I shall reserve determination of what if
any conduct falls into the second and third categories
until after I have completed my findings on the merits
with respect to those unfair labor practices alleged by
the General Counsel to have been committed by the
Company prior to the election
This brings me to the second area of consideration,
namely, the propriety of the General Counsel's amend-
ments to the consolidated complaint. I adhere to my rul-
ings at the hearing except as qualified herein with respect
to the alleged unlawful assistance to FASH and Team-
sters. Specifically, I adhere to my rulings that the Com-
pany was given adequate notice and a fair opportunity to
meet the substantive amendments which were allowed
on June 23 and items 1 and 2 (as previously indicated) on
July 21 For the reasons indicated, I adhere to my rul-
ings allowing the amendments on August 11. With
regard to item 3 (as previously noted) which was al-
lowed on July 21 (consolidated complaint, C(12)), I find
upon consideration of the record that testimony concern-
ing these alleged threats would in any event have been
admissible as evidence with respect to the alleged unlaw-
ful termination of Eldon Shumaker. Therefore, the Com-
pany was not prejudiced by the General Counsel's failure
to give advance notice of the proposed amendment This
leaves item 4 of July 15 (consolidated complaint, C(13)),
which I allowed conditionally, subject to my final deci-
sion as to its litigability.
On July 21, at the outset of the second week of hear-
ing, the General Counsel without any advance notice to
the parties submitted in writing a proposed amendment
to the consolidated complaint, alleging that. "Since on or
about September 1978 the employer has illegally assisted
and supported UTA in violation of Section 8(a)(1) and
(2) of the Act " During the course of oral argument on
whether the amendment should be allowed, the General
Counsel further requested that the amendment be amend-
ed in two substantial respects, namely, that "1978" be
changed to "1979," and that the amendment should refer
to UTA and Teamsters. When asked when a determina-
tion had been made that this allegation was meritorious,
the General Counsel indicated that the determination
was made on June 27, i.e., at the close of the first week
of hearing, after the General Counsel had an opportunity
to examine certain subpoenaed documents When asked
1369
why the parties had not been given advance notice of
the proposed amendment, the General Counsel indicated
that it wished to make sure that testimony adduced at
the hearing did not differ from that adduced during the
Regional Office investigation of the case As of July 21,
the General Counsel was about to call Donald Sims as a
witness The General Counsel asserted that he was "not
pointing any finger at anyone," but an administrative law
judge is not required to be naive, even with respect to
representations by the General Counsel It is evident that
the General Counsel intentionally withheld notice of its
intent to amend the complaint, until it was about to call
Sims as a witness, in order to keep Sims in the dark as to
the General Counsel's true plans Sims, in a sense, wears
two hats in this proceeding He is an alleged discrimina-
tee, but he was also the principal figure in UTA, one of
the allegedly assisted unions It is evident that the Gener-
al Counsel wished to keep Sims under the false impres-
sion that their interests were substantially aligned, where-
as the General Counsel regarded the alleged discrimina-
tion against Sims as a minor aspect-of this case, but in-
tended to show (or at least allege) that Sims was a will-
ing or unwilling conduit for the Company's alleged un-
lawful campaign to undermine FASH. This is not a valid
reason for withholding advance notice to the parties of
this substantial amendment to the complaint All of the
parties, including Sims, the principal figure in UTA,
were entitled to such notice. The problem was com-
pounded by the General Counsel's failure to specify the
times, places, and manner in which the Company alleg-
edly gave unlawful assistance and support to UTA With
respect to Teamsters, the General Counsel asserted in
sum that this allegation did not involve consideration of
any new or different factual assertions. Rather, the Gen-
eral Counsel's theory was that all of the Company's un-
lawful conduct, insofar as directed against FASH, e.g,
repudiation of contract, tended to assist Teamsters How-
ever, the General Counsel did not so limit its allegation
with respect to UTA The General Counsel asserted in
sum that the Company furnished UTA with financial and
other assistance, but failed to indicate the nature of the
other assistance, or the date, place, and manner of the al-
leged financial assistance. However, at a later point in
the hearing, on August 14, the General Counsel ex-
pressed the opinion that Sims was an agent of the Com-
pany, but declined to request that the complaint be
amended to allege such agency As a result of the vague,
shifting, and untimely positions taken by the General
Counsel, the Company has been placed in a position
where it has been forced to speculate as to what matters
are alleged to constitute unlawful support and assistance
to UTA (see Co Br 96-125).
As indicated, I allowed the proposed amendment to
the complaint on a tentative basis, subject to my ultimate
determination as to whether the matter was properly liti-
gable. I adhere to my ruling allowing the amendment
with respect to alleged unlawful assistance and support
to Teamsters, which presents no allegations of conduct
not otherwise alleged as unlawful in the complaint. The
General Counsel's theory is tenable as a matter of law.
Independent violations of the Act, e g, discriminatory
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharges which violate Section 8(a)(3) and (1) of the
Act, may be found also violative of Section 8(a)(2) if the
evidence indicates that such violations tend to encourage
membership in a rival union . See Hartz Mountain Corp.,
228 NLRB 492 (1977), enfd. sub nom. Distributive Work-
ers District 65 v. NLRB, 593 F.2d 1155 (D.C. Cir. 1978).
However, such a finding cannot be completely divorced
from consideration of whether the employer preferred
the rival organization, or engaged in acts or statements
which manifested such a preference. Thus, in Hartz
Mountain, the evidence indicated that the Section 8(a)(3)
discharges which the Board also found to be violative of
Section 8(a)(2), comprised parts of a pattern of conduct
whereby the employer sought to force its employees to
join the rival union (228 NLRB at 538). In sum, viola-
tions of Section 8(a)(1), (3), and (5) of the Act, directed
against a particular labor organization, are not ipso facto
violative of Section 8(a)(2) simply because a rival union
is simultaneously seeking to organize or represent the
employees 10
The present record is devoid of substantial and credi-
ble evidence that the Company favored Teamsters, or in-
tended to assist Teamsters by those actions alleged as
unfair labor practices. In April 1979, FASH, after con-
sultation and agreement with the Company, filed an
unfair labor practice charge against Teamsters (Case 30-
CB-1445), alleging that Teamsters was violating Section
8(b)(1)(A) of the Act by threatening company employees
with violence in connection with Teamsters picketing at
American Motors Corporation. Company Vice President
and General Manager Richard Kutzler willingly fur-
nished the Board's Regional Office with an affidavit in
support of the charge. Although the matter arguably oc-
curred before the Company allegedly developed animus
toward FASH and its adherents, the Company did not
thereafter (or indeed at any time) indicate to its employ-
ees that it preferred Teamsters as their bargaining repre-
sentative During the election campaign, i.e , the period
between the representation hearing and the election, the
Company issued a letter to its employees which in es-
sence constituted a declaration of neutrality. Donald
i ° Sec 11730 4 of the Board's Field Manual provides in pertinent part
that a request to proceed will not be honored in any case where the
charge alleges 8(a)(2) or (5) "conduct," except upon specific Board au-
thorization Thus, it is the nature of the alleged unlawful conduct, rather
than the statutory section designation on the charge, which determines
the applicability of this provision If one were to apply the General
Counsel's theory to its logical conclusion, it would follow that the Re-
gional Director had no authority to proceed with the election without
Board authorization, because the outstanding charge with respect to the
Beagley transfer involved 8(a)(2) conduct It would also follow, under
Sec 102 8 of the Board's Rules and Regulations, that in any case involv-
ing alleged employer unfair labor practices directed against activity by or
on behalf of a particular labor organization a rival organization would
have standing to intervene as a party in the proceeding simply by virtue
of the fact that it was attempting to organize or claim representative
status for the employees involved, and therefore was presumably " assist-
ed" by the employer's conduct Such result would be contrary to settled
Board policy See Strydet Incorp, 156 NLRB 1185, 1188 In 2 (1966)
The General Counsel's reliance on the Midwest Piping line of cases (Br
75) is misplaced In those cases the thrust of the employer's conduct is
directed at the allegedly assisted union, i e , the employer violates Sec
8(a)(2) by engaging in collective bargaining with the union, notwithstand-
ing the existence of a question concerning representation in the present
case, the thrust of the Employer's conduct, according to the General
Counsel's allegations, is directed against FASH
Neal, one of the alleged discriminatees to this case, testi-
fied without contradiction that shortly after the election
Kutzler told him that the election did not go the way
Kutzler wanted, because he wanted "nonunion." I credit
Neal's testimony in this regard, and I find that Kutzler's
statement tends to negate any inference that the unlawful
conduct attributed to the Company violated Section
8(a)(1) or (2) of the Act by encouraging membership in
Teamsters. 11 Therefore, I am recommending that this al-
legation of the complaint be dismissed.
With respect to the alleged unlawful assistance to
UTA, I find that the General Counsel failed to give ade-
quate or timely notice of this allegation or its particulars,
that the allegation was not fairly litigated, and that there-
fore the allegation cannot be used as the basis for any
unfair labor practice finding against the Company. As
there are no pending objections to the election which
cover this subject matter, and all allegations of FASH's
charge in Case 30-CA-5479 were withdrawn as a condi-
tion for an election, no finding of unlawful assistance can
be used as a basis for setting aside the election. However,
I shall, at appropriate points in this decision, discuss the
genesis of UTA insofar as such evidence is relevant to
the remaining allegations of the complaints 12
11 The General Counsel introduced evidence of other company state-
ments which arguably indicated the Company 's attitude toward the elec-
tion and Teamsters Neal testified that at the representation hearing
Kutzler told him in sum that the fact that FASH agreed to an election
showed that FASH did not have a contract Several weeks after the elec-
tion the Company issued a letter to its employees which stated, in es-
sence , that the employees apparently preferred Teamsters but the matter
was not finally resolved, and in the meantime the Company would follow
past practices Kutzler testified that he issued this letter in response to
inquiries from drivers as to when the Company would negotiate with
Teamsters Driver Marlene Graham , who was presented as a General
Counsel witness and identified herself as a FASH adherent , testified that
in March or April 1980 , Company Safety Director William Broyles (un-
disputedly a supervisor) told her that it would be good to have a miles
and hours contract (as distinguished from the percentage based contract
allegedly executed between FASH and the Company) and that Teamsters
would be the Union when the Board certified them Broyles, who was
hospitalized during this hearing because of a heart attack , was not pre-
sented as a witness in this proceeding I find that these various statements
simply reflected the Company 's position that it had no contract with
FASH , and (with respect to the postelection statements ) that Teamsters
had apparently been selected as the employees ' bargaining representative,
but did not demonstrate an employer preference for Teamsters
12 Also, I shall at this point make alternative findings with respect to
the only aspect of this allegation which is discussed in the General Coun-
sel's brief and unequivocally alleged therein as constituting unlawful as-
sistance to UTA (Br 73-74) A pertinent allegation could be defined as
follows that about September 29, the Company knowingly deducted
from its employees ' paychecks and forwarded to UTA or its agents
money to be used for the purpose of paying UTA's legal expenses The
facts insofar as material to this allegation are undisputed Shortly after the
first UTA election petition was dismissed (September 17), Donald Sims
circulated a petition among his fellow employees which clearly indicated
that its purpose was to raise funds for legal fees for UTA in order to
oppose FASH as the representative of the Company ' s employees The
petition was signed by 29 employees (including Donald Neal and William
Burton the present FASH steward) during the period from September 21
through 25 Each employee pledged the amount of $10 Sims presented
the signed petition to Company Secretary -Treasurer Laura Gale Kutzler
(Richard Kutzler's wife ), who issued a check to Sims in the amount of
$290 Thereafter the Company, on the basis of the petition, compensated
itself by deducting the sum of $10 from the paycheck of each signatory
employee In the past , the Company routinely honored authorizations for
deduction from employee paychecks for various purposes , e g , donations
Continued
REDWAY CARRIERS
As to the third area of consideration, i.e., the Compa-
ny's argument that the manner of the General Counsel's
investigation was prejudicial to a fair hearing in this case,
the Court of Appeals for the Seventh Circuit has stated
(277 F.2d at 1214), with respect to an injunction pro-
ceeding under Section 10(1) of the Act
It is our opinion that the scope, conduct or extent
of the preliminary investigation are not matters rele-
vant to or material for consideration on the issue to
be adjudicated on hearing of a Section 10(1) peti-
tion, i.e., whether reasonable cause exists to believe
a violation has occurred. This issue is to be resolved
by the evidence adduced by the Board in open
court to sustain its petition The Board is enjoined
to make a preliminary investigation but the adequa-
cy of the investigation is judicially tested only by
the Board's subsequent ability to sustain its initial
determination that the investigation disclosed rea-
sonable cause to believe that a violation occurred
Ross M. Madden v. Hod Carriers Local 41, 277 F 2d 688
(7th Cir 1960), cert. denied 364 U.S 863 (1961). The
same principle is applicable in a Board proceeding on the
merits of the case To paraphrase the court of appeals,
the adequacy of the preliminary investigation is adminis-
tratively tested, not by an investigation of the investiga-
tion, but by the General Counsel's ability in an open
hearing to demonstrate by a preponderance of the credi-
ble evidence that the respondent has engaged in the
unfair labor practices alleged in the complaint. Indeed,
the Company concedes that its argument "is not a basis
upon which the complaint can be dismissed" (Br 25).
This does not mean that the Company's argument should
be totally disregarded. A preliminary investigation,
whether impartial or not, is not a substitute for or dupli-
cate of a full evidentiary hearing The principal purpose
of the investigation is to determine whether there is suffi-
cient evidence to warrant the issuance of a complaint.
The investigator may not be interested in corroborative
for a sick employee, although none involved support for any labor orga-
nization other than FASH The Company neither requested nor forced
any of its employees to sign the petition, unless the Company's alleged
repudiation of its contract with FASH and related allegations (none of
which involved express or implied statements of support for UTA) be
deemed as constituting coercion, per se, in favor of UTA As the petition,
which constituted authorizations for payroll deduction for payment of
UTA legal expenses, was voluntarily signed by the employees, the Com-
pany did not violate the Act by honoring those authorizations Sun
Harbor Caribe, 237 NLRB 444 fn 2 (1978) Testimony was also adduced
to the effect that employee Leroy Richards, as treasurer of the "Redway
Drivers Fund," permitted Donald Sims to draw out $200 from the fund
(which Sims repaid on November 23) also for the purpose of paying
UTA's legal expenses The Fund was substantially financed through pen-
alties for nonattendance at meetings and other assessments, e g , for par-
ties and picnics, which were deducted by the Company from employees'
paychecks pursuant to their authorizations Whether the meetings be con-
sidered as FASH meetings or "drivers' meetings," and whether the Fund
was a FASH instrumentality, it is evident that the Company had no con-
trol over the disbursement of money from the Fund Therefore, the Com-
pany did not violate the Act through the action of Sims and Richardt
However, the question of whether Sims' petition or any similar document
may be used as the basis for a finding that a question concerning repre-
sentation existed in September 1979 is dependent at least initially on the
resolution of other questions, including the alleged existence of a con-
tract, which will be discussed, infra
1371
evidence. The investigator may also be concerned with
certain disputed matters and less concerned with other
matters which are more easily subject to resolution, or
involve questions that should be addressed to more
knowledgeable witnesses Issues which appear important
during the investigation may seem less so at the time of
hearing and vice versa Given the nature of the prelimi-
nary investigation, allegations that a witness gave prior
contradictory testimony in his affidavit or that the affida-
vit is a more reliable indication of the truth than the wit-
ness' testimony at the hearing should be weighed careful-
ly and with due regard to the context in which the prior
statement was made. For example, when a witness testi-
fies to facts which are not contained in his investigatory
affidavit, a finding of contradictory testimony, i.e., im-
peachment by omission ordinarily is not warranted unless
the context of the affidavit indicates a probability that
the facts would have been included in the narrative if
they were true Additionally, due consideration must be
given for the fact that in the present case certain words
or phrases meant one thing to one witness and a different
thing to another. For example, it is evident that the pre-
existing "contract" between the Company and FASH
had one meaning to Paul Dietsch and another to Donald
Sims Resolution of these conflicts was not made easier
by the fact that at times both the General Counsel and
the Company tended to couch their questions in terms of
their own respective theories of the case. These factors
have been taken into consideration in determining the
facts in this case.
B. Supervisory and Alleged Supervisory Personnel, and
an Overview of the Chronology
The Company is to a considerable extent a family-run
business Unless otherwise indicated, the individuals dis-
cussed here held their respective positions, at all times
material, specifically since at least June 1979 and con-
tinuing to the time of the present hearing Also, unless
otherwise indicated the individuals normally are based at
the Kenosha terminal. Richard Kutzler is vice president
and general manager of both Redway and Cardinal and
is in overall charge of the Company's day-to-day oper-
ations Kutzler has been in charge at Redway since 1970
and at Cardinal since it was organized in 1975 13
Kutzler's wife, Laura Gail Kutzler, is company secre-
tary-treasurer and performs office work Kutzler's son,
Scott Kutzler, is administrative vice president and as
such is second to his father in overall charge of the
Company's operations Another son, Frank W Kutzler,
is a dispatcher and is involved in all phases of the Com-
pany's operation Kutzler's brother, Frank James "Jim"
Kutzler, is shop supervisor and in that capacity directs
the work of the shop mechanics William Broyles (not a
relative, but a longtime associate of Kutzler), is safety di-
rector, and in that capacity has considerable responsibil-
ity for driver discipline. Larry Summers is chief dis-
patcher, although at one point in Kutzler's testimony he
referred to Summers as operations manager. The Compa-
ny admits, and I so find, that Frank Kutzler, Gail
11 Unless otherwise indicated, "Kutzler" refers to Richard Kutzler
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kutzler , Scott Kutzler , Frank W. Kutzler, Broyles, and
Summers are and have been at all times material supervi-
sors within the meaning of the . Act. The Company also
admits that Jim Kutzler is a managerial employee and
agent of the Company within the meaning of the Act.
His duties and responsibilities , as defined in the Compa-
ny's own memorandum on "line of authority " (discussed
infra), further indicate that he is a supervisor within the
meaning of the Act
Duane Werthen, Kutzler's brother -in-law , and Harlan
Smith (a nonrelative) are each dispatchers The Compa-
ny denies that either is a supervisor or agent of the Com-
pany under the Act In June 1979, the Company issued a
memorandum to its employees which purported to clari-
fy the Company's "line of authority" from Scott Kutzler
on down The memorandum described the areas of re-
sponsibility ( in order) of Scott Kutzler , Frank Kutzler,
Jim Kutzler , William Broyles , Harlan Smith , Larry Sum-
mers, and Duane Werthen The memorandum referred to
Smith as "operations manager over dispatch and all ter-
minal movements and/or driver discipline," and indicat-
ed that he reported directly to Richard , Gail or Scott
Kutzler. The memorandum indicated that Summers was
"senior dispatch central " reporting to Smith or Scott
Kutzler and that Werthen was "night dispatch and
shop", reporting to Smith or Scott Kutzler . The Compa-
ny has not issued any revised clarification of authority
since that time. However, in August 1979 , Smith relin-
quished his position as operations manager and assumed
the job of night dispatcher , previsously held by Werthen.
The night dispatcher normally works from 3 to 11:30
p m Summers , whether as "chief dispatcher" or "oper-
ations manager," assumed the responsibilities previously
performed by Smith 14 After his return from leave in
early November, Werthen functioned as a dispatcher
during the day . As night dispatcher , Smith is the only
person in charge at the Kenosha terminal during the
evening hours In effect , he is in charge of operations
during these periods The Company 's "line of authority"
memorandum indicates that the Company regards night
dispatch as a supervisory position . Gail Kutzler testified
that Smith and Werthen have the power to write up em-
ployees, and to make recommendations to Kutzler con-
cerning driver discipline. Indeed , it is evident that by
virtue of his position Smith is for all practical purposes
the only person who is in a position to write up and
make knowledgeable recommendations concerning al-
leged infractions during the evening hours, when he is in
communication with the Company 's drivers As dispatch-
ers, Smith and Werthen assign routes to the drivers Al-
though assignments are normally made during the day,
Richard Kutzler testified that the night dispatcher might
dispatch as many as 30 drivers during one shift It is the
Company's position that such routes are assigned on the
basis of seniority , in accordance with the most recent
14 Summers testified that he replaced Smith in July or August Smith
testified that he probably became night dispatcher in November Howev-
er, Werthen was on leave from late August until early November, and
testimony by Donald Neal concerning an accident in October indicates
that Smith was functioning as night dispatcher at that time I find that
Smith probably assumed the position of night dispatcher about the time
that Werthen went on leave
contract between FASH and the Company . However,
such assignment is not always mechanical or routine, but
may sometimes involve the exercise of discretion, or dif-
ferences of opinion Thus, Larry Summers testified that
he transferred driver Marlene Graham from the short
haul board because she was not in her proper seniority
slot (The matter is alleged in the complaint as a viola-
tion of Sec . 8(a)(1), and will be discussed at an appropri-
ate point in this decision .) As dispatcher, Smith wires
emergency funds to drivers , exercising discretion as to
amount and circumstances . I find that Smith, as night
dispatcher , has authority to and does , in the interest of
the Company , responsibly assign and direct employees in
their work and recommend disciplinary action, and is a
supervisor within the meaning of Section 2 ( 11) of the
Act and an agent of the Company within the meaning of
Section 2 ( 13) of the Act. As for Werthen, his testimony
and that of Richard Kutzler , and the Company's own
records, demonstrate his supervisory status Specifically,
Werthen has at least since August 1979, effectively rec-
ommended disciplinary action, including discharge, and
effectively recommended the permanent employment of
at least one probationary employee On the basis of
Werthen 's own testimony it is evident that Werthen,
acting on his own, refused Marlene Graham's request to
take 4 days off from work , and that he informed FASH
steward William Burton of the Company's policies with
regard to employees who went on strike . I find that
Werthen, like Smith, is and has been at all times material
a supervisor and agent of the Company within the mean-
ing of the Act.
In addition to the Kutzler family members discussed
above, the Company employs other members of the
Kutzler family in nonsupervisory capacities Robert
"Pookie" Kutzler, Kutzler's brother , is an owner -opera-
tor and is therefore included in the bargaining unit.
Pookie Kutzler leases three trucks to Redway, and
drives one himself Other relatives work or have worked
in the office, e.g, Kutzler ' s niece, Cheryl Kutzler. Nor-
bert Pfiffer (not a relative ) works in the office and pre-
pares the payroll . As I indicated at the hearing, the evi-
dence fails to demonstrate that Pfiffer is a supervisor
within the meaning of the Act.
This brings me to a chronology of the facts At the
hearing, the General Counsel asserted that this case was
"one ball of wax " To a considerable extent this is true.
It is not possible to resolve any of the principal allega-
tions in this case without looking both forward and back-
ward in time. or without reference to the merits of other
allegations Therefore, strict compartmentalization by
time period or subject matter is not a practical approach
for resolving the issues Rather, I shall proceed roughly
in chronological order, focusing on particular issues as
they arise , and resolving such issues at appropriate points
in the decision . The chronology is divided into four peri-
ods The first covers the period from the inception of the
relationship between FASH and the Company until
August 6, 1979 . This section will focus on the develop-
ing relationships within the FASH membership and be-
tween the Company and FASH , the representative status
of FASH during this period , and the contractual status
REDWAY CARRIERS
prior to the August 1979 negotiations The second sec-
tion focuses on the developments from August 6 through
September 1 As will be discussed, these developments
are crucial to the major issues in the case, including the
alleged negotiation of a contract, the contents of that
contract and the allegations of contract violations and
unilateral changes The third section focuses on develop-
ments during the period from September 1 to the elec-
tion and, in particular, on the question of whether the
election should be set aside and if so, whether a bargain-
ing order in favor of FASH is warranted The fourth
section focuses on allegations of postelection unfair labor
practices, most of which (other than alleged contract
violations and unilateral changes) are alleged to have oc-
curred since FASH commenced its strike against the
Company in May 1980.
C Background and Developments Prior to August
1979
In 1975 and early 1976 the Company, which was then
based in Waukegan, Illinois, had a complement of about
20 employees, including one mechanic, and all of its
drivers were owner-operators who leased their tractors
to Redway Also in 1975 and early 1976, FASH and spe-
cifically Organizer Paul Dietsch conducted what might
loosely be described as an organizational campaign
among the Company's employees. Dietsch met with the
drivers, and (according to the testimony of Donald Sims)
they agreed with Dietsch that they needed a union
Dietsch approached Richard Kutzler and on behalf of
FASH requested and was granted recognition for FASH
as bargaining representative. The drivers elected Harlan
Smith (then a driver) as steward. Dietsch, with the assist-
ance of Smith and another driver, negotiated a collec-
tive-bargaining contract with Kutzler In August 1976
FASH and Redway executed a contract, effective from
September 1, 1976, through August 31, 1978, which was
also signed on behalf of Cardinal and specifically ap-
proved in writing by 17 of the drivers, I e , nearly the
entire employee complement 15 Dietsch testified that he
and Kutzler discussed the shop personnel during their
negotiations However, no written recognition agreement
was presented in evidence (assuming that one existed)
and the 1976 contract, although not defining the unit,
purported by its terms to cover only the Company's
equipment owners and operators, i e., drivers. It was stip-
ulated at the hearing and I so find that the owner-onera-
tors are employees under the Act, and included in the
11 The contract indicates that it was formally executed on August 29,
1976, although it is evident from the signed endorsements that an agree-
ment had been reached by August 14, 1976 In the interim the drivers
added their written approval Whether these facts have any significance
with respect to the 1979 negotiations will be discussed in the next section
of this decision The contract purported to be executed on behalf of
"Fraternal Association of Special Haulers Local Union 100" Paul
Dietsch testified in sum that FASH, when it was formed in 1970, intend-
ed to eventually subdivide into local unions designated in numerical se-
quence, beginning with Local 100, but that the plan was never effectuat-
ed and the designation of Local Union 100 was eventually dropped from
its name I find that Fraternal Association of Special Haulers and Frater-
nal Association of Special Haulers Local Union 100 are one and the same
organization and that the designation of "Local Union 100" has no sig-
nificance with respect to this case At no time in its relationship with
FASH did the Company ever raise any question in this regard
1373
appropriate bargaining unit I find that a majority of the
Company's employees designated FASH as their bar-
gaining representative and that the Company lawfully
recognized and entered into a contract covering a unit
which at that time comprised all of the Company's driv-
ers, but excluded shop employees 16
The 1976 contract was, as testified by Sims, a "bare
bones" agreement which FASH and the employees re-
garded as adequate only as a starter The contract pro-
vided for minimum pay to truck owners of 66 percent of
the gross revenue on loads, and 27 percent of gross reve-
nue to nonowner drivers However, the contract was
substantially devoid of provisions for fringe benefits and
failed to cover problems which developed with the
growth of operations Indeed, Paul Dietsch agreed that
the contract was inadequate Dietsch was also impressed
by Sims, and regarded him as a strong personality who
assumed a leadership role among the employees In the
spring of 1977 Harlan Smith resigned as steward, and the
employees elected Sims as steward and driver, Daniel
Webster as assistant steward. Thereafter, Sims regularly
presided at the FASH meetings 17
On January 9, 1978, Paul Dietsch on behalf of FASH
and Richard Kutzler on behalf of Redway executed a re-
negotiated version of the 1976 contract The renegotiated
contract contained the same effective dates (September 1,
1976, through August 31, 1978) but contained new and
modified provisions. Among other changes, the renegoti-
ated contract provided for a temporary increase in the
minimum pay scale for drivers, an employee health care
fund, unpaid vacations, reimbursement for some motel
bills, and payment or withholding of social security and
income taxes. The contract rider on "Procedures and
Company rules and regulations" also provided for a
"loading and unloading fee " Some of these changes and
provisions will be discussed in detail in section E of this
decision The revised contract, like the original 1976
contract, did not purport to cover shop employees and
did not make any provision for their wages and benefits
The revised contract was also signed on behalf of Cardi-
nal Unlike the original contract, there is no indication of
employee ratification or approval Harlan Smith and
Larry Summers signed the document as witnesses, but
16 The Company did not at that time utilize "spotters" as such Rather,
their use came about as a result of the Company's expansion of business
As will be discussed in connection with the spotting fee issue, spotters
operate company trucks and their functions are also performed by road
or short haul drivers Spotters do not comprise a distinct group of em-
ployees, rather they are drawn from the Company's complement of driv-
ers, and drivers switch back and forth between road or short haul driving
and spotting I find that spotters are drivers who at all times have been
included in the bargaining unit
11 I use the term "FASH meetings" advisedly FASH's constitution
and bylaws provide for monthly and special meetings However, it is evi-
dent that these provisions refer to general membership meetings As indi-
cated, FASH does not have affiliated or constituent local unions as such
However, the monthly meetings of company employees, and special
meetings which were called from time to time, were normally chaired by
the steward, attended by Paul Dietsch whenever he could be present, and
utilized for the purpose of discussing union business, including the formu-
lation of union positions in collective bargaining with the Company I
find that until August 1979, unless otherwise indicated, the meetings
whether or not referred to as "drivers' meetings" were in fact FASH
meetings for employees in the bargaining unit represented by FASH
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there is no indication that any employee or negotiating
committee, as such, participated in the negotiations
However, I credit the testimony of Donald Sims, in sum,
that Dietsch submitted the proposed and renegotiated
changes to the employees for their approval before he
executed the revised contract
Before resuming the narrative of events, it is necessary
at this point to consider the union-security and steward
provisions of the contract. The 1976 contract, both in its
original and revised form, and the contract allegedly exe-
cuted on September 1, 1979, contain the following
"union shop rule" (art. 1, sec 1).
The owners and/or operators covered by this
Agreement, shall become members of the Union on
or after the 30th day following the beginning of
their being hired by the Company or the handling
of eight (8) round trips whichever occurs first.
They shall continue their membership in such
Union for the duration of this Agreement.
It is possible for a driver to complete eight round trips in
less than 30 days. Richard Kutzler testified that a driver
assigned to short runs might make eight round trips in as
little as 1-1/2 to 2 days. FASH Organizer George Sulli-
van testified that the clause is substantially identical to
the union-security clause in other FASH contracts, but
contains an error in punctuation. i s According to Sulli-
van, there should be a semicolon after "30th day," i.e.,
the clause should be read as referring to two alternative
situations following the expiration of 30 days Sullivan
testified in sum that the clause was drafted in its present
form in order to prevent evasion of union security by
trip leasing, i.e , by treating each trip by an owner-opera-
tor as a temporary hire It is undisputed that new em-
ployees, including owner-operators, were invariably in-
formed that they were required to join the Union after
30 days of employment, and that in practice no employee
was required to join the Union before the expiration of
30 days
I find that the union-security clause is ambiguous on
its face, in that it may reasonably be interpreted in either
of two ways, one of which would be lawful and the
other unlawful. "Recourse must be had therefore to the
practice under the contract to determine the intent of the
contracting parties as to the meaning of the union-securi-
ty provision" Kaiser Aluminum & Chemical Corp, 98
NLRB 753, 754 (1952). Sullivan's uncontradicted expla-
nation of the reason for including the reference to eight
round trips is consistent with a lawful interpretation of
the clause As indicated, the Company and FASH have
consistently interpreted and applied the clause in a lawful
manner. Therefore, I find that the clause and its applica-
tion were lawful. See Kaiser Aluminum, supra; NLRB v.
TV & Radio Broadcasting Employees, 315 F.2d 398, 401-
402 (3d Cir. 1963), New York State Electric & Gas Co,
135 NLRB 357, 361 (1962). It follows that the clause and
its enforcement cannot be used as a basis for questioning
18 Sullivan has been a FASH organizer since 1976 Since March 1979,
pursuant to assignment by FASH President William Hill, Sullivan has as-
sisted Paul Dietsch in FASH's dealings with the Company and the unit
employees
the Union's representative status or the legality of any
contract.
FASH, which was organized in 1970, came into exist-
ence at least in part because of resentment by some em-
ployees in the trucking industry against what they re-
garded as an improper practice of union business agents
who dealt with employees without the involvement of
the employee steward or the drivers However, FASH
did not dispense with the use of full-time, nonemployee
organizers and business representatives to deal with em-
ployers. Thus, FASH President Hill designated Organiz-
er Dietsch to deal with the Company, and subsequently
designated Organizer George Sullivan to assist him.
However, because of the farflung area of his responsibil-
ities, which involved other FASH-represented units,
Dietsch was not regularly or even frequently present at
Kenosha, and sometimes was unable to attend employee
meetings. Steward Donald Sims was as indicated a
strong and assertive individual who regarded himself as a
leader and spokesman of the employees. These factors
led to developments which would have far reaching im-
plications for the unit employees. Neither FASH's con-
stitution and bylaws nor the 1976-1978 contract define
the duties or authority of FASH's professional staff rep-
resentatives in collective bargaining However both the
constitution and the contract provide for a steward The
constitution (art. 6, sec. 7) provides for an employee rep-
resentative (and assistants if necessary), appointed by the
president with the approval of the employee members,
who "shall report to the Union president" and whose
duties are "to investigate grievances and to conduct
union business between the Union and its members who
are employed by the Company." The contract similarly
provides (art. 8, sec 1) that.
The Union shall designate one of its members as a
Union steward, and other members as assistant
Union stewards The duties of the stewards will be
to investigate grievances and to conduct Union
business between the Union and its members who
are employed by the Company.
On its face, this provision leaves a substantial gray area.
There is a big difference between conducting union busi-
ness between "the Union and its members" and conduct-
ing union business between the Union and the Company.
However, the contract does authorize the steward to
present, process, and resolve disputes at the first step of
the grievance process The contract further provides that
"All grievances which have been heard and ruled upon
will set precedent " The phrase "heard and ruled upon"
indicates a reference to those grievances which were
submitted to binding arbitration. However it is evident
that resolutions at the first step, depending on the nature
of the grievance, may well result in extracontractual con-
ditions of employment, or even operate to nullify con-
tract provisions It is also evident that Sims' strong and
assertive personality led to the adjustment of many
grievances at the first step Sims testified that as each
matter was resolved he inserted the written resolution or
a notation into his copy of the contract His testimony in
this regard was corroborated by Richard Kutzler How-
REDWAY CARRIERS
ever, Sims testified that about August 3, 1979, his anno-
tated copy of the contract, together with a petition
(which will be discussed), and other papers were stolen
from his file cabinet. Kutzler testified that these adjust-
ments resulted, among other things, in snow pay and
money for meals when a driver was laid off (not provid-
ed in the written contract) and an agreement that the
Company would not effectuate a dispatch procedure
which was permitted under the contract (art. 26, sec
IX) 19 I credit the testimony of Sims and Kutzler con-
cerning these agreements. Their testimony is further cor-
roborated by the circumstances surrounding the so-called
spotting fee. Article 26, sec VII of the revised 1976-
1978 contract provides
If a driver requests that the Company load or
unload a trailer (and a spotter is available) the Com-
pany will charge the driver a $15.00 loading or un-
loading fee
It is substantially undisputed that prior to September
1979 the Company never imposed such a $15 "spotting
fee." However, as will be discussed, there was in some
instances a charge based on 3 percent or 2-1/2 percent of
gross revenue 20 Richard Kutzler testified in sum that
after the 1976-1978 contract was renegotiated, stewards
Sims and Webster complained that a flat $15 fee was
unfair to short haul drivers, who transported more loads
than the road drivers Thereafter, Kutzler agreed to uti-
lize a spotting fee based on percentage of revenue (2-1/2
percent for pigs and 3 percent for other loads). No other
explanation was offered in this proceeding as to why the
Company utilized the percentage fee instead of the flat
$15 fee which was expressly provided in the contract In
the absence of some agreement, it is unlikely that Kutzler
would have simply disregarded a contract clause (par-
ticularly one which was mandatory in language) and
which tended to benefit the Company. It is evident that
Sims failed to inform Paul Dietsch of many of these ad
hoc resolutions In so doing, Sims breached his fiduciary
obligations to FASH However, by reason of his author-
ity to resolve grievances at the first step, Sims as chief
steward had both actual and apparent authority to enter
into these agreements on behalf of the Union. See and
compare Auto Workers Local 600 (Ford Motor Co.), 225
NLRB 1299, 1309 (1976), Eldorado Mfg Corp, 249
NLRB 646, 648 fn 1 (1980) See also Section 2(13) of
the Act. These agreements, even to the extent that in
effect they operated to modify the contract, became a
part of the negotiated terms and conditions of employ-
" Kutzler and the stewards agreed that seniority rather than the prin-
ciple of first-in and first-out would be followed in the event of forced
dispatch
20 Owner-Operator Emanuel Richardson, who was presented as a
General Counsel witness, testified that in June 1979, when he began haul-
ing "pigs," i e, to and from American Motors Corporation, he was in-
formed by Scott Kutzler that there was a $15 spotting fee for each
loaded trailer, and that there was no change after September 1, 1979
Richardson's testimony was controverted by every other witness on the
subject, including Richard Kutzler Richardson's own settlement sheet
for the pay period ending September 1, 1979, indicates a spotting fee of 3
percent of company gross revenue Richardson was not a credible wit-
ness Indeed, as will become apparent throughout this decision, I have
not found any important witness to be wholly credible
1375
ment, or what has been referred to in testimony as "past
practice."
FASH is part of what might be described as a double-
breasted union One division consists of Fraternal Asso-
ciation of Special Haulers (the Union), and the other
consists of Fraternal Association of Steel Haulers (Steel
Haulers) In the fall of 1978, Steel Haulers commenced
an industrywide strike At the time, Sims was on leave
by reason of an injury which temporarily incapacitated
him from driving. Whether by reason of his physical
condition or his personal ambition, or a combination of
both, Sims demonstrated a determination to move
onward and upward, whether through union activity or
job duties or both, and to do almost anything except
drive a truck Sims volunteered to help with the Steel
Haulers' strike. He returned to work with the Company
in January 1979, and remained as chief steward Howev-
er, he came away from his experience with a growing at-
titude that FASH was not a democratic union and was
dominated by the Steel Haulers. From that point on
there was a growing resentment on the part of Sims
toward the FASH professionals. About the same time,
another strike occurred, which would have a substantial
effect on the employee unit. The Ocean Spray Company,
located in Kenosha, was one of the Company's principal
customers. In December 1978 or early 1979 the Machin-
ists Union called a strike against Ocean Spray which
lasted until August 1979 As a result of the strike Ocean
Spray utilized Elga Whitfield, a supplier located in
Montgomery, Alabama. This in turn meant that much of
the Company's operation was being diverted to Mont-
gomery. The Company found that this arrangement was
inconvenient without its own terminal in that area. In
March Kutzler asked Sims to set up and run a temporary
terminal in Montgomery, and Sims agreed. Thereafter
Sims was based in Montgomery (on and off) for most of
the period from March to September 1979, when the
Montgomery terminal was closed. Sims informed Paul
Dietsch that he was going to Montgomery, and also sug-
gested that he could conduct a FASH organizing cam-
paign among the Elga Whitfield employees. Dietsch
agreed and gave Sims literature and cards. However,
they had a heated argument about whether Company
drivers hired in Montgomery should be paid at a lower
rate than Kenosha drivers (24 percent instead of 27 per-
cent of gross revenue). Sims indicated that he agreed
with Kutzler in this regard, but Dietsch insisted that
there could only be one rate for the drivers. Sims never
followed through on the promised organizational cam-
paign.
During this hearing, the General Counsel presented
evidence which on initial consideration would seem de-
signed to prove that Sims became a supervisor within the
meaning of the Act. However when questioned about his
position, the General Counsel indicated that he was not
trying to prove supervisory status, but simply trying to
show that FASH had reason to believe that Sims was a
supervisor. If true, it is difficult to see what relevance
this would have to the issues in this case The Company
and Sims contend that Sims was never a supervisor.
FASH contends that Sims became a supervisor. I credit
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the testimony of Paul Dtetsch and other witnesses that
Sims referred to himself as a terminal manager at Mont-
gomery. Sims had a pronounced tendency to exaggerate
his own importance, both in his job duties and as chief
steward In fact, as distinguished from his puffing, Sims'
duties never rose to the level of supervisory status. Sims
was a glorified custodian, he performed spotting, an-
sweredi the telephone, relayed instructions from Kenosha,
forwarded job applications to Kenosha (sometimes with
a favorable recommendation), and as steward, continued
to resolve or attempt to resolve grievances However, he
did not participate in the discipline or hiring process, and
loads were dispatched and drivers normally assigned
through the dispatch office in Kenosha. I find that Sims
remained an employee within the meaning of the Act.
In the meantime, as indicated, the collective-bargaining
contract carried an expiration date of August 31, 1978
The employees were impatient for negotiations to begin,
but Kutzler indicated that because of the expanding
nature of the business he preferred an extension of the
contract and delay in negotiations until later in 1978.
Paul Dietsch, with the assistance of stewards Sims and
Webster, worked out an extension agreement with
Kutzler 21 The text of the extension agreement, dated
August 28, 1978, provided as follows-
Labor Agreement Dated September 1, 1976 and all
ammendments [sic] thereto between Redway Carri-
ers Inc , and Fraternal Association of Special Haul-
ers Local Union 100 is hereby extended indefinitely.
The said extension agreement may be terminated by
either party with thirty (30) day written notice, ac-
knowledged by both parties of Termination in Writ-
ing.
About the same time, Dietsch and Kutzler entered into a
written agreement providing for guaranteed minimum
pay of 20 cents per mile for all drivers on forced dis-
patch, and for company payment of motel and meal ex-
penses on all forced weekend layovers I credit Dietsch's
testimony that these provisions were intended to effectu-
ate an agreement covering two matters of particular con-
cern to the drivers, although negotiations for a new con-
tract were extended indefinitely. Sometime thereafter,
Dietsch and Kutzler executed an undated written agree-
ment which provided as follows:
RE Labor contract extension, dated August 28,
1978
executed some time before November 1978 However,
Dietsch testified that at the time the Company had em-
ployees in Montgomery This fact would place the sign-
ing at a much later time than November 1978 Kutzler
testified without contradiction that this agreement was
intended by the parties to constitute the 30-day notice
which was provided for in the August 28 extension
agreement Moreover, the August 28 agreement did not
expressly refer to negotiations, and the only implied ref-
erence is the provision for termination on 30 days' writ-
ten notice Hence the phrase "As per our extension
agreement" evidently refers to the 30 days' notice provi-
sion I credit the testimony of Kutzler that this agree-
ment was executed in late February. By this time the sit-
uation was reversed Kutzler, who was concerned about
dissatisfaction among the drivers, wanted to begin nego-
tiations as soon as possible However Dietsch, who was
preoccupied with the Steel Haulers' strike, was not pre-
pared to do so. I further credit the testimony of Kutzler
that this agreement constituted a quid pro quo, namely,
that contract changes would be retroactive only if negoti-
ations began by April 1.22
As previously indicated, Kutzler furnished an affidavit
to the Board's Regional Office in connection with an
unfair labor practice charge filed by FASH against
Teamsters in April 1979. That affidavit, dated April 11,
substantially deals with the subject of Teamsters picket-
ing and threats However, Kutzler stated in the affidavit
that FASH represented the Company's drivers and me-
chanics, that the Company had a contract with FASH,
that the parties agreed to an indefinite extension of the
contract, and that negotiations for a new contract began
on April 1, 1979. In the present proceeding, Kutzler tes-
tified at one point that the affidavit was true to the best
of his knowledge, and at other points that the affidavit
was false, in that there was no contract and negotiations
had not begun If the present case involved disputed
questions of operative facts concerning all of the forego-
ing assertions in Kutzler's affidavit, that affidavit would
constitute a damaging and probably fatal admission
against the Company The difficulty with this approach,
which is strongly urged by the General Counsel in its
brief (pp. 35-37), is that even on the basis of testimony
by FASH Organizers Dietsch and Sullivan it is evident
that contract negotiations did not begin on or before
April 1, and that the responsibility for the delay rested
with FASH In fact, it is undisputed that the parties did
not meet in contract negotiations until early May.
As per our extension agreement, of letter dated on
the above date, negotiations are to begin no later
than April 1, 1979 All changes to contract retroac-
tive to April 1, 1979.
Kutzler testified that this agreement was signed in late
February 1979 Dietsch testified that the agreement was
21 1 find it immaterial whether Sims and Webster worked out language
which was subsequently approved by Dietsch, or whether Dietsch was
actually present at the negotiation of the written agreement The basic
agreement to extend the contract and delay negotiations was made by
Dietsch and Kutzler Dietsch signed the agreement either concurrently
with the stewards or shortly thereafter
22 This is one of several instances in which I have been called on to
interpret agreements between the parties, or to resolve matters which
under different circumstances might have been resolved through contrac-
tual arbitration The present case presents allegations that the Company
has unlawfully repudiated both a contract and its bargaining relationship
with FASH Questions are presented as to the existence of a contract and
FASH's representative status In sum, there has been a breakdown in
contractual relationship, which has led to the present proceeding There-
fore, in order to decide the issues in this proceeding, I am invoking the
Board's "superior authority" to resolve such questions of contract inter-
pretation, or the subject matter of pending or potential grievances, in
order to pass upon and if necessary remedy alleged unfair labor practices
Janes B Carey v Westinghouse Electric Corp , 375 U S 261, 272 (1963),
see also NLRB v Acne Industrial Co, 385 U S 432 (1967), NLRB v C &
C Plywood Corp, 385 U S 421 (1967)
REDWAY CARRIERS
Dietsch testified that they did not meet by April 1 be-
cause the driver-members of FASH's negotiating com-
mittee were usually in Montgomery, and it was difficult
for him to meet with them (although Dietsch admitted
that he could get together with them on weekends).
Dietsch testified that in a telephone conversation in early
April Kutzler stated that he wanted to begin negotia-
tions, but Dietsch answered that he had to get his com-
mittee together Organizer Sullivan testified that in a
telephone conversation in the last week of March (before
he had even met Kutzler in person), Kutzler proposed a
miles-and-hours contract and a separate contract for
Montgomery, that Sullivan rejected both proposals, that
they talked about the shop, and that Sullivan said that
FASH wanted health care benefits for the shop employ-
ees. Sullivan's testimony was impliedly contradicted by
Dietsch, who testified that he met with Kutzler in mid-
April, that Kutzler then proposed a 22-percent rate for
Montgomery drivers, and that Dietsch responded that
"they should take it up in negotiations." FASH did not
present written contract proposals to the Company in
any form until Dietsch and Kutzler met in early May.
Even assuming the truth of Sullivan's testimony, his tele-
phone contacts with Kutzler did not constitute contract
negotiations under Board law. Rather, "face-to-face ne-
gotiations" between the "bargaining principals" is "an el-
ementary and essential condition of bona fide bargain-
ing." Colony Furniture Co, 144 NLRB 1582, 1589 (1963)
So also is an exchange of contract proposals. Neither
condition was met in the present case on or before April
1 Thereafter, the matter of retroactivity was not men-
tioned in negotiations and was not even mentioned at all
by either party until September 8 when, according to
Kutzler, Dietsch said "we're going to break your ass and
go to retroactivity to April 1 "23 It is evident that as of
April 1979 Kutzler preferred the known FASH to the
unknown Teamsters, and in his affidavit opted to gloss
over the emerging problems in the Company-FASH rela-
tionship and to paint a rosy picture of that relationship
I find that the precondition for retroactivity was not
met, that FASH was responsible for the late commence-
ment of negotiations, and that, therefore, by reason of
the agreement between the parties, retroactivity was in-
applicable to any subsequently negotiated contract Also,
the 1976-1978 contract expired as of April 1, 1979, by
reason of the prior agreements between the parties.
However, the concurrent and subsequent action (and
nonaction) of the parties indicates that they preferred to
maintain the status quo, pending the completion of nego-
tiations for a new contract Therefore, the Company and
FASH maintained a tacit understanding that the terms
and conditions of the revised contract would remain in
effect Neither party sent notices to the Federal or State
Mediation Services, as provided in Section 8(d)(3) of the
Act The Company continued to check off and forward
dues to the Union, although with the expiration of the
contract it could lawfully have unilaterally terminated
22 Dietsch, in his testimony, denied that he threatened to break
Kutzler's "ass with retroactivity" Dietsch admitted that they talked
about retroactivity, but he did not testify as to what was said on the sub-
ject I credit Kutzier
1377
this practice Ortiz Funeral Home Corp, supra, fn 6,
citing Bethlehem Steel Co. (Shipbuilding Div.), 136 NLRB
1500, 1502 (1962), revd. on other grounds sub nom Ship-
builders v. NLRB, 320 F 2d 615 (3d Cir. 1963), cert.
denied 375 U S 984 (1964). In June, the Company tem-
porarily discontinued checkoff However, as will be dis-
cussed, the Company did so for reasons unrelated to its
prior agreements with FASH. In sum, the situation as of
and after April 1 was that FASH and the Company were
parties to an implied understanding to maintain the terms
and conditions of the 1976-1978 contract, as revised 24
In early May Dietsch came alone to the Kenosha ter-'
minal and presented Kutzler with a sealed envelope con-
taining FASH's contract proposals. Kutzler opened the'
envelope, read the proposals, and in no uncertain terms
expressed his shock and protest. Kutzler argued that the
proposals were "crazy," "outrageous," and unrealistic,
and that the Company could not afford to meet FASH's
demands. The proposals (G C Exh. 8) were not present-
ed in the form of contract language Rather in the words
of Donald Sims, they constituted a "want list" of union
demands Dietsch proposed, inter alia, paid vacations,
pension plan coverage, elimination of all loading and un-
loading charges, and (as in the prior contract) a list of
rules and regulations governing dispatch procedures to
be attached to the contract Dietsch also proposed, for
the first time, terms and conditions of employment for
the mechanics and other shop employees. At no time did
Kutzler take the position that the shop employees were
improperly included in the bargaining unit. Kutzler, in
his testimony, admitted that FASH obtained dues-check-
off authorizations from the shop employees sometime
before August 1978. By April, FASH had a shop stew-
ard (Daniel Wakeland) As previously discussed, Kutzler
indicated in his April investigatory affidavit that he re-
garded FASH as the representative of both drivers and
mechanics I find that as of April 1, 1979, FASH was the
lawfully designated bargaining representative of both
drivers and mechanics, i e., of all of the employees in the
bargaining unit here found appropriate.
Dietsch and Kutzler agreed to meet again in about 2
weeks They met on Saturday, May 19 Dietsch was ac-
companied by George Sullivan, assistant steward Daniel
Webster, shop steward Daniel Wakeland, and employees
Edward Shore and Leroy Richardt Donald Sims was in
24 Kutzler gave assistant steward Webster a written note, dated May 4,
stating that As of May 1st, 1979 we no longer recognize any labor
agreements, and will treat our employees as we wish Any new contract
must be after an N L R B vote " Webster subsequently showed the note
to Paul Dietsch In the meantime Dietsch and Kutzler had commenced
contract negotiations Kutzler testified that he gave Webster the note be-
cause the drivers were complaining that they did not want FASH any-
more However, the present record is devoid of objective evidence that
up to this time a majority of the unit employees had rejected FASH as
their bargaining representative I find, in light of Kutzler's subsequent
course of conduct, that Kutzler was simply trying to prod Dietsch into
commencing negotiations Indeed, the Company concedes as much in its
brief I agree with company counsel that Dietsch's "actions in this regard
speak louder than his words " (Br 31 ) However this does not mean that
the employees who saw the note, including Webster, could not take it
seriously The note is significant in that it contained an implied repudi-
ation of FASH, including an implied threat of unilateral changes in work-
ing conditions and a refusal to execute any negotiated contract which
would preclude any subsequent question concerning representation
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Montgomery at the time. Kutzler was accompanied by
one of his sons. Kutzler presented a written statement of
the Company's position and written counterproposals
(C.C Exhs 10 and I1). The thrust of the Company's po-
sition was in essence that FASh could not have it both
ways, i e., that the Company would have to go to a
miles-and-hours contract in order to meet the benefits de-
manded by FASH.25 The Company also proposed "first
'in, first out" dispatch from the home terminal The Com-
pany further responded to FASH's proposals, seriatim,
by way of agreement, qualification, or counterproposal
With respect to loading and unloading charges, the Com-
pany proposed that "payment for owner operators will
be paid upon adjustment of percentage." Nothing further
was accomplished at this meeting
Paul Dietsch, accompanied by driver Ed Shore, next
met for negotiations with Kutzler on Friday, May 25 26
However, the meeting was aborted because of the prior
intercession of Donald Sims Sims' antagonism toward
the FASH administration in general and Dietsch in par-
ticular was steadily increasing In late April, Dietsch
criticized Sims for the manner in which he handled the
discharge of three company drivers at Montgomery, al-
legedly for drunkenness Dietsch and some union mem-
bers felt that Sims should have taken a stronger position
on behalf of the drivers Sims angrily told Dietsch that if
Dietsch,did not like it Dietsch could handle the griev-
ances. Dietsch took Sims at his word and decided that
thereafter he would handle grievances himself (rather
than assistant steward Webster, whom Dietsch regarded
as ineffectual in dealing with Kutzler). Dietsch informed
Kutzler that Sims would no longer be handling griev-
ances Sims retained his position as steward until August
18, when he formally resigned from that position How-
ever, Sims ceased to function as a subordinate to FASH
President Hill or his designated subordinates Dietsch and
Sullivan Rather, as will be discussed , Sims as a self-ap-
pointed leader of the employees acted in whatever
manner he considered to be in the best interests of the
employees, whether or not that manner happened to co-
incide or conflict with the positions taken by the FASH
professionals When Sims learned about the May 19
meeting he was furious Sims telephoned Kutzler and in-
formed him that he was contesting the next meeting
scheduled for May 25 Sims' explanation of what he told
Kutzler was confused and contradictory. Sims variously
testified on the one hand that he contested the meeting
and on the other that he contested their meeting without
him. Sims attempted to reconcile this apparent contradic-
tion by explaining that he intended to go to the meeting
for the purpose of stopping it Sims testified that in his
view there was no contract after April 1, that FASH
was no longer the representative of the employees, and
25 Organizer Sullivan testified that from the drivers' standpoint the
comparative advantages of percentage-based compensation and mile-and-
hour compensation depend on whether the employer carries high paying
freight Sullivan testified that since April 1979, when the Company began
hauling for American Motors, the percentage system has been more ad-
vantageous to the Company's drivers
26 Kutzler, in his testimony, erroneously telescoped the May 19 and 25
meetings into a single meeting Unless otherwise indicated, I credit the
testimony of Dietsch concerning the sequence of meetings
that, as the elected chief steward, he was the only repre-
sentative who was authorized to speak for the employ-
ees Kutzler testified that Sims protested their meeting
without him, and argued that Sims was the designated or
selected representative of the employees under the Na-
tional Labor Relations Act. As with Kutzler, Sims' ac-
tions spoke louder than his words Sims was perfectly
willing to participate in negotiations between FASH and
the Company, when and to the extent that it suited his
interests, which he regarded as identical with those of
the employees There was in fact considerable employee
discontent during this period, principally arising from the
lengthy delay in negotiations for a new contract To a
great extent, this delay was caused by Paul Dietsch's
preoccupation with other matters and his consequent in-
ability to devote sufficient time and effort to the compa-
ny bargaining unit Sims gradually came to the conclu-
sion that the solution would be a chartered FASH local
at the Company (presumably with himself at the head).
With his persuasive ability, Sims was for a period of time
able to persuade many and probably most of the employ-
ees that this was a viable and desirable solution. Howev-
er, at no time prior to September did Sims take action
toward a complete break with FASH In the meantime,
as will be discussed, Sims' persuasive abilities failed him
at the one time when it mattered most
When Dietsch and Kutzler met at the Kenosha termi-
nal on May 25, Kutzler asserted that they could not con-
tinue because Sims had protested the meeting Dietsch
argued that he represented FASH and that a steward
had no right to protest their meeting. Kutzler said that
he would meet under protest, but could not agree to
anything. Kutzler placed a telephone call to Sims (who
was in Montgomery) and Dietsch and Sims spoke pri-
vately. They argued about which of them was author-
ized to meet with the Company, without any resolution
or agreement Dietsch returned to the bargaining table,
and Dietsch and Kutzler restated their positions with
regard to a contract. Dietsch rejected the concept of a
miles-and-hours contract The following week Dietsch
telephoned Kutzler and they agreed to meet again in ne-
gotiations However, Dietsch pointed out that he had a
problem with Sims According to Dietsch, Kutzler said
that he thought the problem could be resolved if Sims
was given a "little power" or if FASH could arrange for
a drivers' local at the Company Dietsch responded that
the FASH constitution made no provision for locals at
the company level Kutzler testified that he told Dietsch
that he should get together with the drivers and find out
what was the problem I credit Dietsch Kutzler, who in
many ways was more knowledgeable about employee at-
titudes than Dietsch, put his finger precisely on the prob-
lem which existed at that time
Dietsch and Kutzler next met in contract negotiations
on Saturday, June 2, at a Howard Johnson's Motel in
Kenosha Dietsch was accompanied by Sims and Daniel
Wakeland, and Kutzler by Scott Kutzler. Dietsch testi-
fied that he agreed to Sims' presence because of Sims'
leadership role among the employees and because he un-
derstood that Sims' position as "terminal manager" at
Montgomery was only temporary, According to Dietsch,
REDWAY CARRIERS
he wanted to go through FASH's proposal list, but
Kutzler insisted that FASH prepare a second proposal
Sims agreed with Kutzler, and in Kutzler's presence
called Dietsch a "dumb son-of-a-bitch" for having failed
to come to the meeting with a revised list of proposals,
i e , in order to meet the Company's prior counterpro-
posal Sims testified that in his view Dietsch was unpre-
pared for negotiations, and his proposals consisted of
nothing more than a "want list " Kutzler testified that
Dietsch asked that both the original FASH proposal and
the Company's counterproposal be withdrawn, and that
he agreed I credit Dietsch It is unlikely that Dietsch
would have come to Kenosha simply for the purpose of
saying that all outstanding proposals should be with-
drawn Sims testified that he went to the June 2 meeting
in order to stop both the meeting and further negotia-
tions If so, Sims temporarily succeeded in his purpose.
The meeting broke up 27 Dietsch met with his ad hoc
negotiating team , including Sims Over the objections of
Sims, they agreed on the substance of a revised list of
proposals No further negotiating meeting was scheduled
However, on Friday, June 8 , Dietsch went to the Keno-
sha terminal to present FASH's "Union Proposal #2" to
Kutzler, after first meeting with his negotiating commit-
tee Dietsch never got to meet Kutzler During the pre-
vious week, Sims had protested to Kutzler against any
further negotiations with Dietsch, and also persuaded
Kutzler to discontinue checkoff of union dues. Sims
falsely told Kutzler that the drivers had withdrawn from
FASH The Company did not check off FASH dues in
June and July, but resumed checkoff ( including dues for
June and July) after Dietsch and Sims reached an accord
in the matter When Dietsch arrived at the terminal on
June 8, he was met by Sims, who escorted him to a
truckstop diner where they met with employees Webster,
Wakeland, Richardt, and Merle Reams (steward at the
Plymouth terminal) Sims and Webster told Dietsch that
the employees were going to file a petition with the Na-
tional Labor Relations Board for their own FASH local.
Dietsch explained to Webster that such petitions are not
processed through the Board but that any such requests
should be presented to FASH President Hill Dietsch in-
vited Webster to check with the Board Webster tele-
phoned the Board's Regional Office and, after doing so,
informed Dietsch that Dietsch was correct It is evident
from Dietsch's uncontroverted testimony concerning this
meeting, which was even corroborated by Sims, and
from additional evidence which will be discussed, that
whatever petition was signed by the employees about
June 1979 pertained only to the establishment of a FASH
local, and did not call for rejection of FASH as bargain-
ing representative
On June 16, Sims presided at a drivers' meeting at
Varney's Bar in Kenosha, which was attended by Paul
Dietsch Sims criticized Dietsch, alleging that he was not
adequately representing the employees Sims demanded a
charter for a FASH local at the Company and asserted
that they would not permit negotiations until President
27 During the meeting Dietsch and Kutzler also discussed a grievance
involving the discharge of driver George Taylor This matter will be
taken up at a later point in this decision
1379
Hill met with the employees Dietsch said that Hill
would come as soon as he was able At no time did Sims
assert that the employees rejected FASH as their bar-
gaining representative Sims testified that shortly after
the meeting he prepared a petition which stated in sub-
stance that "we, the undersigned" employees of Redway
elected to self-organize and "start our own union" and
no longer recognized FASH or Paul Dietsch as "our
representative " Sims testified that he solicited signatures
for the petition on June 20, circulated the petition at an
employee picnic around June 23, and eventually obtained
more than 48 signatures Sims' testimony was substantial-
ly corroborated by Edward Shore, who as indicated,
subsequently initiated the Teamsters' organizing cam-
paign However Sims admitted that notwithstanding the
alleged language on the petition, its principal purpose
was to put pressure on FASH to give the employees
their own local. Sims further testified that the petition
was seen only by the employees and that he did not
present the petition either to the Company or FASH. In-
stead, according to Sims, he put the petition in his filing
cabinet, reserving it for future use in the event that the
employees did not get their separate local, but in early
August the petition was apparently stolen, together with
his annotated copy of the 1976-1978 contract
In late June and early July Kutzler asked Dietsch on
several occasions when Hill would be able to set up a
local at the Company. In mid-July Dietsch told Sims that
Hill would come to Kenosha on August 3 to set up a
meeting with the employees About the same time Sims
told Organizer Sullivan that he would inform Kutzler
that dues checkoff could be resumed On August 3 Hill,
accompanied by Dietsch and Sullivan, met with Sims,
Richardt, Shore, and Wakeland Hill informed them that
he would address the employees at a regular monthly
meeting which was scheduled for the next day, Saturday,
August 4, at Varney's Bar.28 Sims testified that Hill
promised to talk about a FASH local. Sullivan testified
that Hill said nothing about a local, but that they were
planning on it I credit Sims, but in light of the develop-
ments at the August 4 meeting, I find it immaterial
whether Hill told Sims that he would talk about a
local.29 That same day (August 3) Kutzler sent Sims, as
28 The Company's own records indicate that this was a regularly
scheduled meeting Specifically, in accordance with established and
agreed-upon practice, LeRoy Richardt, as treasurer of the Redway Driv-
ers Fund, authorized the Company to deduct from employee paychecks
the standard fine for nonattendance at such meetings The fine of $5 or
$10 for a second consecutively missed meeting was deposited in the
Fund
29 Sullivan testified that FASH's records indicated that Hill sent a
letter to the company drivers, dated July 13, and stating that the employ-
ees would be notified in the near future of a union meeting in Kenosha,
to establish a program for contract negotiations and assessment to cover
the cost of negotiations Alleged discnmmatee Donald Neal testified that
he did not recall seeing such a letter I find that the evidence fails to es-
tablish that such a letter was sent to the employees However, I find such
failure to be immaterial to the issues in this case FASH's constitution
provides a procedure for approval of special assessments However that
procedure refers to general membership meetings There is no established
or authorized procedure for assessments at company level drivers' meet-
ings
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Head of Bargaining Committee," a written memo
which was similar to the memo Kutzler gave to Webster
in early May The memo stated that as of August 3
Redway would no longer be bound by the terms and
conditions of the expired contract, and that Redway
would demand that the employees vote on a designation
of their bargaining representative before negotiations
could be resumed Kutzler sent copies to Reams, Shore,
and Richardt, and the employees showed the memo to
Dietsch Kutzler testified that he sent the memo in order
to get FASH to negotiate I credit Kutzler However, as
with the earlier memo, I find that the memo to Sims con-
tained an implied threat of withdrawal of recognition
and refusal to negotiate a contract with FASH.
The August 4 meeting was attended by 35 to 40 of the
approximately 60 unit employees Hill, Dietsch, and Sul-
livan were present. Sims opened the meeting and then
turned over the chair to Hill, who began by saying that
he, would get the wheels in motion for a FASH local.
However, Hill was obviously no amateur in the field of
union representation Hill soon changed the subject to
the matter of contract negotiations. Hill delivered, in
Dietsch's words, a "dynamic" speech He accused
i Kutzler of "screwing around," and called for a strike
vote to get Kutzler back to negotiations Hill went
through union proposal 2, item by item, and asked the
employees if this was what they wanted The employee
responses were favorable. Significantly, these proposals
included item 10 ("the union drops its proposal to elimi-
nate loading and unloading charges to owner opera-
tors"), and item 15 ("The Union accepts the Company's
offer to issue a detailed list of rules and regulations gov-
erning dispatch procedures to all drivers and dispatch-
ers") The employees, by a unanimous vote which was
accompanied by cheering and yelling,30 voted to author-
ize (1) a strike if the Company failed or refused to nego-
tiate or to withdraw its memo of August 3, (2) steady ne-
gotiations until an agreement was reached, and (3) an as-
sessment of $15 per employee to reimburse the negotiat-
ing committee 31 Sims testified that three or four em-
ployees, including himself, abstained during the voting If
so, it is evident that they did not make their positions
known Sims for once was stunned into silence, recogniz-
ing that Hill had carried the day Following the voting,
Dietsch telephoned Kutzler and informed him of the
m'embership's decision Kutzler agreed to withdraw his
August 3 memo and to commence negotiations on
Monday, August 6 Dietsch reported Kutzler's response
to the employees, who cheered their approval 32
30 There was drinking going on during the meeting However, this
was a common practice among the drivers
31 The latter motion did not specify to whom the money should be
paid However, the testimony of Sims and William Burton, the present
FASH steward, indicates that the employees understood that the assess-
ment moneys would be deposited in the Redway Drivers Fund, to reim-
burse the employee members of the negotiating committee for their lost
working time Moreover, such action would have been consistent with
the usual practice of depositing assessments in the Drivers Fund
32 1 credit the testimony of Dietsch concerning his conversation with
Kutzler, which was inferentially corroborated by Sims Sims testified that
he was asked to inform Kutzler of the results of the meeting, but he re-
fused, and Dietsch called Kutzler
I find that by their unanimous vote at the August 4
meeting. the employees unequivocally confirmed that
FASH was their collective-bargaining representative and
that the FASH representatives had full and complete au-
thority to proceed to negotiate a contract with the Com-
pany I would find such to be the case even if the
August 4 meeting had never been held Specifically, I
find that at no time prior to the commencement of nego-
tiations on August 6 was any valid question raised con-
cerning the continuing representative status of FASH I
credit the testimony of Sims and Shore to the extent that
some sort of petition was circulated among the employ-
ees in June However, neither the petition nor Sims' self-
serving assertions to Kutzler raised any question con-
cerning the continuing representative status of FASH
First, Sims circulated the petition in the context of em-
ployer unfair labor practice conduct, specifically,
Kutzler's memo to assistant steward Webster.33 I am not
persuaded that Kutzler, at any time prior to August 6,
actually either conditionally or unconditionally refused
to negotiate with Dietsch Rather, the course of conduct
followed by both sides during the interval between the
June and August negotiations indicates that they had ar-
rived at a tacit understanding that further contract nego-
tiations would not be warranted until FASH got its own
house in order by resolving the internal dissention which
had arisen . Therefore, prior to the August 4 meeting,
which achieved such resolution (at least temporarily)
FASH did not insist that Kutzler proceed with negotia-
tions with or without an internal resolution. However,
by making statements which could reasonably be inter-
preted by the employees as a refusal to recognize or bar-
gain with FASH, the Company engaged in unfair labor
practice conduct which precluded a valid question con-
cerning representation Second, regardless of the form of
the petition's language, it is evident from the testimony
of Sims and the surrounding circumstances that the em-
ployees who signed the petition understood or were led
to believe that the purpose of the petition was to put
pressure on FASH to charter a FASH local at the Com-
pany. This was a purely internal matter which in no way
derogated from the status of FASH as their bargaining
representative Even if the petition on its face called for
rejection of FASH (and I do not find the evidence to be
credible in this regard) the petition did not effectuate the
result because it was never shown to anyone but the em-
ployees. Neither the Company nor FASH had any
knowledge that such a petition existed. Therefore the pe-
tition amounted to nothing more than internal griping.
On August 4 the employees exercised their right to
change their minds by unequivocally indicating that they
regarded the whole matter of a separate local as subordi-
nate to and not a condition for the negotiation of a con-
tract I further find that even in the absence of the
33 Neither the memo to Webster nor the subsequent and similar memo
to Sims is alleged in the complaint as an unfair labor practice However,
in view of the present contentions of the Company, Teamsters, and Sims
that FASH did or may have lost its majority status prior to September
1979, 1 may properly determine whether the alleged loss of majority oc-
curred in the context of employer unfair labor practices which would
preclude any valid question concerning representation
REDWAY CARRIERS
August 4 meeting Hill and his designated representatives
Dietsch and Sullivan had full authority to negotiate a
contract with the Company As previously discussed,
Sims as chief steward was subordinate to President Hill,
who was the highest elected officer of FASH and its
chief executive Sims' authority, as spelled out in the
contract and in FASH's constitution, did not include the
right to negotiate a collective-bargaining contract 34
D Developments from August 6 Through September
I Contract Negotiations, the Alleged Contract, and
Alleged Threats and Interrogation
1 The August 6 to 8 negotiations
Contract negotiations commenced on August 6 and
continued through August 7 and 8 at Nino's Restaurant-
Motel in Kenosha.35 President Hill, who acted as
FASH's chief negotiator, was accompanied by Dietsch,
Sullivan, Sims, Webster, Wakeland, and (on August 8)
by employee William Cook, who on August 7 had re-
placed Wakeland as shop steward 36 Kutzler, who acted
as the Company's chief negotiator, was accompanied by
his son Frank W Kutzler, Company Comptroller
George Smith, and at times by William Broyles and Nor-
bert Pfiffer At the outset, FASH presented a letter in-
forming the Company of the special assessment which
had been approved at the August 4 meeting, and request-
ing that the moneys be deducted from employee pay and
turned over "to the Union" "Union Proposal #2," a 3-
34 Kutzler's August 3 memo contained threats which were violative of
Sec 8(a)(1) and (5) of the Act If the Company failed or refused to nego-
tiate with FASH, such conduct would also have violated the Act There-
fore FASH could have lawfully engaged in a strike, in accordance with
the strike vote of August 4, without regard to the notice provisions of
Sec 8(d) of the Act Mastro Plastics Corp v NLRB, 350 U S 270 (1956)
It follows that the Company cannot validly contend that it resumed con-
tract negotiations under the threat of illegal strike action
az Donald Neal testified that on the morning of August 6 Leroy Ri-
chardt showed him a memorandum from Kutzler, listing some 29 em-
ployees who were scheduled for indefinite layoff or transfer to Plymouth
(including Neal) as of August 10 Neal went to Kutzler, who confirmed
that Neal was scheduled for transfer Kutzler said he would not give
Neal time to think it over, but in fact he did Neal testified that 2 or 3
days later Kutzler told him that his transfer was unnecessary Neal in his
testimony admitted that in the interim the Ocean Spray strike had ended
Kutzler testified without contradiction that he intended to lay off or
transfer the employees due to lack of work caused by the Ocean Spray
strike, but canceled his decision when the strike ended The matter is not
alleged in the complaint, and I am not persuaded that it has any eviden-
tiary value with respect to the issues in this case
36 Sims, in his testimony, was vague as to just which side he was on
In form at least, Sims acted as a member of the FASH negotiating team
However on August 8, Kutzler caucused privately with Sims and Web-
ster Dietsch testified that after they caucused Webster told him that
Kutzler could not sign a contract with FASH because FASH was not a
union Webster testified that after Hill threatened a strike, Kutzler cau-
cused with the employees and told them that he checked with Washing-
ton and found that FASH was not a union Kutzler testified that Sims
told him that FASH was not a bona fide union, that he called Washing-
ton and found that this was true (in Kutzler's view) because FASH had
not filed annual reports with the Department of Labor, that he told the
employees that FASH was not a union but said that he would continue
to negotiate Sims did not testify about the matter I credit Kutzler's testi-
mony that Sims initially brought up the matter This was another instance
when Kutzler's actions spoke louder than his words Kutzler was willing
to use the matter as an accusation to counter Hill's threat of a strike
However Kutzler made clear that he would continue to negotiate with
FASH, and in fact he signed an agreement with FASH that same day
138.1
page document, was utilized as the basis for negotiations
The first page covered drivers, and the second and third
pages covered spotters and shop employees Each side
had copies of the document As they went through the
document, each side wrote in on its respective master
copy, changes, modifications, or deletions which were
agreed on Hill and Kutzler cross-checked and 'signed
each other's master copy Hill also initialed (on both
copies) each item on the first page. Hill and Kutzler each
signed the document as a "tentative agreement " Paul
Dietsch testified that the agreement was "tentative" be-
cause the parties understood that the agreement would
be presented to the drivers for ratification Kutzler testi-
fied in sum that the parties reached a "basic" but not a
complete agreement 37 Donald Sims testified that the
parties agreed on some things, and conditionally agreed
on others. In the first of his investigatory affidavits to
the Board, dated November 23, Sims stated that the par-
ties reached a tentative agreement, and that all that was
needed was ratification. However, in the affidavit Sims
explained that he did not consider the agreement as a ne-
gotiated contract, but simply as a "want list " In a sense
Sims was correct It is evident from the testimony of
Dietsch and Kutzler, who were the principal witnesses
to the negotiations, that the 3 days of negotiations failed
to develop any area of disagreement which was not re-
solved by the parties. For example, after some discussion
the Company dropped a proposal which would have al-
lowed a lower rate of pay for Montgomery-based driv-
ers However, I do not agree with the General Counsel
that the parties actually arrived at a collective-bargaining
contract during the August 6 through 8 negotiations
Rather, the parties reached substantial but not complete
agreement on a contract Some of the areas of agreement
will be discussed in detail in connection with specific
topics, e g , the spotting fee and rules governing dispatch
procedures The parties agreed on an effective date of
September 1, and nothing was said about retroactivity
However the parties did not discuss or agree on the con-
tract duration One or both of the parties may have con-
templated a 2-year contract, but in the absence of further
discussion or agreement this was still an open matter
The August 8 agreement consisted of a list of agreed-
upon additions and modifications to the 1976-1978 con-
tract and some agreements not to change the contract in
certain respects. Some of these agreements did not re-
quire any change in the 1976-1978 contract, e g., "The
union drops its proposal for holiday pay " Other agreed-
upon items were e.her phrased in contract language or
required only minimal and mechanical revision for that
purpose. However not every item was so easily suscepti-
ble of redrafting Item 15 on page 1, as revised, provid-
ed "The Union accepts the Company's offer to issue a
detailed list of rules and regulations governing dispatch
procedures to all drivers [not a strike issue]." The only
written company "offer" to this effect consisted of item
15 of the Company's counterproposal to FASH's original
37 Unfortunately, Kutzler's testimony in this regard was marked by
interruptions and leading questions by company counsel, who was evi-
dently determined to lead Kutzler in the direction of counsel's own
theory of the case
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proposal, viz, "list as demanded, with provision herein,
no changes unless requested in writing " FASH's original
proposal provided "There shall be a detailed list of the
rules and regulations governing dispatch procedures to
be followed by dispatchers and drivers and it shall be at-
tached to this contract A copy of the list shall be issued
to all dispatchers and drivers " Article 26 of the 1976-
1978 contract provided that "There shall be attached to
this Agreement a rider which shall be Company rules,
and dispatch procedures " Such a rider was attached to
the 1976-1978 contract. No such list was attached to the
August 8 agreement. It is evident that any revision of the
August 8 agreement !nto contract language would in-
volve the exercise of discretion, and that as phrased in
the August 8 agreement , item 15 was susceptible of more
than one interpretation. In fact, as will be discussed,
Kutzler and Dietsch, in their September 1 negotiations,
did agree to a revised version of FASH's redraft of item
15
The August 8 agreement provided that: "The Compa-
ny shall make payments into the Union' s pension plan for
all drivers." The parties added. "90 00 per month." The
agreement on shop personnel and spotters further pro-
vided that "The Company shall pay into the Union's
pension fund for all shop personnel Shop will be cov-
ered by Co Health Care Union will try to get dental for
shop." The 1976-1978 contract provided for a sliding
scale of employer and employee payments to the health
care fund in the event that the driver failed to maintain
"an average weekly gross revenue of $500 00 per quarter
year." Kutzler testified that in the August negotiations
the parties orally agreed on a sliding scale, but did not
work out such a scale, and that he and Dietsch disagreed
as to the manner of computing the employee contribu-
tion under the health care plan William Hill, who did
not testify in this proceeding until he was presented as a
rebuttal witness for the General Counsel, testified that
the parties verbally agreed that with respect to the pen-
sion plan, they would follow the schedule for the health
care plan (which provided for employer payments of
$116.71 per month per each regular employee) including
the provision for payment of an administration fee, and
that they further agreed that "gross revenue" meant
truck revenue. I credit Kutzler's testimony that they ver-
bally agreed that there would be a sliding scale If not, it
is unlikely that Dietsch and Sullivan would have subse-
quently gone to the trouble (as they did) of preparing
such a schedule, which operated to the Company's bene-
fit However, I do not credit Kutzler's testimony or im-
plication that they disagreed on any contract language. If
such a disagreement had surfaced during the August ne-
gotiations , then it is evident from the parties' overall
course of conduct that they would have continued to ne-
gotiate until the problem was resolved. If Dietsch and
Kutzler were aware of such a difference of opinion at
that time, then it is probable that they preferred to let
the contract language speak for itself (as they had done
with the health care provision) I also do not credit the
testimony of Hill to the effect that they agreed on every
jot and tittle of the pension provision If so, the parties
probably would have reduced their agreement to writ-
ing, particularly with respect to such an important
matter as the meaning of "gross revenue "38
It follows from the foregoing discussion that I do not
credit the testimony of Hill that no changes or additions
were needed after August 8, other than "some commas
and things, and how this would be fit into the provisions
of the old contract." Rather, I credit Kutzler's testimony
that Dietsch agreed to "flush out" the language of their
agreement Indeed Kutzler's testimony was inferentially
corroborated by Dietsch, who testified that he went to
the Kenosha terminal about August 25 to discuss with
Kutzler the "full language to flush out the meaning of
those negotiated proposals "
2. Alleged violations of Section 8(a)(1), and other
interim developments
Page 1 of the August 8 agreement (covering drivers)
provided for overtime pay at 1-1/2 times the hourly rate,
overtime being defined as all time over 8 hours per day
or 48 hours per week. Page 3 provides for time-and-a-
half pay for all work over 40 hours. Dietsch's notes (but
not the signed copies of the agreement) indicate that the
former provision was intended to apply to spotters, who
are the only drivers who normally receive an hourly
wage, and that the latter provision covered shop employ-
ees. In August, alleged discrimmatee Alan Broyles was
working as a spotter, and putting in as much as 65 to 70
hours per week at straight time . Broyles testified that on
August 11 he was summoned to Kutzler's office Broyles'
father, Safety Director William Broyles, was also
present. According to Broyles,39 Kutzler asked him if he
was going to the contract ratification meeting which was
scheduled for that day (Broyles testified at one point
that he said he was going, and at another that he said he
did not know). Kutzler asked Broyles if he knew what
FASH was asking Broyles said he did not. Kutzler said
that FASH was asking time-and-a-half for overtime, and
that Kutzler would hire another spotter to work the
overtime hours that Broyles was putting in, rather than
pay time-and-a-half. Kutzler also reminded Broyles that
when he was hired they agreed that Broyles would not
receive overtime pay Broyles said that he could not earn
enough money on straight time, i.e, a 40-hour week, and
would go to the meeting and complain about the provi-
sion . Kutzler suggested that he write a letter, and
Broyles agreed. Broyles and his father prepared the
letter, and at the father's suggestion, a copy was placed
in Broyles' personnel file Broyles presented his letter at
the ratification meeting, but did not speak in support of
his position. The letter stated that Broyles protested the
48-hour overtime provision, that he was not consulted
about it although he was the only employee "in this cate-
gory," and that he disagreed with overtime pay Kutzler
testified that between August 8 and 11 Broyles ap-
proached him, asked Kutzler's position on what was ne-
38 Hill piously testified that he categorically rejected a lower pay rate
for Montgomery In fact, as admitted by Dietsch in his testimony,
Dietsch started to prepare a "letter of agreement for southern territory"
but Kutzler decided to drop the proposal Generally, I have not found
Hill to be a credible witness with respect to the August negotiations
3s Broyles herein refers to Alan Broyles, unless otherwise indicated
REDWAY CARRIERS
gotiated, and complained that he did not want overtime
in his job because his hours would be cut. Kutzler re-
sponded that he could not negotiate an individual con-
tract According to Kutzler, Broyles said that he wanted
to make his views known, whereupon Kutzler suggested
that Broyles put his views in writing, and his father
would put a copy in Broyles' file
After September 1, Broyles continued to work over-
time hours at straight pay Broyles told Paul Dietsch that
he would not sign a grievance because he had an agree-
ment with Kutzler that he would not receive overtime
pay However about November 6, Kutzler asked him if
he was getting overtime pay Broyles said that he was
not Kutzler said that this was a contract violation which
should be corrected, and so informed payroll preparer
Pfiffer The next payday Broyles received overtime pay
retroactive to September 1 Edward Shore, who began
working as a spotter in mid-October, testified that he
also began receiving overtime pay in early November
Shore testified that he did not complain to the Company,
but did mention the matter to Leroy Richardt, who said
that he complained about not getting overtime pay, and
thereafter received such pay These developments will be
discussed further in connection with the alleged Septem-
ber 1 contract and contract violations
Returning to August, the complaint alleges (C(1) and
(2)) that on August 11 Kutzler violated Section 8(a)(1)
by interrogating "employees" (meaning Broyles) regard-
ing union activities, and "threatened employees with
withholding time and a half pay for overtime work as a
reprisal for their union activities " I credit Broyles' testi-
mony to the effect that Kutzler initiated their conversa-
tion. The evidence fails to indicate that, as of the time of
the conversation, Broyles either knew the specifics of the
overtime provisions or knew with any degree of certain-
ty whether in light of that provision Kutzler would con-
tinue to hold Broyles to their prior understanding that
Broyles would not receive overtime pay Therefore it is
unlikely that Broyles would start out by stating his own
position, without first ascertaining Kutzler's position.
However, I find that Kutzler did not unlawfully threaten
or interrogate Broyles An employer does not violate the
Act by telling employees (as here) that, if a union negoti-
ates an overtime provision in their contract, he will hire
more employees rather than pay the overtime. Dan
Howard Mfg. Co., 158 NLRB 805, 812 (1966), enfd as
modified in other respects 390 F.2d 304, 307 (7th Cir
1968); see also Morse's Foodmart, 230 NLRB 1092, 1099
(1977); Bartley Co, 170 NLRB 616, 618 (1968), enf
denied on other grounds 410 F.2d 517 (6th Cir. 1969).
This is not the kind of situation where an employer
equates unionization per se with loss of overtime or
other work The Board has consistently found such state-
ments to constitute unlawful threats. See Bartley, supra,
and Wausau Steel Corp., 160 NLRB 635, 640 (1966),
enfd 377 F.2d 369 (7th Cir 1967). (It might be noted
that Frederick U. Reel was the trial examiner in both
Don Howard and Wausau Steel.) In the present case, as in
the comparable situations cited above, the employer's
statement was based on "objective fact," namely an
overtime provision which was proposed by the Union.
Cf NLRB v. Gissel Packing Co., 395 U.S 575, 618
1383
(1969) An employer may, in a nondiscriminatory
manner, absent a contractual restriction, hire more em-
ployees in order to avoid the impact of a contractual
overtime provision The circumstances fail to indicate
that Kutzler was threatening to take discriminatory
action against Broyles or any other employee Kutzler
spoke to Broyles because, as Broyles himself acknowl-
edged, he was at that time the only employee who
would likely be affected by the overtime provision
Kutzler did not either say or imply that his policy would
be affected by Broyles' attendance, nonattendance, or
manner of participation in the ratification meeting It was
Broyles, and not Kutzler or William Broyles, who first
suggested that Broyles make his views known at the rati-
fication meeting As for the alleged interrogation, it is
evident that Kutzler's questions were simply preliminary
to his statement of position regarding overtime Kutzler
had a legitimate reason for questioning Broyles, namely,
he wanted to know whether Broyles was aware of the
overtime provision It is further evident that Broyles was
not trying to coerce Broyles either into attending or not
attending the ratification meeting Rather Kutzler was
making known his own lawfully stated position, and let-
ting Broyles make up his own mind as to what he should
do. Therefore, I am recommending that these allegations
of the complaint be dismissed.
On Saturday, August 11, a ratification meeting was
conducted at Howard Johnson's in Kenosha About 40
of the approximately 60 unit employees attended the
meeting 40 Sims, as usual, chaired the meeting (Sims tes-
tified that he was "suckered" into doing so) Dietsch and
Sullivan (but not Hill) were present Dietsch, Sullivan,
and Sims presented a statement and explanation of the
August 8 agreement, and answered questions The state-
ment did not refer to those FASH proposals which had
been withdrawn. However, as previously indicated, Wil-
liam Hill referred to those items at the August 4 meeting.
The FASH negotiating team, including Sims, signed a
written statement to the effect that they reached a tenta-
tive contract agreement on August 8, and recommended
its ratification. In light of this fact I do not credit Sims'
testimony that he spoke against the agreement or ab-
stained from voting on the agreement I also do not
credit his testimony that eight or nine employees walked
out of the meeting (unless it was for the purpose of ad-
journing to the bar or the washroom) The employees,
with only one dissenting vote (Gary Jenkins), voted to
ratify the agreement Dietsch informed Kutzler, who said
that he was pleased At no time during the meeting did
Sims or any other employee protest the manner of the
meeting, or allege that Dietsch and Sullivan had misrep-
resented the agreement On August 8 Hill told Kutzler
that their agreement would be presented to the drivers
for ratification. However, at no time did Fash and the
Company expressly agree that ratification was a condi-
40 Twenty-eight employees entered their names on the sign-in sheet
Paul Dietsch testified that some of the employees who were present did
not sign the sheet I credit Dietsch It was a common practice for em-
ployees to walk in and out and back into the meeting Alan Broyles pre-
sented his protest letter at the meeting However his name does not
appear on the sign-in sheet
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion for the further negotiation or execution of a collec-
tive-bargaining contract Therefore, regardless of past
practice, ratification was not such a condition C & W
Lektra Bat Co, 209 NLRB 1038 (1974), enfd 513 F 2d
200 (6th Cir 1975) Even if the Company and FASH
had agreed to ratification as a condition, the August 11
meeting would have constituted adequate compliance
with that condition NLRB v M & M Oldsmobile, 377
F 2d 712, 717 (2d Cir 1967) Moreover, even if FASH
had materially misrepresented the actual agreement (and
the evidence fails to so indicate), that fact would not
have operated to preclude or nullify any contract, al-
though the employees might have sought other remedies
against FASH Cf Charles Anderson v Paperworkers, 641
F.2d 574 (8th Cir 1981)
Donald Sims testified that after the August 11 meeting
he began working on a petition and circulated the peti-
tion among the employees in August and September.
The petition, which is dated September 6, was presented
in evidence The petition stated in sum that the under-
signed employees did not accept or ratify any contract
with FASH or recognize Paul Dietsch as their FASH
representative, that they protested Steel Haulers domina-
tion of FASH, that "we are the Fraternal Association of
Special Haulers," and that they wanted their own local
and to elect their own officers and representatives The
petition purports to have been signed by 43 employees.
David Roy, who was presented as a witness for Sims,
and whose signature is listed first on the petition, testi-
fied that he probably signed the petition on September 4.
I find that Sims prepared the petition after September 1
and circulated the petition during the first week of Sep-
tember I further find that as with the prior petition, the
September 6 petition did not call for rejection of FASH
as bargaining representative and, indeed, restated the em-
ployees' adherence to FASH.
On August 18 Sims formally resigned as FASH stew-
ard About August 25 Paul Dietsch, accompanied by
Edward Shore, came to the Kenosha terminal to present
the "flushed out" language in the form of a rough con-
tract draft Kutzler told Dietsch that he was not satisfied
with the draft and wanted the contract language fully
flushed out Dietsch agreed to return the next week.
Dietsch and Sullivan then prepared papers with "flushed
out" language, based on their understanding of the
August 8 agreement, and returned to the terminal on
September 1
3. The September 1 negotiations and the alleged
contract
The alleged contract which was executed on Septem-
ber 1 (G C Exhs 18(a)-(e)) consists of a series of docu-
ments which, as presented in evidence at the hearing,
were stapled together in the order described herein The
first (G C Exh 18(a)) consists of a document which was
signed by Kutzler and Dietsch, witnessed by the others
present, and dated September 1. The document states as
follows.
The representatives of Redway Carriers, Inc and
the Fraternal Association of Special Haulers Union
meeting on the 1st day of September, 1979 and
having completed negotiation of a new labor con-
tract between the parties do hereby agree to enter
into a contract beginning September 1st, 1979 and
ending August 31st, 1981
This agreement shall be based on the parties initial-
ing and dating rough draft copies describing
changes, qualifications and new articles that shall be
integrated into pre-existing contract that began the
1st day of September, 1976 and ended August 31st,
1978
The next two sheets (G C Exh. 18(b)) consist of unnum-
bered contract articles, with numbered sections, i e ,
"flushed out" language, covering FASH's understanding
of the agreements covering the drivers, except for the
pension plan, which is set forth in full, including a sliding
scale of employer and employee payments on a separate
sheet (G C Exh. 18(c)) The next three sheets (G.C.
Exh 18(d)) consist of an "addendum" containing num-
bered contract articles covering shop employees and
other hourly personnel The last attachment is a copy of
the 1976-1978 contract as renegotiated (G C Exh 18(e))
The first page of General Counsel Exhibit 18(b) contains
Paul Dietsch's initials in the upper left-hand margin, in-
serted changes in three articles (detention and handling
charges, vacation time pay, and posting of bid jobs), with
the initials of the participants to the September 1 negotia-
tions opposite the first change (a partial deletion). The
remaining changes, which relate to vacation time pay
and bid jobs, are typed, except for a circle and arrow
which indicates the proper placement of section 4 under
vacation time pay The second page of General Counsel
Exhibit 18(b) contains in handwriting an additional sec-
tion (3) to the article covering rules and regulations gov-
erning dispatch procedures This addition was also ini-
tialed by the participants. General Counsel Exhibit 18(d)
contains Paul Dietsch' s initials in the upper left margin
of the first page, and Kutzler's initials at the bottom of
the last page No other signatures, initials, or changes
appear on General Counsel Exhibits 18(b), (c), or (d)
Both General Counsel Exhibits 18(b) and (d) are dated in
handwriting "September 1, 1979."
The participants in the September I negotiations were
Dietsch, Sullivan, Richardt, and Shore for FASH, and
Kutzler and Scott Kutzler for the Company Sims and
William Broyles were present during part of the negotia-
tions Dietsch and Kutzler were the principal negotia-
tors Dietsch testified that he first presented General
Counsel Exhibits 18(b), (c), and (d), and that each partic-
ipant had a working copy. According to Dietsch, they
proceeded to go through the documents article by arti-
cle, seriatim They agreed with respect to the article on
detention and handling charges that part of the language
would in practical effect be superfluous and therefore
agreed to delete that language Kutzler approved the re-
mainder of the first page Scott Kutzler inserted the
circle and arrow to indicate the proper placement of sec-
tion 4 under vacation time pay, which like section 3
under posting of bid jobs had previously been typed in
by Sullivan as additions to General Counsel Exhibit
18(b) They next proceeded to the second page Kutzler
REDWAY CARRIERS 1385
agreed to all articles, except with respect to rules and
regulations governing dispatch procedures (the last arti-
cle on the page), he proposed and Dietsch agreed to the
additional section 3, which was written in and then ini-
tialed by the parties However, before they initialed this
addition, Shore requested a conference of the union side
Shore vehemently protested the provisions of the article,
but Dietsch persuaded him to go along with the article
They next proceeded through General Counsel Exhibits
18(c) and (d) Kutzler found no problems, and entered
his initials at the bottom of the last page to indicate his
approval of all General Counsel Exhibits 18(b), (c), and
(d) as revised. Dietsch then presented General Counsel
Exhibit 18(a), which confirmed that they had arrived at a
contract, and all present signed General Counsel Exhibit
18(a) Thereafter, Dietsch stapled together General
Counsel Exhibits 18(a) through (e) in its present form
and presented the document to the Board's Regional
Office as a contract bar to the election petition filed by
UTA on September 10. George Sullivan, in his testimo-
ny, substantially corroborated Dietsch's version of the
negotiations.
Kutzler gave a sharply different account of the negoti-
ations However, his testimony regarding the negotia-
tions was in some respects confused and contradictory.
According to Kutzler, Dietsch first presented General
Counsel Exhibit 18(a) Dietsch explained that General
Counsel Exhibit 18(a) was simply an agreement to agree,
and that he needed the document in order to show the
employees that the parties were still negotiating, and that
FASH was doing something. Kutzler testified that Ri-
chardt and Shore were reluctant to sign the document,
but agreed to do so when he assured them that they
would be in on future negotiations Dietsch next present-
ed General Counsel Exhibits 18(b), (c), and (d). On his
direct examination as a company witness, Kutzler testi-
fied that they began with General Counsel Exhibit 18(d).
Kutzler found nothing wrong with these articles. There-
fore Dietsch initialed the first page and Kutzler initialed
the last page However on cross-examination Kutzler tes-
tified that he objected to article 9 (pension payments) be-
cause it tied into the same pension plan provided for the
drivers, and also objected to the provision for health
care benefits for spotters (art. 11, sec. 4) for a similar
reason. On direct examination, Kutzler testified that they
next went to General Counsel Exhibit 18(b) According
to Kutzler, they worked out the change previously dis-
cussed with regard to detention and hauling charges
However, Kutzler found that he also could not agree to
the next provision At Kutzler's request, they went to the
last article covering drivers rules and regulations, which
had attracted Kutzler's attention Dietsch agreed to
Kutzler's proposed section 3 However they disagreed as
to the meaning of the article Kutzler said that he would
issue rules and then negotiate, but Dietsch said that the
Company should first submit its proposed rules to the
Union They returned to page 1, but at this point Shore
interposed his objections to the article They again went
back to the first page, but at this point Kutzler figura-
tively threw up his hands (On cross-examination,
Kutzler testified in essence that they proceeded through
G C Exhs 18(b), (c), (d), and (e) in that order.) Kutzler
testified that he told Dietsch that he expected proper lan-
guage but that the proposed contract was not written
properly , that there were many things on which they
had not agreed , and there was no sense in going further.
Dietsch agreed that he would once again go back, flush
out the language , and return , but they did not set a
schedule for that purpose According to Kutzler , Dietsch
said that he would make 300 copies of the proposed con-
tract and distribute them to the employees but Kutzler
said that Dietsch should first bring his revised draft to
Kutzler . Kutzler testified that there was no agreement on
the balance of General Counsel Exhibits 18 (b) or (c) (the
pension plan), and specifically testified that he did not
agree to the provision for employer payment of a 5-per-
cent administration charge However, as previously dis-
cussed , Kutzler admitted on his direct testimony that he
agreed to General Counsel Exhibit 18(d) (covering
hourly personnel ) and that the addendum expressly pro-
vided for a pension plan with a 5-percent administration
charge Edward Shore, who was presented as a company
witness, corroborated Kutzler's account in several cru-
cial respects , including Kutzler's testimony to the effect
that the September 1 negotiations did not result in an
agreed-upon contract None of the other individuals who
were present testified concerning the substance of the
September 1 negotiations
Kutzler further testified by way of explanation con-
cerning his subsequent actions in implementing the al-
leged contract , which actions prima facie at least, would
tend to indicate an acknowledgment by Kutzler that he
had negotiated a contract with FASH . Kutzler testified,
in sum, that he did not believe that there was a contract
in effect between the Company and FASH According
to Kutzler , the Regional Director issued his order dis-
missing the first UTA petition without the benefit of the
Company's position as to whether there was a contract
When Kutzler received the order , he consulted his attor-
ney, who was not a labor relations specialist . The attor-
ney advised Kutzler that the Board found a valid con-
tract Kutzler interpreted the Regional Director's
"order" as just that, i.e., an order of the Board Kutzler
thereupon proceeded to implement the alleged contract
in accordance with his understanding of what had been
agreed to by the parties in the August and September 1
negotiations . When Kutzler received the Regional Direc-
tor's telegram of October 26 revoking the prior order,
Kutzler consulted his present counsel, who is a labor re-
lations specialist, and Kutzler thereafter reverted to his
previous position that there was no contract. However,
on the advice of counsel , Kutzler did not make any
changes in the existing conditions of employment until
after the election.
Neither version of the September 1 negotiations is in-
herently incredible On their face , the documents com-
prising General Counsel Exhibit 18 could support either
version . Indeed , it is probable that Sullivan intentionally
worded General Counsel Exhibit 18(a) to allow for
either eventuality , as he had no way of knowing whether
a final contract would be negotiated on that date. I
credit Kutzler 's explanation for his actions following re-
ceipt of the Regional Director 's order of September 17.
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As will be discussed, the evidence adduced in this pro-
ceeding corroborates Kutzler's assertion that about Sep-
tember 20 he began to implement changes in terms and
conditions of employment in accordance with his under-
standing of the alleged contract with FASH 41 Howev-
er, for reasons which will now be discussed, I credit
Dietsch's version of the September 1 negotiations, and I
find that regardless of Kutzler's subjective opinions
(which will also be discussed) the September 1 negotia-
tions resulted in a final and binding contract between the
Company and FASH, specifically, General Counsel Ex-
hibits 18(a)-(e), and that Exhibits (b), (c), and (d) are the
"rough draft copies" referred to in General Counsel Ex-
hibit 18(a)
First, Kutzler's inconsistencies in his version of the
September 1 negotiations tend to impeach his overall ac-
count of those negotiations There are no comparable in-
consistencies in the testimony of Dietsch and Sullivan.
Second, there is uncontradicted evidence of certain ad-
missions made by Kutzler which tend to indicate that as
of September 1 he understood that a contract had been
negotiated between the Company and FASH In mid-Oc-
tober, Kutzler tape recorded most of a lengthy telephone
conversation between himself and George Sullivan. The
tape and a transcript thereof were presented in evi-
dence.42 The following is an excerpt from their recorded
conversation-
Dick . No, but all the attorney can do is go by the
written law Now if you say we typed this but
meant that and you go to the help and say you're
gonna get this but we typed that, that don't stand.
You guys dictated a contract , you forced a contract
down the company 's throat, we 're gonna live by it
You knew you forced that contract down my throat
when I told you that I was protesting the negotia-
tions. I knew then you guys were in trouble
George. Oh
Dick You remember when I made the statement
that this contract has been negotiated under duress.
George Ya , I know.
Dick: Alright.
George I remember you sayin' that.
Dick- Alright.
George- All contracts are negotiated under
duress
41 Normally, there is a presumption of administrative regularity, i e ,
that an administrative agency follows its own procedures Philip Fusco v
Kaase Baking Co , 205 F Supp 465, 479 (N D Ohio 1962) However the
presumption may be rebutted Administrative agencies are not infallible
They can and do sometimes make mistakes and fail to follow their own
procedures See, e g, Madden v Masters, Mates & Pilots , 259 F 2d 297
(7th Cir 1958) In the present case , Kutzler testified without contradic-
tion that the Regional Office did not ascertain his position before the Re-
gional Director ruled that there was a contract bar His testimony is cor-
roborated by the Region ' s own actions If Kutzler had disputed the exist-
ence of a contract , then the Regional Director would have scheduled
UTA's petition for a hearing On the other hand , if Kutzler had admitted
the existence of a contract , then there would have been no need for the
Regional Director to subsequently revoke his order of September 17 1
find that the Regional Office did not ascertain the Company ' s position
before dismissing UTA's first election petition
42 In accordance with the General Counsel 's request , I listened to the
tape recording after the hearing
Dick. Especially when you have a phoney strike
threat hanging over your head Well, you best
better have Dietsch call me so that we can find out
what he thinks the contract reads.
George. Okay
Dick Because I know what the contract does
read, I want to know what he thinks it reads
In the foregoing conversation , Kutzler unequivocally
acknowledged that as of September 1 he understood that
the parties had negotiated a contract As will be dis-
cussed, Kutzler's reminder of his prior statement that
"this contract has been negotiated under duress," can
only refer to a statement which he made at the Septem-
ber 1 negotiations . Kutzler did not make any comparable
statement (at least not in Sullivan's presence) at any
other time His acknowledgment further tends to cor-
roborate the testimony of Dietsch and Sullivan concern-
ing Kutzler 's remarks on September 1
Third, Kutzler's testimony concerning the September 1
negotiations was not corroborated by Scott Kutzler, who
was present throughout and participated in the negotia-
tions Scott Kutzler was presented as a company witness,
and testified about several aspects of the case, including
some which were relatively minor, but he conspicuously
failed to testify about the September 1 meeting, which
presents one of the major if not the most important fac-
tual issue in this case . The inference is warranted that if
Scott Kutzler had testified truthfully concerning the Sep-
tember 1 negotiations , his testimony would have been ad-
verse to the Company's interests . Martin Luther King Sr.
Center, 231 NLRB 15 fn 1 (1977) A fourth consider-
ation concerns the testimony of Edward Shore, which
was at least impliedly contradicted by an investigatory
affidavit which he gave to the Board on February 6,
1980 In that affidavit (par. 6) Shore described the nego-
tiations as follows.
I'm familiar with the agreement signed by FASH
and Redway on September 1, 1979. I was present as
a member of the FASH bargaining committee and
did in fact sign the agreement for the Union
(FASH) I understood this to be a tentative agree-
ment pending ratification by the rank-and-file. At
this September 1, 1979 meeting Paul Dietsch
[FASH representative ] said, "Some of the proposals
in the Articles would have to be defined in good-
faith between the union & company " Leroy Ri-
chardt brought up the wording of the drivers rules
proposal to Dietsch . Leroy felt that FASH was
leaving too much to the dictates of the company.
Dietsch 's answer was , "Well that will be defined in
good faith with the understanding we've always
had with the company." I told Dietsch , "You know
we've talked about this before and you've written it
three times and each time you haven't written ac-
cording to what we want."
Apart from the fact that some crucial aspects of Shore's
testimony are not reflected in his affidavit version of the
negotiations , the overall tenor of that version reflects
that notwithstanding the reservations expressed by Shore
REDWAY CARRIERS
and Richardt, and notwithstanding his mistaken assump-
tion that there would be another ratification meeting,
Shore understood that the Company and FASH had ar-
rived at a contract Mindful of the Company's argument
concerning the investigation, I have carefully reviewed
the entire affidavit That affidavit covers a range of
topics, and contain assertions of fact which are favorable
to the Company's position as well as some which are un-
favorable The affidavit appears to have been taken in an
objective and impartial manner Shore was opposed to
the contract, and subsequently became an outspoken
Teamster adherent. It is unlikely that he would have ap-
proved and signed a false statement which was favorable
to FASH I find that the affidavit tends to impeach
Shore's testimony at the hearing, and may also be used
as substantive evidence against the Company 43
A final consideration concerns the remarks which
were made by Kutzler at the close of the September 1
meeting, to which Kutzler alluded in his subsequent tele-
phone conversation with Sullivan Dietsch and Sullivan
testified in sum that upon signing General Counsel Ex-
hibit 18(a), Kutzler's attitude abruptly changed He went
into a tirade Kutzler admitted that they had a contract,
but asserted that the union representatives did not know
the first thing about negotiating a contract, that he was
going to take the contract and "stick it up their asses and
the drivers' asses," that nobody could put a gun to his
head and force him to negotiate a contract, and that he
would teach them a lesson. Dietsch asked, "what about
good faith?" and Kutzler responded that good faith was
"out the window " Kutzler displayed a list of drivers'
rules (to be discussed, infra) which Dietsch recognized
and without further comment put the rules aside.
Kutzler, in his testimony, was vague and shifting about
just what he told Dietsch and Sullivan, but he admitted
in essence that he used language and phrases similar or
identical to those described by the union representatives.
I credit Dietsch and Sullivan I find that Kutzler ac-
knowledged that he had a contract with FASH Kutzler
may have thought that FASH would prepare a contract
in final form, or that there would be another ratification
meeting It is also possible and indeed probable, that with
the storm of employee discontent that shortly arose,
Kutzler opted to await further developments However
there was no agreement that the September I contract
was executed subject to employee ratification As matters
turned out, the September 1 contract substantially com-
prised the August 8 agreement, but was reduced to con-
tract form. Therefore Dietsch evidently saw no need to
call another ratification meeting.44 As the Company and
FASH agreed on the written language of their contract,
it is immaterial that the contract did not take the form of
a single, self-contained document Bendix Corp, 210
NLRB 1026 (1974). Whether the employees liked it or
41 See Alvin J Bart & Co, 236 NLRB 242 (1978), revd on other
grounds 598 F 2d 1267, 1271 (2d Or 1979) Notwithstanding my ruling
that Shore was not an adverse witness, company counsel persisted in
asking him leading questions on his direct examination This further tends
to undercut the value of Shore's testimony
44 Dietsch subsequently announced a drivers' meeting for September 8
However the evidence fails to support Teamsters' argument (Br 11) that
Dietsch intended to take another ratification vote at that meeting
1387
not, FASH and the Company were parties to a valid, 2-
year collective-bargaining contract, and the employees
were bound by that contract
The General Counsel contends (complaint, C(14)) that
by his remarks on September 1, which were made in the
presence of employees, Kutzler violated Section 8(a)(1)
of the Act by threatening employees with contract repu-
diation because of protected concerted activities I do
not agree. Kutzler was conveying a message similar to
that which he conveyed to Alan Broyles in August, al-
though this time he used stronger, more colorful and all-
encompassing language Kutzler realized, as did Sims and
Shore, and eventually a growing number of other em-
ployees, that in their belated haste to negotiate a contract
and thereby mollify employee discontent, the FASH offi-
cials, whether knowingly or unwittingly, had bargained
away favorable terms and conditions of employment
which had been achieved through the efforts of Sims and
his fellow employees Hill and Dietsch failed to heed the
warnings of Sims and Shore in this regard I find in light
of the negotiations (some aspects of which have not yet
been discussed herein) and of related developments that
Kutzler, although using strong and colorful language,
was simply and lawfully informing Kutzler that he in-
tended to exercise the Company's prerogatives under the
newly negotiated contract It is evident that the two em-
ployees who were present (Shore and Richardt) knew or
had reason to believe that Kutzler was referring to this
right to impose new or different drivers' rules There-
fore, I am recommending that this allegation of the com-
plaint be dismissed
The September 1 contract presents questions concern-
ing the meaning and application of several of its provi-
sions. The presence of such questions, even if openly ex-
pressed by the parties, does not preclude the existence of
a contract. However, in order to resolve certain allega-
tions of the complaint, it is necessary to resolve such
questions of interpretation With this in mind, I shall next
proceed to take up the allegations of contract violations
and unilateral changes
E Developments After September 1, 1979
1 Alleged contract violations and unilateral
changes and related alleged threats
a Tax deductions and social security payments
The 1976-1978 contract provided (art. 16, sec 2) that-
. . commencing on January 1st of 1978 the Com-
pany will pay Social Security taxes, compensation
insurance, and all taxes it must pay according to
state or federal law regarding employees, and main-
tain payroll deductions in accordance with state and
federal law for all drivers.
The same provision has been carried over without
change into the present contract The complaint alleges
(B(1)) that since September 1, 1979, the Company has
unlawfully refused to make tax deductions from owner-
operators' paychecks and failed to pay Social Security
taxes Specifically, the General Counsel contends that
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Company has (1) engaged in "double dipping" by de-
ducting from the paychecks of the owner-operators (who
are employees under the Act) both the employer and
employee share of Social Security taxes, and (2) by fail-
ing to automatically deduct Federal and state taxes from
the owner-operators' paychecks It is undisputed that
since January 1, 1978, the Company has not substantially
changed its payroll practices, insofar as pertinent to these
allegations, that no pertinent change occurred about Sep-
tember 1, 1979, that FASH never protested those payroll
practices, and that no pertinent grievances were present-
ed to the Company
In support of the first contention, the General Counsel
relies principally on two settlement sheets (i e., payroll
statements) for owner-operator Emanuel Richardson, and
testimony of payroll preparer Norbert Pfiffer (called
without advance notice as a General Counsel witness)
and of Richard Kutzler The settlement sheets (G C
Exhs 47(a) and (b)) are for the payroll periods ending
March 29 and April 26, 1980, respectively The difficulty
with this contention is that it is factually incorrect The
current collective-bargaining contract provides that
"owner operators will be paid 65 percent of gross reve-
nue." Article 16, section 1 of the 1976-1978 contract fur-
ther provides (in a provision which remains unchanged)
that
There shall be one method of pay under this contract
and it shall be based upon a percentage of the gross
revenue paid to the Company for the transportation of
a load.
Richardson's settlement sheets indicate that 65 percent of
company gross revenue for those pay periods was
$2744.81 and $1160 51, respectively. The settlement
sheets contain tabulations of the "net due truck owner"
and "net pay due driver " In the case of an owner-opera-
tor, the truck owner and the driver are the same person.
Each tabulation contains an equal amount deducted for
social security The General Counsel contends that these
dual deductions constitute "double dipping " The Gener-
al Counsel points out that the social security tax rate for
employee income in 1979 and 1980 was 6 13 percent of
the employees' wages, paid by the employees, and an
equal amount paid by the Employer, and that the total
social security tax deductions equal 12 26 percent of
"drivers gross pay," or (according to the argument) the
combined total of the employee and employer contribu-
tions to social security However, this argument over-
looks the fact that the owner-operator's net wages are
apportioned between the "truck owner" and "driver"
tabulations If Richardson received only the net pay due
driver, it would indicate that he was only a driver and
not an owner-operator, and therefore paid a minimum of
27 percent of gross revenue, as provided in the contract
Compare the settlement sheet for driver James Beagley,
marked General Counsel Exhibit 65. The social security
deductions for Richardson (according to my calcula-
tions) equal just under 6 13 percent of 65 percent of com-
pany gross revenue (the owner-operator's pay under the
contract) minus deductions for insurance paid by the
owner-operator (see art. 20 of the 1976-1978 contract)
and (in the case of G C Exh. 47(a)) spotting fees There-
fore, I credit the testimony of Pfiffer that he deducts the
proper employee tax of 6 13 percent for both owner-op-
erators and drivers The settlement sheets do not reflect
the Employer's share of the social security tax There is
no reason why they should. The fact that the Employer's
share is not calculated on the employee's settlement sheet
does not mean that the Company has not paid its share
of the social security tax If the Company had been de-
linquent in its tax payments, then this would appear to be
a matter for the Internal Revenue Service rather than the
National Labor Relations Board For the purposes of the
present case, it is sufficient to find, as I do, that the Com-
pany has deducted the proper employee social security
tax from its owner-operators' pay, or at least, that the
manner in which those deductions are calculated do not
violate its collective-bargaining contract.
The second prong of this allegation of the complaint
also fails for lack of proof. Richard Kutzler testified that
since 1977 he has followed a policy of permitting the
owner-operators to file either a W-4 withholding form
(for employees) or the self-employment form No 1099
In the former case, the Company makes all tax deduc-
tions In the latter, the Company deducts only from the
driver portion of the owner-operator's pay However,
the evidence fails to establish that, in fact, the Company
has failed to deduct Federal and state income taxes from
any owner-operator's pay since September 1, 1979, when
the present contract became effective The General
Counsel presented in evidence settlement sheets for
former owner-operator Charles Terrien, which fail to in-
dicate any deductions for taxes. However, Kutzler testi-
fied that the Company has been making deductions for
owner-operators, and named Terrien, among others Ter-
rien, although presented as a General Counsel witness,
failed to testify as to whether the Company has been
making deductions for him. It may be that Terrien's set-
tlement sheets are incomplete, inaccurate, or partially il-
legible It may also be that Terrien failed or refused to
sign a W-4 form Some testimonial explanation was war-
ranted, but none was forthcoming Moreover, FASH's
continuing failure, since January 1, 1978, to protest the
Company's practices and policy with respect to tax de-
ductions and social security payments further tends to in-
dicate that FASH did not consider those practices and
policy to be violative of their contract. Therefore, I am
recommending that this allegation of the complaint be
dismissed.
b Drivers' rules and dispatch procedures
Interestingly, the complaint does not allege that the
Company violated the Act or the contract by unilaterally
issuing drivers' rules and regulations, although much evi-
dence was presented in an apparent effort to make such a
showing, and FASH expressly accused the Company of
such violations The General Counsel's brief substantially
fails to explain the significance of this evidence (See
G.C Br. 20) However, as the matter is at least arguably
related to other alleged violations, including allegations
of 8(a)(1) and (5) conduct, I find it necessary to at least
REDWAY CARRIERS
construe the rights of the Company, FASH, and the em-
ployees under the contract
The September 1 contract contains the following new
article
Article # Rules & Regulations Governing Dispatch
Procedures
Section # I
The Company will issue a detailed list of rules
and regulations governing dispatch procedures to
all drivers and dispatchers
Section #2
The Company and the Union agree to continue
the past practice of negotiating the drivers' rules
and regulations periodically during the life of the
contract
Section #3
Shall be negotiated in good faith and not a arbi-
tration or strike issue.
The history of negotiations leading to this article has
been previously discussed As indicated, section 3 was in-
serted on September 1 at Kutzler's request This new ar-
ticle did not expressly repeal article 26 of the 1976-1978
contract, which incorporated by reference a list of dis-
patch procedures and company rules and regulations
which are attached to the contract
I find that the new contract means that the rules and
regulations contained in the rider to article 26 shall
remain in effect subject to future negotiations between
the parties, and that the Company may unilaterally issue
new or additional rules which are not inconsistent with
those listed in the rider, but that at the request of either
or both parties any rules or regulations may be periodi-
cally negotiated or renegotiated If the parties intended
to freeze existing rules by limiting them to those in the
rider, there would have been no need to add the new ar-
ticle If the parties meant that the Company could not
issue any new rules without first negotiating with FASH,
then section 1 of the new article would be superfluous
Section 1, unlike article 26, does not refer to a list to be
attached to the contract nor does it purport to deal with
the result of any negotiations under sections 2 and 3
Rather section 1 unequivocally provides for company is-
suance of a detailed list of rules and regulations. If the
parties intended that negotiations would precede the issu-
ance of rules, then it is probable that they would have
worded the new article in a manner similar to the new
article covering posting of bid jobs. Section 1 of that ar-
ticle, in contrast to section 1 of the article on rules, ex-
pressly provides that "The Company and the Union
shall negotiate to determine which jobs shall be consid-
ered bid jobs " The new article on rules and regulations
does not contain any comparable language. Indeed, at
the September 1 negotiations Shore and Richardt recog-
nized that the new article gave the Company extensive
discretion to issue new rules, but Dietsch was neverthe-
1389
less determined to incorporate that article into the con-
tract
In July 1978, the Company posted a list of six drivers'
rules The list was signed by Paul Dietsch, who also in-
dicated his "OK" next to each rule However the rules
were never put into effect I do not credit the testimony
of Dietsch that he signed the rules simply to acknowl-
edge their receipt. I find that Dietsch agreed to the rules,
but that Kutzler and Dietsch backed down when at a
subsequent meeting the drivers voted their disapproval of
the rules. During his outburst on September 1, Kutzler
produced the rules as a silent reminder of his allowable
discretion under the new contract. In September, the
Company again posted these rules Some of these rules
reflected existing company practices, but some involved
new and more stringent conditions The rules were not
inconsistent with those listed in the rider to article 26 I
find that under the newly negotiated contract the Com-
pany could properly issue those rules and any other driv-
ers' rules and regulations which did not conflict with
those in the rider, subject to the periodic negotiations
provided in sections 2 and 3 of the new article
c The spotting fee
The complaint alleges (B(2)) that since September 1,
1979, the Company has violated its bargaining obligation
and contract with FASH by "unilaterally imposing a
mandatory $15 spotting fee on employees " The history
of this fee has previously been discussed to a limited
extent The rider to article 26 mandates a "$15 loading
or unloading fee if a driver requests that the Com-
pany load or unload a trailer (and a spotter is available) "
The references to loading and unloading are somewhat
misleading The Company regularly assigns certain of its
driver personnel to the receiving and shipping areas of
its principal customers; specifically, Ocean Spray and
American Motors The record contains some oblique ref-
erences to the premises of other customers (there was
some reference to an RJR Company); however, the testi-
mony was substantially addressed to the use of this
method at Ocean Spray and American Motors 45 The
employee so assigned is known as a spotter One of the
principal functions of the spotter is to move trailers from
the customer's yard to the loading dock before loading
or unloading, and to move the trailer from the loading
dock to the yard after loading or unloading For this
purpose the spotter may use a tractor which is designat-
ed by the Company for this purpose, or the spotter may
use the tractor attached to the trailer if there is one. This
is the work which is referred to in the contract as load-
ing or unloading. The work can either be performed by
the driver who has hauled or will haul the load, or by
the spotter When performed by the latter, the work is
sometimes referred to as spotting The term "spotting" is
generally not used to describe such work when per-
formed by the driver. However, for ease of reference I
45 At those locations where the Company does not have a spotter, the
drivers under the terms of the September I contract are entitled to deten-
tion pay
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall refer to the work as "spotting," whether it is per-
formed by the spotter or the driver
The August 8 agreement (p 1, item 10) states "The
Union drops its proposal to eliminate loading and un-
loading charges to owner operators " This item was
agreed to by the Company and FASH with the follow-
ing additional handwritten language. "$15 load with
labor." The September 1 contract contains no reference
to this matter, except by silence to leave intact the provi-
sion in the rider for a $15 spotting fee. Kutzler testified
that on August 7 (the second day of the August negotia-
tions) they discussed item 10. According to Kutzler,
FASH wanted the spotting fee dropped but he wanted to
adhere to the 1976-1978 contract. Hill said that if it was
in the contract, "charge it " Kutzler said that he would
charge the fee to everybody, and there was no further
discussion of the subject. Paul Dietsch testified that he
did not recall any discussion of spotting fees, and George
Sullivan flatly testified that there was no such discussion.
Donald Sims testified that there was none in his pres-
ence FASH President Hill, as a rebuttal witness, denied
that he told Kutzler to charge the $15 fee or that Kutzler
said he would charge it, or that during the August nego-
tiations FASH requested Kutzler to drop the $15 fee.
Hill's testimony was corroborated by Dietsch and Sulli-
van, who were also called as rebuttal witnesses Hill did
not indicate what if anything was said about the spotting
fee, although his testimony leaves the inference that
nothing was said
I credit Kutzler's testimony that FASH agreed to the
imposition of a $15 spotting fee as provided in the 1976-
1978 contract First, in light of the handwritten insertion
on item 10, it is obvious that there must have been some
discussion of the spotting fee. Second, the credibility of
the FASH representatives was seriously undercut by em-
ployee Daniel Webster, who was presented as a General
Counsel witness. Webster, in his testimony, indicated that
he heard at least part of a discussion about the spotting
fee. According to Webster, FASH wanted to do away
with the 3-percent fee, but Kutzler wanted to "invert"
(i.e., revert) to the $15 fee. FASH agreed to this if the
driver requested a spotter They then discussed the
meaning of "request ." Kutzler said that a driver requests
a spotter when he drops the trailer in the yard FASH
disagreed, the subject was "snudged," and there was no
agreement on the meaning of "request ." Third, in the
same telephone conversation in which Kutzler conceded
the existence of a contract, Sullivan conceded the propri-
ety of a $15-spotting fee for all drivers. Thus, the tran-
script of their conversation indicates the followng ex-
change:
Dick- Don't, don't ahh hedge now because spe-
cific things were asked you How about the $15
spot fee, what was Dietsch's answer to that?
George. That $15 spotting fee is legal if the
driver request you to deliver that load.
Dick: Okay, and you told him I do not have to
enforce it, right
George: No.
Dick: Oh you mean in other words you're de-
manding that I enforce that
George- If they request it you can do what ever
you like, you have the right
Dick It's in the contract, right
George Right
Dick- Everything in that contract is what we're
going by
George Right
I do not credit Sullivan's testimony to the effect that he
was simply giving his own uninformed opinion about the
spotting fee. Sullivan expressly referred to the position
taken by Dietsch during the negotiations As late as mid-
October, FASH was still taking the position that the
Company could properly impose a $15 spotting fee on
any driver if the driver requested a spotter. In a mail-
gram to Kutzler, dated October 16, Dietsch accused the
Company of violating their contract in several specific
respects. However with respect to the spotting fee,
Dietsch failed to indicate any objection other than that
the Company was imposing a $15 fee in the absence of
driver requests for a spotter Only after the election cam-
paign was underway, and FASH realized that its consent
to the $15 fee had become the major issue, did FASH
assume its present position that it never agreed to a $15
fee for all drivers.
Kutzler's testimony is further corroborated by addi-
tional testimony concerning discussions of past practice
in which the spotting fee was not specifically mentioned.
Kutzler testified that during the August negotiations he
referred to past practice, and specifically referred to
prior discussions with Sims and Webster in their capacity
as stewards According to Kutzler, Hill responded that
all past practice was dead unless signed by Dietsch Hill,
in his testimony, denied that he said that all past practice
was dead. However, Hill admitted making statements to
the same effect, although in different words Hill testified
that in the context of a discussion about a separate wage
rate for Montgomery, he said that Kutzler had no busi-
ness making any deals with the steward, that all matters
had to be resolved with Dietsch, subject to Hill's ap-
proval, and that if any deals were made the Company
would owe the employees retroactively. With respect to
the spotting fee, the current practice came about as a
result of "deals" between Kutzler and the stewards
Thus, whether knowingly or not, and whatever his
words, Hill wiped out those gains which the stewards
had negotiated during the life of the previous contract.
Both expressly and impliedly, FASH agreed that the
Company could enforce the spotting fee provision in the
rider to the 1976-1978 contract notwithstanding a differ-
ent past practice.46
4s The General Counsel argues in its brief (p 30), without testimonial
support , that a I-percent reduction in the gross pay for owner -operators
(from 66 to 65 percent ) "was a trade -off for Redway 's agreement to pay
pension benefits" The argument is unpersuasive The pension plan cov-
ered all employees , and not simply those few who were owner -operators
Donald Sims testified that during the August negotiations Kutzler said
that he would live up to the strict letter of the contract, and Hill re-
sponded that Kutzler was smart enough to recoup his losses Hill may
well have been referring to the spotting fee
REDWAY CARRIERS 1391
In sum, I find that by reason of the new contract and
the August and September negotiations the Company
could and indeed was mandated under article 26 to
charge a $15 spotting fee, applicable to all drivers, in ac-
cordance with section VII of the rider. However, as in-
dicated by the testimony of Daniel Webster, which I
credit, the parties did not agree on the meaning of "re-
quests " In order to determine whether the Company
properly charged the spotting fee in accordance with the
contract, it is necessary to determine the meaning of "re-
quests," and whether the Company was properly apply-
ing that definition after September 1
Kutzler testified that prior to the August negotiations
he did not charge a $15 spotting fee The Company
charged a fee which was equal in amount to 3 percent of
gross truck revenue, except for "pigs" (revenue loads to
and from American Motors) in which case the charge
was 2-1/2 percent of gross truck revenue (There was
and still is no charge for spotting empty trailers at Amer-
ican Motors) The Company began hauling for American
Motors on a regular basis in or about June 1979 Prior to
that time the Company had little or no occasion to assign
a spotter to American Motors on a regular basis
Kutzler further testified that in practice only owner-
operators were charged a spotting fee. According to
Kutzler, no spotting fee was charged when the drivers
cooperated with each other by spotting for each other.
For example, when the driver was away on another trip
when the customer called in his trailer for unloading (the
trailer having been left in the customer's yard) another
company driver who was available would spot the trail-
er, and thereby spare the first driver the expense of a
spotting fee. The first driver would return the favor
when he had an opportunity to do so. In the meantime,
the drivers were free to maximize their income by run-
ning as many loads as possible, without having to wait
around or otherwise unnecessarily expend time to be
available to spot their trailers. However, Kutzler testified
that beginning June 1979 the drivers became increasingly
less cooperative in this regard, and also developed a
practice of turning in time slips for hours spent spotting
in this manner. In effect, the drivers were collecting a
spotting fee for themselves. Kutzler testified that thereaf-
ter he began charging a spotting fee in such situations
Kutzler further testified that in practice a driver can
"request" a spotter in several ways, i e , (1) the driver
fails to deliver the load, (2) if the driver is not present
when the customer wants delivery, (3) if the driver
drops his trailer in the lot and leaves, (4) if the driver
informs the dispatcher that he does not wish to come in
for loading, or (5) if the driver accepts a truck which has
already been loaded. According to Kutzler, the driver
may also request a spotter by saying that he will "take a
pass" when informed of the delivery date, or when he
arrives too late to make a delivery. Kutzler testified that
the driver can avoid a spotting fee by loading or unload-
ing, i e, spotting his own trailer, which of course would
require that he be present when the customer calls for
the truck. Kutzler further testified that after September
20 he imposed a $15-spotting fee, retroactive to Septem-
ber 1, because the contract provided for that fee, and
that at no time was there any change in the meaning of
"request "
Kutzler's testimony was corroborated to a substantial
extent by a parade of employee witnesses, most of whom
were presented by the General Counsel. As drivers, it is
evident that regardless of whether they were pro- or
anti-FASH, none of them had any wish to be charged a
$15-spotting fee Therefore they had no strong motiva-
tion to testify favorably to the Company in this matter
Interestingly, neither Kutzler nor the other witnesses ex-
pressly related the spotting situation to another develop-
ment which occurred in August 1979, but, which will be
discussed, obviously had a substantial impact on the use
of spotters
The testimony of Donald Neal is particularly illumi-
nating. Neal is an alleged discrimmatee and self-described
FASH loyalist, who obviously had no motivation to tes-
tify falsely in favor of the Company Neal testified that
Ocean Spray has limited receiving space, consisting of
about 8 docks, that trailers usually wait 3 to 4 hours and
sometimes as long as 2 or 3 days to be unloaded, that on
occasion a trailer waited a week for unloading, and that
sometimes Ocean Spray will not accept delivery even at
the time for which delivery was ordered Neal conceded
that in such context it was to everyone's advantage to
use a spotter As he put it- "How are you going to sit
there three days and wait for a trailer?" Neal testified
that it was company policy to remove the tractor (power
unit) from the trailer detained in the yard to keep the
tractor in use. Neal testified that he asked to spot himself
when he did not need another load, i.e, by his own
choice Neal was unable to explain the meaning of "re-
quest," but conceded that he understoood that when he
dropped a trailer in the yard a spotter would dock the
truck unless he returned to spot the trailer himself Neal
admitted that prior to September the drivers spotted for
each other, that the practice continued until after Sep-
tember 1, and that by engaging in such practice he was
able to avoid a spotting fee Neal further conceded that
he had no way of knowing when Ocean Spray would
call for the trailer. Neal failed to credibly indicate that
he had ever asked but was denied an opportunity to spot
his own load. Neal testified without contradiction that on
April 22 he called the Kenosha terminal to inform Oper-
ations Manager Summers that he would come back and
spot his trailer but that Summers did not return his call.
If so, the reason is obvious Neal did not work after
April 22 because he was on disability leave.
What Neal and the other witnesses neglected to men-
tion was that for about 8 months, until August 1979,
there was no spotting or any other work at Ocean Spray
because Ocean Spray was on strike. It is evident that the
resumption of business at Ocean Spray after such a
lengthy interruption, coupled with Ocean Spray's limited
docking facilities, resulted in considerable traffic conges-
tion, with delays and inability to accurately schedule the
loading and unloading process. Neal conceded that these
problems continued as long as he worked for the Compa-
ny However, nothing in the contract or even in past
practice required the Company to make special efforts to
accommodate those drivers who wished to spot their
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
own loads, particularly when those efforts would have
been beyond the Company's control The customer, and
not the Company decided when trailers would be re-
ceived at the dock, and the customer did not always give
advance notice of same I find that the increased use of
the spotters' services at Ocean Spray was caused by con-
ditions which were beyond the Company's control and
not, as argued by the General Counsel, by a company
plot to undermine FASH by imposing a spotting fee on
drivers who failed to "request" the services of a spotter
Daniel Webster, who was also presented as a General
Counsel witness, testified that the driver has a choice to
pay the $15 fee or to spot the trailer himself, and that he
had never been denied that choice, but that it was to the
driver's advantage to pay the fee to obtain lucrative
loads Webster also testified, in essence, that a driver
could "request" a spotter by accepting dispatch of an-
other load Edward Shore, who was presented as a com-
pany witness, corroborated Kutzler's testimony that prior
to September 1 drivers were not charged a spotting fee
when they spotted for each other Alan Broyles testified
that at American Motors the driver could spot his own
load only with the permission of the dispatcher Howev-
er, in context, it is evident that Broyles was referring to
the time of delivery, i e , whether the customer wanted
inmediate delivery General Counsel witnesses James
Beagley and Marlene Graham, both of whom drove pigs
to and from American Motors, testified that drivers were
not required to use a spotter. Beagley testified that the
driver could spot his own trailer to avoid a fee, but this
could mean a wait of 2 or 3 days (drivers can make as
many as 3 round trips to American Motors in 1 day).
Marlene Graham testified that only the amount but not
the manner of the spotting fee changed in mid-Septem-
ber 47
On October 3, the Company issued and posted a
memo to its drivers regarding "dropping trailers in docks
to avoid spotting charges " The memo instructed the
drivers that they could spot their own trailers, but must
first check with dispatch, the spotters, or receiving fore-
men to see if the trailer was wanted The drivers were
told that otherwise a spotting fee would be assessed be-
cause the trailer would have to be removed from the
dock until wanted. On April 1, 1980, the Company
issued another memo that informed the drivers that if
they wished to spot their own trailers they would have
to fill out a specific and simple form which indicated that
they did so, and that otherwise they would be charged a
spotting fee I find that both memoranda constituted a
proper exercise of the Company's authority to issue driv-
ers' rules and regulations Neither rule conflicted with
the spotting fee provision of the contract or otherwise
prohibited the drivers from electing to spot their own
trailers The first memo prohibited an improper practice
of docking a trailer when the customer had not indicated
that it was ready for delivery, and the second memo was
a reasonable recordkeeping device.
47 Alan Broyles testified that prior to September I the driver was not
charged any spotting fee at American Motors However, his testimony in
this regard was contradicted by both Beagley and Graham
I credit the above-described testimony of Kutzler I
find that in accordance with established practice, drivers
could "request" a spotter in various ways, including
words, action or inaction, that the Company has not pro-
scribed the drivers' contractual right to elect to spot
their own trailers, and that the Company has interpreted
and applied the pertinent contractual provisions in a
proper manner. Therefore I am recommending that this
allegation of the complaint be dismissed
d Dues checkoff
Article 3 , the checkoff provision of the contract (un-
changed from the 1976-1978 contract ) provides that
The Company agrees to deduct at the end of each
month, Union dues, initiation fees, assessments from
the pay of those operators who give written author-
ization to the Company for such deduction, and to
transmit dues collected within five (5) working days
from said collection to the Union, as long as this au-
thorization is validly in effect and is not revoked by
the operator.
The complaint alleges, and the answer admits that since
December 13, 1979, the Company has refused to forward
to FASH, union dues withheld from employees' pay-
checks Paul Dietsch testified that FASH has received
dues for all months through December 1979, and that the
last payment from FASH was received sometime after
December 10 In practice, and notwithstanding the lan-
guage of the checkoff provision, the Company normally
deducts union dues from the first paycheck of the month
for which the dues are due The General Counsel and
the Company stipulated that the Company has not for-
warded dues for the period January through June 1980,
i.e., to the time of the present hearing. Since January the
Company has deducted dues from those employees who
have valid checkoff authorizations on file, but has not
forwarded the dues to FASH. Kutzler testified that on
the advice of counsel he stopped remitting dues money
after the election, and has placed the money in a nonin-
terest bearing escrow account.
Paul Dietsch testified that daring the week of the elec-
tion, he repeatedly asked Safety Director William
Broyles when FASH would be receiving dues for Janu-
ary, and Broyles kept answering that the check was in
the mail. Dietsch testified that FASH never received the
money. Dietsch further testified that Broyles gave him a
copy of a checkoff sheet which indicated that the Com-
pany deducted a total of $675 in dues and initiation fees
since the last payment to FASH The figure consisted of
January dues ($15 per member) deducted from pay-
checks on Friday, January 4, two dues deductions on
December 14, and three initiation fees of $25 each which
were also deducted on December 14 Attached to the list
was a check stub in the amount of $675 "for FASH "
As previously discussed, the contract contains a valid
union-security clause The checkoff provision is also
lawful Safety Director Broyles was incapacitated at the
time the Company presented its defense in this hearing
REDWAY CARRIERS 1393
and was not presented as a witness 48 However, the
Company in its answer admitted that it did not forward
dues after December 13 I credit Dietsch's testimony that
FASH did not receive any payment in January. In light
of the Company's answer and Kutzler's testimony, I find
that the Company intentionally held off forwarding
checked off dues and initiation fees pending the election
However, I find that as of the close of the election (Sat-
urday, January 12) the Company had not engaged in a
material breach of its contract which would constitute a
violation of its bargaining obligations to FASH Under
the contract checkoff provision, the Company is not re-
quired to check off dues until the end of the month for
which they are due, e g, at the end of January for Janu-
ary dues In fact, the Company deducted January dues
on January 4 The contract requires transmission of
checked off dues (but is silent about initiation fees or
other assessments) within 5 working days from collec-
tion Excluding the intervening weekends, which are not
normal working days, this means that the Company had
until January 14 to transmit the January dues I do not
regard the Company's failure to forward the December
14 deductions immediately, instead of holding them for
the next payment, as a material breach of contract which
constituted an unfair labor practice Therefore, I find
that during the period from September 1 through the
election, the Company did not violate the contract or its
bargaining obligation in any pertinent respect However,
I shall reserve discussion of whether the Company's sub-
sequent action was unlawful, until after I have taken up
the matter of whether the election should be set aside
e. Pension payments
The complaint alleges that since about December 13,
1979, the Company has violated its contract and bargain-
ing obligations with FASH by refusing to make required
pension payments The pension plan, like the existing
health care plan, provides for a sliding scale of employer
and employee contributions in the event that the drivers
covered by the plan fail to "maintain an average weekly
gross revenue of $500 per quarter year " Kutzler testified
that when the health plan was instituted under the 1976-
1978 renegotiated contract, he interpreted the sliding
scale as applicable to the driver's gross pay rather than
the Company's gross revenue from the truck. However,
Sims and Webster persuaded him that he should not re-
quire employee contributions if the drivers failed to aver-
age $500 per week, because they were cooperating by
spotting for each other, i.e , without compensation
Kutzler testified that therefore he assumed the full cost
of contributions to the plan Whether Kutzler did so be-
cause of the contract language or because of a "deal"
with Sims and Webster, I find that under the contract
language (both as to the pension plan and the health care
plan) that "average weekly gross revenue" means truck
4a Kutzler testified, over the objection of the General Counsel, that
William Broyles was hospitalized with a heart condition If this were not
true then the General Counsel had a witness who was in a position to
know the truth, namely, Alan Broyles However, Alan Broyles did not
testify about his father's condition I credit Kutzler, and I find that no
adverse inference is warranted by reason of the Company's failure to
present William Broyles as a witness
revenue. 4`i Article 16, section I of the 1976-1978 con-
tract, which remains in effect, expressly provides that
"There shall be one method of pay under this contract
and it shall be based upon a percentage of the gross reve-
nue paid to the Company for the transportation of a
load " Both the contract and the driver settlement sheets
use the term "gross revenue" with reference to truck
revenue If in providing for the health and pension plans
the parties meant that the sliding scale applied to the
driver's "gross pay," they probably would have used the
term However they did not Instead, they used the term
"gross revenue," which has a different meaning under
the contract
The records of the FASH pension fund and of the
company indicate that contributions from the Company
were received by October 15 for September, by Novem-
ber 15 for October, and by checks dated March 10, and
received on March 14, 1980, for November and Decem-
ber No contributions have been forwarded for months
beginning January 1980 Kutzler testified that he began
making pension payments after his first attorney advised
him to do so because the Board held that he had a con-
tract, but that he has not made payments for the months
beginning with January 1980 because of his present posi-
tion that there is no contract 50 Kutzler testified that he
never implemented employee contributions to the pen-
sion plan because such implementation required a calen-
dar quarter of experience which would not be available
until the end of 1979 The pension plan records corrobo-
rate Kutzler's testimony Those records indicate that the
Company made the full contribution of $90 per month
for all covered employees, except that in a few instances
(apparently limited to some owner-operators) the records
indicate that the employee paid the entire contribution
for a month 51
The 1976-1978 contract provides that the Company
shall make the monthly contributions to the health care
fund "by the 10th of the month due." The new contract
provisions covering the pension plan do not indicate
49 There is no sliding scale for hourly paid personnel who are covered
by the same pension plan as the drivers but by a separate health care
plan
so Kutzler also testified that he made payments to the pension plan
under the threats of a strike and getting his legs broken and windows
smashed The partial tape of Kutzler's October telephone conversation
with George Sullivan begins with Kuvler's statement "Don't you ever
threaten me again " I find it unnecessary to determine whether Sullivan
threatened strike action or violence The Company's contractual obliga-
tions under the pension plan were as discussed in this decision
Si The reason for these employee contributions is not clearly indicated
in the present record Malachy Whalen, the employed administrator of
the pension and health programs, testified that such an entry would mdi-
cate that the employee did not earn enough to qualify for employer pay-
ments In these cases this would mean that the employees had no earn-
ings Two of the employees, Charles Terrien and Emanuel Richardson,
were presented as General Counsel witnesses, but did not testify about
the matter Terrien's settlement sheets for the pertinent periods in 1979
indicate that he had gross earnings, but that the full health care contribu-
tions were deducted from his pay These deductions are accompanied by
terse notations , some of which suggest that Terrien was covered in some
other manner by the FASH health plan There is no indication in Ter-
rien's settlement sheets, or that of any other employee, that any pension
plan contribution was deducted from the employee's pay I am not per-
suaded on the basis of this kind of evidence that the Company violated its
contract by failing to make pension contributions for these employees
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when payments are due, other than to require the Com-
pany to contribute $90 "per month" for each regular em-
ployee Administrator Whalen testified that contributions
are due at the end of the month However, he admitted
that this conclusion was based on his observation of
what was done by other employers Kutzler testified that
it was his understanding that pension contributions are
normally paid about the 15th of the following month
The Company's payments for September and October in-
dicate that at least initially Kutzler was following such a
practice. Although the contract is silent on a due date,
the contract does provide for contributions on a monthly
basis Therefore, I interpret the contract as meaning that
an employer would be delinquent if he failed to forward
monthly contributions by the end of the following
month, i e , if the employer permitted 2 successive
months to pass without forwarding a monthly contribu-
tion 52
Kutzler in his testimony failed to explain why the con-
tributions for November and December were not for-
warded until March Under Kutzler's own expressed un-
derstanding of his obligations, and in accordance with a
reasonable interpretation of the contract, the Company
was at the time of the election (January 9 through 12) in
arrears for the November contributions Paul Dietsch
and Administrator Whalen testified, in sum, that in De-
cember, after the representation hearing, they each asked
Safety Director Broyles why the Company was behind
in pension payments, and that Broyles answered that the
Company would not make any more payments until the
representation question was resolved. According to
Whalen, Broyles added that the Company would place
the contributions in an escrow account I credit Dietsch
and Whalen However, as with dues checkoff, I find that
as of the time of the election the Company had not com-
mitted a material breach of its contract which constituted
an unfair labor practice Not every breach of or lesser
deviation from a collective-bargaining contract is unfair
labor practice Rather, such conduct, whether in the
form of a unilateral change in terms or conditions of em-
ployment or otherwise, constitutes unfair labor practice
conduct if and to the extent that it constitutes "an inva-
sion of [the Union's] statutory right as collective-bargain-
ing representative of employees in the unit to bargain
about any change in the terms and conditions of employ-
ment for such employees " C & C Plywood Corporation,
148 NLRB 414, 415 (1964), affd 385 U S 421 (1967), see
also NLRB v. M & M Oldsmobile, supra, 377 F 2d at
715-716, Sea Bay Manor Home, 253 NLRB 739 (1980). In
the present case, the situation as of the election was that
(according to Kutzler' s understanding of a practice
which was not defined in the contract) the Company
was less than 1 month late in forwarding pension contri-
butions for November Broyles simply indicated that the
Company was awaiting the outcome of the election. At
no time prior thereto did Kutzler repudiate his obligation
to contribute to the pension fund under the September 1
52 Administrator Whalen testified that the Company did not file a
"participating agreement." whereby an employer certifies that he is par-
tiLipating in the fund and will abide by the trust agreement However,
the evidence fails to indicate that either the Fund or FASH asked the
Company to file such an agreement
contract 53 The Company, in a timely manner, forward-
ed monthly contributions in October and November, and
the Company did not, until after the election, indicate to
FASH or the employees that it intended to cease for-
warding pension contributions On the contrary, in a
notice to the employees dated October 12, Kutzler con-
ceded that a new contract had been negotiated and rati-
fied, but implied that FASH's failure to submit a "formal
written contract" led to misunderstandings. I find that
the Company's delay in forwarding the November pen-
sion contribution did not (as of the time of the election)
constitute an unfair labor practice or material breach of
its contract. However, the Company's subsequent course
of conduct, and particularly its refusal to make payments
for the months beginning with January 1980 fall in a dif-
ferent category. As with dues checkoff, I shall reserve
consideration of this matter until I have considered the
objections to the election.
f Retroactive overtime, holiday, and hourly wage
increases
The complaint (B(6)) alleges that since September 1,
1979, the Company has refused to pay retroactive over-
time, holiday, and hourly wage increases "back to April
1, 1979-as agreed." For the reasons previously dis-
cussed, I find that there was no retroactivity before Sep-
tember 1. The Company's course of conduct on and after
September 20 indicates that notwithstanding its own
opinions in the matter the Company was making a good-
faith effort to comply with the terms of the new con-
tract. On September 20 shop steward William Cook sub-
mitted a written contractual grievance to Kutzler, alleg-
ing that the Company was not paying hourly wage in-
" Kutzler testified that shortly after the Regional Director dismissed
UTA's first election petition, Paul Dietsch telephoned and said that the
Company owed pension payments Kutzler answered that he did not owe
any money For the reasons previously discussed Kutzler was correct at
this point Daniel Webster testified that in mid-September Kutzler told
him that he would pay retirement only if there was a spotting fee Web-
ster testified that in the same or another conversation in late September
Kutzler told him that he would stick the contract up "Paul Dietsch's
ass " The complaint alleges (C(14)) that Kutzler thereby unlawfully
threatened employees with repudiation of contract because of protected
concerted activities (G C Br 50-51) Kutzler testified that he never said
that the spotting fees were to pay for the pension, but that he told those
drivers who asked that the fees were to pay for the additional cost of
spotters and the overhaul of spotting equipment In light of Kutzler's
overall course of conduct, as has been and will be described, I find that
the conversation probably took place shortly after the Regional Director
found a contract bar, and that Kutzler probably made statements to Web-
ster in the same or similar language as described by Webster I find, that
in substance, Kutzler was correctly telling Webster that the spotting fee
came with the contract , that the employees had to take the good with the
bad, that the spotting fee was a quid pro quo for employee benefits, and
that as he similarly indicated to Dietsch , he intended to enforce his rights
under the contract That meaning is further corroborated by testimony of
George Sullivan concerning his telephone conversation with Kutzler in
mid-October Sullivan testified that in the conversation Kutzler said that
he was not happy with the contract and was sticking it up their "asses "
The remark does not appear on the tape At the time, Kutzler was com-
plying with the provisions of the contract Therefore, assuming that
Kutzler made the remark, it is evident that Kutzler meant that he was
enforcing his contractual rights As with Kutzler's prior statements to
Alan Broyles and to Dietsch, I find that Kutzler's statements to Webster
did not constitute threats of contract repudiation or other reprisal There-
fore, I am recommending that this allegation of the complaint be dis-
missed
REDWAY CARRIERS
creases as per the new contract "beginning September
1st, 1979 " Kutzler promptly accepted the grievance and
agreed to and did implement the provisions of the new
contract, including hourly rates of pay, shift differentials,
and paid holidays, retroactive to September 1, and he has
continued to do so FASH did not pursue the grievance
any further The Company's similar compliance with the
contractual overtime provisions, retroactive to Septem-
ber 1, has previously been discussed. Significantly,
Kutzler's conversation with Alan Broyles occurred in
early November, i e., at a time when Kutzler, after con-
sultation with his present counsel, had reverted to his
prior position that there was no contract Nevertheless,
Kutzler promptly arranged for Broyles to receive over-
time pay, as provided in the contract, retroactive to Sep-
tember 1. Kutzler did not reduce the pay of owner-oper-
ators from 66 to 65 percent of gross revenue, although
he had a contractual right to do so. Of course FASH did
not complain that the owner-operators were overpaid If
anything, Kutzler's action indicates a lack of vindictive-
ness on his part 54 I find that the Company did not vio-
late the Act or commit a material breach of contract
with regard to these matters, and I am recommending
that this allegation of the complaint be dismissed.
g Vacation pay
The new contract provided for paid vacations after
January 1, 1980 Donald Neal testified that on April 1 he
filled out a vacation schedule which was contained in his
pay envelope Neal listed his preferences, and Safety Di-
rector William Broyles told him that he would probably
get his preference Neal testified that I or 2 days later he
asked Broyles if it were true that they would not be get-
ting vacation pay that year, and Broyles answered that
he was correct Kutzler testified that he has not paid va-
cation pay as provided in the contract However, the
credible evidence fails to indicate that at any time prior
to the election Kutzler informed FASH or the employ-
ees that he would not give vacation pay.55 I find that
this allegation falls within the category of alleged post-
election violations, and it will be discussed again in that
context
h Processing of grievances and discharges
The complaint alleges (B(5) and (8)) that since Decem-
ber 1979 the Company has unlawfully refused to notify
FASH before discharging employees and/or refused to
have contractually required hearings prior to discharging
employees, and since September 1, 1979, has unlawfully
refused to process grievances As these allegations are
54 Kutzler testified that he pays his brother Pookte 69 percent of gross
revenue The complaint does not allege that the Company thereby acted
unlawfully, and FASH never complained about the matter, although it
might have had an arguable basis for doing so under art 5 of the contract
(extra contract agreements)
55 At one point in his testimony, Daniel Webster indicated that to his
conversation with Kutzler in late September, Kutzler said that he would
not pay either retirement or vacation As previously discussed, I substan-
tially credit earlier testimony by Webster that Kutzler was tying these
benefits to the spotting fee Kutzler's overall course of conduct indicates
that in late September he intended to fully comply with the new con-
tract
1395
closely related, I am dealing with them under one head-
ing The General Counsel also contends (Br 47) that an-
other issue, although not pleaded, was "fully litigated,"
i e, an alleged company refusal to inform FASH of the
reasons for termination of certain former employees
This allegation is closely related to complaint paragraphs
B(5) and (8) and will also be discussed under this head-
ing
1. The Taylor grievance
At their June 2, 1979 negotiating session, Paul Dietsch
asked Kutzler for a grievance hearing over the matter of
driver George Taylor, who allegedly had been dis-
charged on June 1 On June 5 Dietsch, accompanied by
Taylor, met with Scott Kutzler in what Dietsch de-
scribed as a combined first and second step of the griev-
ance procedure 56 Dietsch presented an unsigned griev-
ance, written in the third person, which alleged that
Taylor, who had ostensibly been terminated for insubor-
dination and destruction of property, was discharged
without a hearing and without just cause Scott Kutzler
refused to reinstate Taylor either temporarily or perma-
nently, and Dietsch informed Scott that he would refer
the matter to arbitration, which he did By letter dated
November 7, the American Arbitration Association
(AAA) informed the attorneys for the Company and
FASH that the designated arbitrator would require proof
of FASH's assertion that the 1976-1978 contract was ex-
tended and replaced by a new contract on September 1
By letter dated January 9, company counsel informed
AAA of the Company's position, specifically, that the
matter was not arbitrable, that the arbitrator had no ju-
risdiction in the matter, that Taylor was employed by
Cardinal and not Redway (as alleged in the grievance),
that there was no valid contract, and that the Company
would hold the arbitrator liable for damages if he as-
sumed jurisdiction in the matter By letter dated January
16, AAA informed the attorneys that the arbitrator
would not proceed until the arbitrator received FASH's
position on the contract question FASH never respond-
ed to the letter, and the matter has not proceeded fur-
ther
Company counsel was essentially correct in his posi-
tion At the time of Taylor's alleged termination there
was no contract in effect between the Company and
FASH The old contract expired on April 1, 1979, and
the new contract became effective on September 1, 1979.
An employer is not required under the Act to arbitrate a
grievance which arises during a hiatus between collec-
tive-bargaining contracts Hilton-Davis Chemical Co, 185
NLRB 241 (1970) Moreover, even if the contract were
in effect, the grievance was contractually defective and
therefore not arbitrable because it was unsigned Article
9 of the 1976-1978 contract, which has not been changed
by the September 1 contract, provides that under the
ss The 1976-1978 contract (art 9) provides for a 3-step grievance pro-
cedure The first step provides for attempted resolution by the steward or
assistant steward, the second by the Union, and the third by arbitration
At the time, as previously discussed. steward Sims, officially at least, was
not processing grievances, and Dietsch had informed Kutzler that he
would perform this function
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
first step of the grievance procedure. "The operator will
report his signed grievance in writing to the Company
and to the Union steward or assistant Union steward, in
the absence of the union steward, within 30 days of the
occurrence of such grievance " Donald Sims testified
without contradiction that prior to Taylor's termination
he was told the Company's position, but that Taylor de-
clined to fill out a grievance form, and that he so in-
formed Dietsch Taylor was not presented as a witness,
and Sims' testimony was corroborated by Kutzler. I do
not agree with the General Counsel's argument (Br. 43)
that the contract does not require a signed grievance in
discharge cases Article 6 of the contract provides that:
The Company shall not discharge or suspend any
operator without first conducting a hearing with the
operator and the Union, except in the cases of
drinking alcoholic beverages while on duty, use of
drugs, theft, assault on employer or his representa-
tive, carrying unauthorized passengers, dishonesty,
or reckless driving resulting in serious accident
while on duty
The article further provides that in those discharge cases
not exempted under the contract, the Company and
FASH will communicate within 10 working days to "re-
solve the dispute," and that if the dispute cannot be re-
solved the matter will be referred to arbitration. The
General Counsel would read these provisions as meaning
that discharges must be processed as grievances regard-
less of whether the employee elects to sign a written
grievance Such an interpretation is not only unrealistic
(some employees, at least, may prefer not to contest their
terminations), but as will be discussed, such interpreta-
tion is contrary to the usual practice which was followed
in disciplinary and discharge cases. I credit Kutzler's tes-
timony that Dietsch insisted on proceeding with arbitra-
tion notwithstanding Taylor's refusal to sign a grievance.
Therefore, for this additional reason, the Company did
not violate the Act by opposing arbitration on the merits
See American Smelting Co, 192 NLRB 1217 (1971).
(2) Additional alleged grievances arising prior to
September 1, 1979
The Taylor matter was the only alleged grievance
which was referred to arbitration Paul Dietsch testified
that in April 1979 when he took over grievance han-
dling, Donald Sims gave him four written grievances.
The four grievances each substantially alleged that the
aggrieved driver had been denied loads in disregard of
proper seniority procedure The grievances had not been
presented to the Company Dietsch testified that he pre-
sented the grievances to Kutzler around the end of May
1979, but that Kutzler refused to discuss them (properly
so, as Dietsch admitted ) because they were untimely.
The grievances were all more than 30 days old and, in
addition, one of them was unsigned . Dietsch testified that
in.June 1979 he received a fifth grievance, dated June 2
and alleging improper referral on June 1, and that in late
June he requested a hearing on the matter , but that
Kutzler asked that such grievances be put aside until a
contract was negotiated Dietsch further testified that on
September 8 he again presented the grievance to Kutzler
together with two similar employee grievances which
had been signed and presented to him in the interim
(dated June 20 and August 8, respectively) but that
Kutzler refused to meet about the grievances, implemen-
tation of the contract, or anything else, "because the men
had voted for their own union at Varney's Bar that day"
and Kutzler had to consult with his attorney 57 Kutzler
testified that he also tried to discuss drivers' complaints
(not reduced to written grievances), e.g., concerning
unfair dispatching. George Sullivan, who accompanied
Dietsch, testified that they also tried to discuss retroac-
tivity to April 1, 1979, and allegations that the Company
was paying drivers 24 percent instead of 27 percent of
gross revenue at Montgomery (No written grievance
was submitted with respect to the latter, nor any others
involving Montgomery-based personnel, but Dietsch tes-
tified that he received a verbal complaint from a Mont-
gomery driver )
Kutzler testified that he never refused to bargain, ne-
gotiate, or handle grievances with FASH. Kutzler also
testified that he never asked Dietsch to withhold filing of
grievances until after negotiations. However, Kutzler did
not specifically deny that he refused to discuss matters
with FASH on the basis of the September 8 employee
meeting or the petition which emerged from that meet-
ing Kutzler did admit that shortly before he met with
Dietsch and Sullivan, Leroy Richardt told him that
FASH would no longer represent the employees, that he
(Kutzler) told Dietsch and Sullivan that they did not
have a contract, and that he encouraged Dietsch and
Sullivan that they did not have a contract and that he
encouraged Dietsch to swallow his pride and try to re-
cover the loyalty of the employees.58 Scott Kutzler, al-
though present with his father on September 8, did not
testify about their meeting with Dietsch and Sullivan I
credit the testimony of Dietsch and Sullivan to the
extent indicated. Kutzler's refusal at this point (Septem-
ber 8) to deal with Dietsch on substantive matters was
consistent with his overall pattern of conduct Previous-
ly, Kutzler (as well as Dietsch) was reluctant to proceed
with contract negotiations in the face of employee dis-
sention. After the Regional Director dismissed UTA's
first petition, Kutzler unhesitatingly accepted and reme-
died the grievance filed by shop steward Cook. On Sep-
tember 8, Kutzler challenged the existence of a contract
and questioned FASH's continuing representative status.
However, no valid question concerning representation
could be raised at that time because FASH and the Com-
pany were parties to a valid collective-bargaining con-
tract. Appalachian Shale Products Co., 121 NLRB 1160,
s7 At one point Dietsch testified that Kutzler refused to discuss the
grievances or any other matter until resolution of the petitions which had
been filed with the Board This is unlikely The petition by which UTA
came into existence originated at a meeting on September 8, but no peti-
tion was filed with the Board until September 10
se Kutzler met with Dietsch and Sullivan shortly before and again
shortly after the September 8 employee meeting Kutzler encouraged
them to attend the meeting, and Richard invited them to attend, but the
FASH representatives declined the invitation Dietsch and Sullivan tried
to proceed with a FASH meeting which was scheduled for the same time
at Howard Johnson's, but none of the employees came to that meeting
REDWAY CARRIERS
1162 (1958) I find that the Company violated its bargain-
ing obligations under the Act by refusing to process the
three written grievances which were presented or resub-
mitted on September 8 Hilton-Davis Chemical Co., supra,
185 NLRB at 242 The contract does provide that the
union steward will initially present the grievance How-
ever, by mutual agreement Kutzler and Dietsch modified
the existing procedure to permit Dietsch to perform the
steward's function (As of September 8 there was no
driver steward at Kenosha Sims and Webster had re-
signed and they had been replaced) The three griev-
ances were timely filed Whether or not Dietsch formal-
ly presented the June 20 grievances prior to September
8, Kutzler waived any objection on the basis of timeli-
ness by requesting Dietsch to defer proceeding on griev-
ances until a contract was negotiated I further find that
Kutzler violated Section 8(a)(5) and (1) of the Act by re-
fusing to meet and confer with Dietsch and Sullivan con-
cerning complaints about employee wages and working
conditions which were not presented in the form of con-
tractual grievances. See Section 3(d) of the Act Al-
though Kutzler subsequently accepted the Cook griev-
ance, he did not inform Dietsch that he would process
the grievances and discuss the other matters which were
presented on September 8 Therefore the violations re-
mained unremedied
(3) Post-September 1 grievances
Since the meeting on September 8 FASH has present-
ed only three written grievances. The first was the Cook
grievance, previously discussed, which was resolved
The second involved the termination of driver Charles
LaRoche LaRoche presented a written signed grievance
to the Company dated December 27, alleging in sub-
stance that he was unjustly fired the previous day osten-
sibly for refusing dispatch William Burton, who was ap-
pointed by Dietsch as acting steward on October 13 and
elected by the drivers on October 27, testified that he
presented the LaRoche matter to Kutzler, but that
Kutzler declined to discuss it further because he had to
consult his lawyer. LaRoche was in fact terminated on
December 26. According to Burton, he referred the
matter to Paul Dietsch, who indicated that there would
be an unemployment compensation hearing. Thereafter,
by letter dated January 9, Kutzler informed LaRoche
that "The Company has reviewed the facts concerning
the grievance and have determined that your grievance
is unfounded and is denied " Dietsch did not request to
meet with the Company or its representative about the
LaRoche matter until early April 1980. In the meantime,
in its unfair labor practice charge filed on January 25
FASH alleged that the Company discriminatorily dis-
charged LaRoche However, the Regional Director de-
clined to proceed on this allegation Kutzler testified that
the Company's position is that it will not meet on any
grievance without the presence of its counsel, and that
Paul Dietsch has refused to meet with counsel present.
Dietsch testified that neither he nor Sullivan ever said
that they would meet Kutzler only without a lawyer
This matter will be taken up again in connection with
postelection developments
1397
Kutzler testified in sum that prior to and continuing
after September 1 the usual procedure in discharge cases
was that the Company would first discharge the employ-
ee, but that a copy of the discharge slip would be placed
in the steward's mail slot FASH could then request a
hearing Kutzler testified that the same procedure was
followed in cases of lesser discipline, e g , suspension (no-
tices of discharge or lesser discipline are all captioned
"employee warning record) " Kutzler's testimony runs
contrary to the language of the contract, and his testimo-
ny was further contradicted by Donald Sims Unlike the
spotting fee provision, in which the key word "requests"
is susceptible of more than one meaning, article 6 unam-
biguously provides that in cases not exempted under the
contract, "the Company shall not discharge or suspend
any operator without first conducting a hearing with the
operator and the union " Moreover, the testimony of
Sims indicated that the Company and FASH actually
followed a procedure which was consistent with the con-
tract. Sims testified in sum that in those cases in which
the contract required a hearing, the "employee warning
record" operated as a notice of intent to discharge or
suspend When Sims, as steward, received his copy of
the notice, he would contact the employee, get his story,
and set up a hearing with Kutzler or Scott Kutzler If
the alleged infraction was unsubstantiated, Sims would
ask that the notice be removed from the employee's file
If the matter was resolved, Sims would request that a re-
vised Company letter be placed in the employee's file. If
the employee refused to accept the employer's decision,
or the matter was otherwise not resolved, the employee
would sign a grievance and Sims would notify Dietsch,
who would normally enter the matter at this stage Sims
testified that he handled some 25 to 30 cases of intended
discharge in this manner, and also took up with the
Company, cases in which the Company exercised its
right of summary discharge, i.e , when the contract did
not require a pretermination hearing. Sims' testimony
with respect to the Taylor matter indicates that in these
hearings the Company would present its position and
Sims would make an appropriate argument, e g , for
lesser discipline when the employee was demonstrably
guilty of an infraction.
I credit Sims It is unlikely that Sims would knowingly
give false testimony which was favorable to FASH The
Company had a right to have its attorney present at the
article 6 hearing or at any other meeting with FASH
However, the Company in such event was obligated to
have its attorney available when steward Burton tried to
take up the LaRoche matter Instead, Kutzler used his
attorney as an excuse to avoid discussing the matter with
Burton, and proceeded to effectuate LaRoche's termina-
tion without a hearing The Company thereby violated
its contractual obligations to FASH and LaRoche, not-
withstanding that Dietsch did not expressly request to
discuss the matter until long after LaRoche's termination
Compare, NLRB v. J. Weingarten, 420 U S 251, 262-264
(1975) I further find that the Company, by refusing to
conduct a hearing as provided in the contract, and by ef-
fectuating LaRoche's termination without affording him
and FASH the benefit of such hearing, violated Section
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(a)(1) and (5) of the Act. Newspaper Printing Corp., 221
NLRB 811, 820 (1975), Metlman Food Industries, 234
NLRB 698, 709 (1978)
(4) Additional allegations of refusal to give notice
of hearing in discharge cases
The collective-bargaining contract does not expressly
require the Company to notify FASH before discharging
an employee Such a requirement is implicit in those
cases in which the employee is entitled to a hearing
before termination or suspension can be effectuated. The
contract does require the Company to notify FASH of
disciplinary action taken against a probationary driver
during the driver's probationary period (30 days or the
handling of eight round trips) It follows that FASH is
entitled to at least as much notice in cases involving the
termination of regular drivers The contract is silent with
respect to shop employees I find that the contract im-
pliedly and in some cases expressly requires the Compa-
ny to give FASH advance notice of intent to terminate a
driver when a hearing is required, and contemporaneous
notice in all other terminations of regular drivers
Paul Dietsch testified that under past practice, i e.,
before September 1, the Company regularly notified both
himself and the steward when an employee was terminat-
ed. In support of Dietsch's testimony, the General Coun-
sel presented in evidence various written communica-
tions which would indicate that the Company sent at
least some written notices of disciplinary action to both
Dietsch and the steward Donald Sims, Kutzler, and
Scott Kutzler testified that the Company normally sent
copies of the discharge action only to the steward Sims
testified that he normally forwarded a copy to Dietsch
only if he was unable to resolve the matter I find that
regardless of whether in the past, Kutzler sent copies of
disciplinary action directly to Dietsch, FASH's stewards
are agents of FASH for the purpose of receiving notice
of discharge or disciplinary action and that the Company
fulfilled its statutory obligations by notifying the steward
of such action
Dietsch and Sullivan testified in sum that since No-
vember the Company has failed to notify FASH of some
terminations, and they named some of the employees in
question. Scott Kutzler testified that steward Burton has
regularly received all notices of discharge other than
those of probationary employees. Burton testified that
since becoming steward he has received copies of some
discharge notices. However, he was unable to identify
any notices which he failed to receive (including those
named by Dietsch and Sullivan), and admitted that he
never complained to Kutzler about not receiving copies
of notices I credit Scott Kutzler, and I find that the
General Counsel has failed to prove that the Company
violated its statutory or contractual obligations by failing
to notify FASH of termination actions.
I further find that except with respect to LaRoche and
Donald Neal, whose alleged discriminatory discharge
will be discussed, infra, the General Counsel has also
failed to prove that the Company terminated any driver
without affording the requisite contractual hearing. Paul
Dietsch prepared a list of employees allegedly terminated
without notice or hearing, and George Sullivan named
some of these and some others However, among those
employees William Burton was not terminated, but tem-
porarily joined the FASH strike in May, Charles Terrien
was terminated for carrying an unauthorized passenger,
which is an exempted offense under the contract, Alan
Broyles was a probationary employee at the time of his
discharge, and the Company alleges that Eldon Shu-
maker quit or went on strike (the alternative being the
General Counsel's contention that he was discriminatori-
ly discharged). As for the remaining employees, the
record evidence fails to identify whether they fell within
the category of employees who were entitled to a hear-
ing, although no reason has been shown why the Gener-
al Counsel could not have presented such evidence. The
inference is warranted, and I so find, that they were not
entitled to a contractual pretermination hearing.59
Paul Dietsch testified that at some unidentified time
since December 1979 he asked Safety Director Broyles
for information why employees were "terminated" (as
reflected on health and pension fund records), and that
Broyles answered that he could not give the information
because he was instructed not to talk to Dietsch. The
General Counsel contends that the Company's refusal to
furnish such information was fully litigated, although not
pleaded in the complaint. If such an allegation was
knowingly litigated, independent of the allegations of the
complaint, it is news to me. However, the General Coun-
sel's contention is sufficiently related to section B(5) of
the complaint to warrant consideration I find that the
contention is without merit. Broyles did not say or infer
that the Company was refusing to furnish such informa-
tion; rather, he was simply informing Dietsch that he
was not authorized to speak to him Dietsch testified that
on October 29, night dispatcher Smith handed him a
note from Kutzler which indicated that Dietsch should
forward all paperwork through the Company's then at-
torney. In the past, Dietsch and Sullivan had not been
shy about contacting Kutzler orally or by letter if they
wanted something. However, with respect to the present
matter Dietsch never bothered to contact Kutzler, Scott
Kutzler, or the Company's attorney until April 1980. In-
stead as indicated by Dietsch's testimony, he simply
dropped the matter, notwithstanding the reason given by
Broyles for refusing to furnish the information I find
that the General Counsel has failed to prove that the
Company violated the Act by refusing to furnish infor-
mation relevant to collective bargaining
i Donald Sims' claim
The collective-bargaining contract provides (art 8,
sec. 3) that- "If the Company requests to meet with the
Union steward over a grievance during normal work
hours and he loses work, he will be paid at the hourly
rate of $5 per hour for all time lost." The contract does
not otherwise provide for reimbursement to stewards in
the performance of their functions Donald Sims requests
that if a contract is found (as it has been) he should as
part of any remedy in this proceeding be held entitled to
ss See also my discussion concerning the termination of Weston
Brigham, infra, in connection with the discharge of Donald Neal
REDWAY CARRIERS
reimbursement at that rate of $5 per hour for work time
which he lost in performing grievance handling as stew-
ard The General Counsel has not taken any position on
Sims' request As previously discussed, Sims has not offi-
cially handled grievances as a FASH steward since late
April 1979 and he resigned from his position as steward
in August 1979 Sims has not filed any pertinent griev-
ance, nor does the evidence indicate that Sims has pur-
sued his claim in any other manner except through this
proceeding. The present complaint, insofar as it alleges
contract violations, is based on alleged employee and
FASH rights under the present September 1, 1979 con-
tract. Sims' claim derives exclusively from the previous
contract. Therefore, Sims' claim goes beyond the scope
of the present complaint and cannot be appropriately
considered in this proceeding Moreover, Sims' claim is
time-barred under Section 10(b) of the Act, as his claim
is based exclusively on alleged company failure to com-
pensate him more than 6 months prior to the filing of
any of the present unfair labor practice charges, i.e., at
the time when he was officially handling grievances on
behalf of FASH.
J Partial concluding findings with respect to alleged
contract violations and unilateral changes prior to the
election
I find in light of the evidence that during the preelec-
tion period the Company did not engage in a course of
conduct which constituted a rejection of FASH's status
as bargaining representative , or a repudiation of their
contract . Kutzler initially indicated to the FASH officials
that he did not think they had a final contract , and that
there appeared to be a question concerning representa-
tion However, when the Regional Director dismissed
UTA's first election petition , Kutzler promptly imple-
mented the new contract in accordance with his under-
standing of its terms , which as previously discussed was
substantially correct . I find that, except as found herein,
the Company did not violate the contract or its bargain-
ing obligations to FASH prior to the election
2 Additional alleged unfair labor practices and
other developments during the period from
September 1 to the election
a Interrogation and threats involving Steward Burton
On October 13, at a tumultuous FASH meeting (the
first FASH meeting as such since the August ratification
meeting), Paul Dietsch designated William Burton as
acting steward. Three days later Kutzler summoned
Burton to his office. Burton testified that as he entered
the door, Kutzler asked him where he stood, and Burton
replied "with the men as usual " According to Burton,
Kutzler showed Burton FASH's mailgram of that date,
in which FASH protested the Company's alleged con-
tract violations and unilateral changes, and Kutzler com-
mented that the Company and FASH had a fight. Burton
replied, in essence, that they could fight it out. They
talked about pensions Kutzler said that the pension plan
was a waste of money, the employees did not need it,
and they would not "get it " Burton responded that his
children would benefit from the insurance policy which
1399
was included in the plan. At a later point in his testimo-
ny, Burton testified that Kutzler said he would not pay
the pension fund. According to Burton, Kutzler asserted
that "you guys are sticking this contract down my
throat, but I'm going to stick it up your ass." Burton re-
plied that Kutzler was already doing that
Kutzler testified that he summoned Burton to his
office and explained Kutzler's understanding of the dis-
puted items Kutzler argued that the contract permitted
the Company to issue work rules without prior negotia-
tions, and that FASH agreed to the spotting fee Burton
said that he was not involved in anything between
FASH and the Company, but was there to protect the
drivers. Kutzler told Burton, in essence, to get Dietsch
to clarify FASH's position Kutzler, in his testimony,
denied saying that he would not contribute to the pen-
sion plan, or that the plan was a waste of money.
Kutzler testified that he did not even know the benefits.
However, Kutzler admitted that he did explain the Com-
pany's understanding of the contribution, including the
sliding scale. Kutzler did not otherwise deny Burton's
version of the conversation.
I credit Burton, except that I do not credit his testimo-
ny that Kutzler said he would not contribute to the pen-
sion fund. The Company had recently paid its contribu-
tion for September, and the following month the Compa-
ny sent in its full contribution for October. The evidence
indicates that but for the election agreement and with-
drawal of charge allegations on December 13 the Com-
pany intended to continue making its contribution to the
pension fund in timely fashion. I also credit Kutzler's
other testimony concerning statements made in their con-
versation, except to the extent controverted by Burton. I
find that Kutzler did not unlawfully interrogate Burton
by asking him where he stood. Kutzler had a legitimate
reason for posing that question to Burton, who as stew-
ard was the successor to Donald Sims. In light of the
history of that stewardship under Sims, which was de-
scribed in extensive testimony presented by the General
Counsel, Dietsch had every right to know where Burton
stood. Many of the existing problems had come about at
least in part because of confusion over where Sims stood,
e g., the extent of his authority, and whether he spoke
and acted as a subordinate to the FASH representatives,
as spokesman for the drivers, or on his own initiative.
Dietsch properly wanted to know whether Burton in-
tended to act in a subordinate capacity to Dietsch, or
whether like Sims, he expected to pursue a more inde-
pendent course of action Compare Joanna Western Mills
Co, 244 NLRB 672 (1979). By his answer and subse-
quent comments, Burton indicated that like Sims, he in-
tended to act in what he regarded as the best interests of
the employees, although that course might not always
coincide with Dietsch's views Burton's answer in effect
constituted an invitation for Kutzler to express his own
views about the contract and its meaning. In permissible
fashion, Kutzler argued that the pension plan was of
questionable value to the employees. Burton's response
about his children indicated that Burton understood that
Kutzler was arguing about the merits of the plan, and
not that he was refusing to honor his obligation to make
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contributions to the plan Whether right or wrong,
Kutzler could lawfully argue both the merits and his un-
derstanding of the meaning of the contract and his agree-
ments with FASH (As will be discussed, FASH and the
employees enjoyed similar rights, the Company's right
deriving from Sec. 8(c) of the Act and that of FASH
and the employees from Sec 7.) For the reasons previ-
ously discussed , I find that Kutzler did not engage in an
unlawful threat by saying that he would stick the con-
tract "up their asses ." Therefore, I am recommending
that the pertinent allegations of the complaint (C(3) and
(4)) be dismissed
b The Beagley transfer
In October 1979, Janes Beagley, who had been driv-
ing for the Company for some 6 years ( as an employed
driver rather than as an owner-operator) was hauling
pigs to and from American Motors. These runs are clas-
sified as "short-haul," i e , within a 150-mile radius of the
Kenosha terminal In early October, Beagley met
Kutzler and his wife at the Lake Forest Oasis truck stop.
According to Beagley, he (Beagley) said that he was dis-
turbed about the $15 spotting fee, and that it was unfair
and especially hard on short haul drivers Kutzler an-
swered that somebody had to pay for the pension plan.
Beagley testified that he could not recall whether he
asked Kutzler to cut the fee to the former 2-1/2 percent
of gross revenue Kutzler testified that Beagley asked
him to cut the fee from $15 to 2-1/2 percent but that he
refused on the ground that he could not negotiate a sepa-
rate contract with Beagley I credit Beagley and Kutzler,
and find that their testimony together reflects the sub-
stance of their roadside conversation
Daniel Webster testified without contradiction that in
mid-October Kutzler told him that Beagley was making
$500 to $600 per week and complaining about paying $15
for each load Webster replied that others including him-
self were also mad about the fee. On October 29, when
Beagley reported to work, Operations Manager Summers
told him that he would not be hauling pigs anymore and
that he should come in later for assignment to a road
truck Beagley testified that later that day he asked
Kutzler why he had been transferred to the long haul
board, and Kutzler answered that it was because Beagley
was complaining about the spotting fee According to
Beagley, Kutzler added that Paul Dietsch complained
about a driver having $45 taken off his paycheck, and
that he (Kutzler) pulled his file and found that Beagley
was the only driver that week who had $45 taken off his
pay Kutzler said that he would no longer use company
trucks on short hauls, and that they would all be running
on the road. Kutzler offered to permit Beagley to haul
pigs with his own truck, i e , as an owner-operator, but
refused to buy a truck for Beagley On November 9,
Summers offered a pig haul to Beagley, but Beagley de-
clined because he had been working all day, and accept-
ance of the load would have placed him in a position
where he would unlawfully be working in excess of 10
hours
Kutzler testified that about 2 or 3 weeks after his road-
side conversation with Beagley, a dispatcher reported
that Beagley was complaining that he was not making
money on pigs Kutzler summoned Beagley, who com-
plained that the spotting fee was "killing" him Kutzler
answered that he was not making money on the pig
hauls with Cardinal tractors, i e , company power units,
because of wear and tear and vandalism, and could not
afford to keep company equipment on that run. Beagley
replied that he did not want to lose the run. Kutzler of-
fered to put Beagley on the short board as an owner-op-
erator, but Beagley declined, saying that he preferred to
retain his seniority spot on the board, and that he would
let Burton and the NLRB handle the matter Beagley did
not file a grievance; instead, on the advice of FASH, he
permitted the matter to proceed under FASH's unfair
labor practice charge
In its position statement to the Board's Regional
Office, dated December 4, 1979, the Company by its
counsel asserted that Beagley was transferred because
the Company no longer uses its own vehicles for short
haul, but uses owner-operators in order to avoid damage
to its own equipment Kutzler testified that he took
Beagley off pigs because he decided not to use Cardinal,
i e , company equipment on those runs, but instead to use
only "independent contractors" i.e., owner-operators In
fact, Kutzler continued to use company equipment on
the pig hauls after Beagley's transfer Company trucks
have a distinctive appearance, both in color and shape,
and are also identified with Cardinal's name Alan
Broyles and Marlene Graham, both of whom were em-
ployed Redway drivers, testified that they continued to
use company trucks to haul pigs, and Graham testified
that she even used company road equipment for spotting
at American Motors Charles LaRoche testified that he
saw company trucks hauling pigs in November and De-
cember, and Alan Broyles testified that nearly every day
he saw Pookie Kutzler hauling pigs with company equip-
ment Pookie Kutzler was not presented as a witness in
the case. Richard Kutzler, in his testimony, admitted at
one point that one or two company trucks may have
hauled pigs since October, and at another point, that
company trucks were used on several occasions when
owner-operator equipment broke down
I credit the testimony of the employee witnesses, and I
credit Beagley's testimony concerning Kutzler's explana-
tion for his transfer I find that the reasons advanced by
Kutzler in his testimony were pretextual, and that
Kutzler transferred Beagley to the long haul board in re-
prisal for his complaints about the $15 spotting fee.
Kutzler's course of conduct at this particular time (short-
ly after the Regional Director reopened the contract bar
issue, and when Kutzler was in the process of changing
attorneys) indicates, as will also be discussed in connec-
tion with the layoff of Donald Sims, that Kutzler was
getting tough with employee dissention It is immaterial
whether in fact Beagley was the only driver who was
charged $45 in spotting fees during the week ending Oc-
tober 20. Organizer Sullivan's recapitulation of spotting
fees, based on subpoenaed company records, indicates
that Beagley was charged $90 in spotting fees that week
(by far the highest amount for any driver) and that an-
other driver was charged $45 in spotting fees. The Com-
pany also correctly points out in its brief that Beagley
REDWAY CARRIERS
was not conspicuously active on behalf of FASH, nor
was he the only driver who was complaining about the
spotting fee However, Kutzler knew that Beagley was
persistently complaining about the fee, and the nature of
his work and the Company's records indicate that he was
among those drivers who were hardest hit by the spot-
ting fee. Indeed, Kutzler admitted in his testimony that
he summoned Beagley to his office on October 29 be-
cause of Beagley's complaints. Therefore it is evident on
the face of Kutzler's testimony that his alleged concern
about damage to company equipment was simply a ra-
tionalization Kutzler was aware that if Beagley pursued
a grievance or unfair labor practice charge and was suc-
cessful, he might stand to recover a substantial amount of
money from the Company Therefore Kutzler chose to
replace Beagley with a more compliant individual or in-
dividuals, notably his brother Pookie.
I find that by transferring Beagley to the long haul
board because of his complaint about the spotting fee,
the Company violated Section 8(a)(1) and (3) of the Act
As Kutzler well knew, Beagley's complaints were shared
by many if not most of the other drivers Ever since Sep-
tember 1, as Kutzler also knew, the employees and
FASH had been contemplating and working toward
common action to redress their grievances, principally
the spotting fee, although they disagreed on the form of
such action, i.e., strike action, resumed negotiations with
the Company, Board proceedings, replacement of FASH
with another bargaining representative, or some other
means Moreover, Beagley's position was substantially in
accord with that of FASH. Beagley was principally con-
cerned with the amount of the fee, whereas FASH was
complaining about the manner in which it was imposed
However, both were in agreement that the Company
was wrongfully charging the fee As heretofore found,
FASH's interpretation of the contract was erroneous
However, both FASH and Beagley had a colorable and
good-faith claim that the Company was either violating
the contract or engaging in improper unilateral action
Even in the absence of a meritorious claim, there was
ample precedent to indicate that through the grievance
procedure, or further discussion or negotiation, Kutzler
might be persuaded, as Sims and Webster had previously
done, to modify his application of the spotting fee
Therefore, Beagley's transfer constituted the kind of un-
lawful conduct which tends to discourage membership in
a labor organization and to interfere with employees'
protected concerted activities. See my discussion in
Crown Wrecking Co., 222 NLRB 958, 962-963 (1976) See
and compare Pelton Casteel, Inc. v. NLRB, 627 F.2d 23,
28 (7th Cir. 1980).60
60 Beagley testified that he lost about $ 150 per week in earnings as a
result of his transfer to road driving Kutzler testified that by reason of
Beagley's seniority he made as much if not more than he did before his
transfer For the purpose of determining whether Kutzler acted unlawful-
ly, the difference is immaterial A transfer which is discriminatorily moti-
vated is unlawful regardless of whether the transfer adversely affects the
wages or other working conditions of the transferred employee See Hit
'N Run Food Stores, 231 NLRB 660, 666 (1977) The difference in Beag-
ley's appraisal and that of Kutzler may also be affected by the applicabil-
ity of the spotting fee, and on Beagley's seniority rights to short haul
board assignment The rider (art 26) of the contract provides in pertinent
part
1401
c. Employee dissident movements and the layoff of
Donald Sims
After September 1 the employees were, to put it
mildly, in a state of near total confusion as to which way
to turn As previously found, Sims circulated a new peti-
tion which called for a FASH local The ink was hardly
dry on this petition when on September 8 Sims chaired a
breakaway meeting of employees at Varney's Bar, which
culminated in a petition for the establishment of a new
union, subsequently named United Truckers of America
Sims was elected chairman of UTA Sims requested
Kutzler to recognize UTA, but Kutzler refused because
UTA was not "certified " After the Regional Office dis-
missed UTA's first petition, the Teamsters entered the
picture On September 29, at the suggestion of and large-
ly through the efforts of Donald Neal the employees had
another meeting Neal invited Dietsch and Kutzler to
attend. Dietsch declined, but Kutzler came to the meet-
ing, which was held in a nonworker area of the Kenosha
terminal Kutzler discussed among other things his posi-
tion on the disputed contract questions Kutzler conced-
ed that under the Regional Director's ruling, he could
bargain only with FASH Kutzler defended his right to
issue drivers' rules and to charge the $15 spotting fee.
After Kutzler left, the employees conducted a secret-
ballot vote on what course of action they should take.
However, the ballot form was so complex that the em-
ployees were confused as what they were being asked to
decide Donald Neal explained the ballot, which he had
prepared, and the employees had a second vote Donald
Sims and Edward Shore testified that among the three
choices on the ballot for bargaining representative
(FASH, UTA, and Teamsters) a majority voted for
Teamsters Donald Neal, Marlene Graham, and Alan
Broyles, who counted the ballots, testified that a majori-
ty voted to retain FASH 6 i Given the highly partisan
views of these witnesses at the time of the present hear-
ing, I am not persuaded as to the credibility of either
version. Frankly, I do not know who won the vote. On
October 17 Sims filed a second petition with the Board
on behalf of UTA, which was shortly followed by the
Teamsters' petition. On October 26 the Regional Direc-
tor revoked his earlier order and set all three petitions
The dispatching of equipment and operators will be as follows
Available equipment on the short haul board will be offered loads in
the following order each day
I One truck. with operator, owned by-E L Warthen
2 One truck, with operator, owned by-Cardinal Leasing, inc -
108
3 One truck, with operator, owned by-R Kutzler
The rider further provides that
The list as set forth in item C above is subject to change from time to
time as leases are canceled or owners quit
Kutzler testified without contradiction that Cardinal sold the unit iden-
tified as "108," that R Pookie Kutzler' strucks were given the second
and third positions on the list, that Cardinal trucks were given the fourth
position, and that when Beagley was assigned to the American Motors
run after having previously worked on the Ocean Spray run, he was as-
signed to that fourth slot The General Counsel does not contend, nor do
I find that this procedure violated the contract I find that Kutzler' s testi-
mony reflects Beagley's position on the short haul board as of October
29
61 No tally of ballots was presented in evidence
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for hearing. During October 13 and 27 most of the em-
ployees continued to attend and participate in FASH
meetings. At Sims' call, most of the employees walked
out of the October 13 meeting. However, at the October
28 meeting , the same Donald Sims moved for the elec-
tion of William Burton as steward It is evident that in
September and October many employees were signing
any petition that came their way. If these developments
have any significance at all, it is that no consensus had
emerged among the employees as to what course of
action they should take
In the meantime, following the end of the Ocean
Spray strike, Sims returned from his tour of duty as "ter-
minal manager" and tried working in Kenosha as a spot-
ter However, he found that the effects of his prior
injury prevented him from performing this work. The
collective-bargaining contract provides, in article 15, sec-
tion 7, that.
B In the event that an operator becomes disabled
due to an accident or sickness which is directly re-
lated to his fulfilling his duties for the Company,
and cannot pass the required physical examination
for commercial drivers, the Company shall make
every possible effort to provide said operator with a
non-driving job
Kutzler testified that this provision also reflects a long-
standing company policy In August, Kutzler assigned
Sims to work in the dispatch office at Kenosha Sims as-
sisted the dispatchers by answering the telephone, relay-
ing messages, and performing related tasks I find that
Sims did not exercise the authority of a dispatcher, that
he was not a supervisor or agent of the Company within
the meaning of the Act, and that Kutzler did not assign
Sims to the dispatch office for the purpose of undermin-
ing FASH or promoting any rival labor organization
Nevertheless, Sims used the dispatch office premises
and facilities, including the telephone, to promote the in-
terests of UTA Among other activities, Sims solicited
drivers to revoke their FASH dues-checkoff authoriza-
tions 62 Kutzler testified that Operations Manager Sum-
mers complained to him about Sims' activities, that
Kutzler admonished Sims to "Can the shit," and that
each time he was warned Sims would temporarily stop
his activities and then resume them. Kutzler further testi-
fied that in September and October Paul Dietsch com-
plained to him that it was not right for Sims to be work-
ing in the dispatch office, that drivers were complaining,
and that Sims was taking advantage of his job Accord-
ing to Kutzler, Dietsch did not claim that Sims was part
of management Dietsch testified that he did not care
whether Sims worked in the dispatch office, but would
have preferred that Sims formally join management.
However, he did not deny making the complaints to
Kutzler I credit Kutzler's testimony concerning those
complaints
62 George Sullivan, who had no personal knowledge in the matter, tes-
tified that Safety Director Broyles solicited the revocations In fact, as
indicated by the testimony of Marlene Graham, Sims solicited such revo-
cations in order to make FASH "stand up and take notice -
On October 29, the same day he transferred Beagley,
Kutzler laid off Sims Kutzler told Sims that he was not
needed in the dispatch office any more and that he could
return to work when he obtained the approval of his
doctor If Sims was violating a nondiscriminatory com-
pany rule by engaging in union activities on his own
working time or that of other employees, the Company
could lawfully have laid him off from his office job for
that reason. See Republic Aviation Corp. v. NLRB, 324
U S. 793 fn 10 (1945) However, Kutzler categorically
testified that Sims' activities had nothing to do with his
layoff, but that Kutzler laid him off because there was no
place for him when dispatcher Duane Werthen returned
from leave. This explanation does not withstand close
scrutiny. Werthen testified that he returned to work in
early November, after Sims' layoff Werthen also testi-
fied that the dispatch office was busier in November than
it had been in August, because of the end of the Ocean
Spray strike Additionally, Kutzler's niece Cheryl
Kutzler, who also worked in the office and whose duties
included answering the telephone, quit her job about the
same time that Sims was laid off. It is evident that if
there was enough work for Sims in August, then there
was also enough work for him in late October and No-
vember. Moreover, the timing of Sims' layoff and his
subsequent recall are significant Kutzler laid off Sims
when he learned that the Regional Office would proceed
on the UTA and Teamsters election petitions, but he re-
called Sims to work immediately after the representation
hearing, when Sims withdrew the UTA election peti-
tion 63
FASH's growing antagonism toward Sims hardly re-
quires further documentation at this point. Sims testified
without contradiction that on September 18 FASH Presi-
dent Hill told him that he had stirred up a mess with his
election petition, and that if Sims did not straighten his
act, Hill would personally take him behind a building
Significantly, Dietsch did not complain to Kutzler that
Sims was engaging in UTA activity on working time, or
that Sims was functioning as a part of management.
Rather, the thrust of Dietsch's complaints was addressed
to the locus of Sims' work, i e , that by his presence in
the dispatch office, regardless of the nature of his job or
the time or place of Sims' UTA activities, Sims enjoyed
an unfair advantage I find that Dietsch requested
Kutzler to lay off Sims because of Sims' activities on
behalf of UTA, that Kutzler acceded to Dietsch's request
when he laid off Sims, and that but for Dietsch's requests
Sims would not have been laid off. FASH thereby vio-
lated Section 8(b)(2) and (])(A) by causing the Company
to lay off Sims because of his UTA activities, and the
Company violated Section 8(a)(3) and (1) of the Act by
complying with those requests. Pacific Intermountain Ex-
press Co., 215 NLRB 588, 599 (1974); Mid-States Metal
63 Sims testified at one point that Sims returned to work as a spotter in
late December However , the General Counsel presented in evidence a
settlement sheet which indicated that Sims was back to work by Decem-
ber 22 At this point Kutzler admitted that Sims probably returned to
work about December 15 I find that Kutzler decided to recall Sims
when UTA withdrew its election petition
REDWAY CARRIERS
Products, 156 NLRB 872, 899 (1966), enfd 403 F 2d 702,
704 (5th Cir 1968) 64
d Interrogation involving Charles LaRoche
LaRoche testified that on Tuesday, December 18, he
asked Scott Kutzler if LaRoche could be in town for a
meeting which was scheduled for Saturday, December
22 Scott Kutzler said that he would try to accommodate
LaRoche. LaRoche volunteered that he wanted to find
out who represented the drivers Neither Scott Kutzler
nor Larry Summers, who was present during this con-
versation , asked any questions or expressed any opinions
about the meeting. LaRoche testified that he went to the
meeting and then came in late to work According to
LaRoche, Scott Kutzler asked if LaRoche was taking a
load to Iowa, and LaRoche said he was LaRoche testi-
fied that Scott Kutzler then asked if he went to the
FASH meeting, and LaRoche answered that he did, and
"finally found out the truth ," i e , that they had a con-
tract . Scott Kutzler made no reply . On cross-examination
LaRoche testified that he began the conversation by
saying that he was taking a load to Iowa Scott Kutzler
did not testify about the conversation. I credit LaRoche's
initial version of the conversation However, I find that
the Company did not thereby unlawfully violate the Act
Scott Kutzler had a legitimate reason to ask whether
LaRoche attended the meeting; specifically, to ascertain
whether LaRoche had a valid reason for being late to
work See Mueller Brass Co, 220 NLRB 1127, 1138
(1975), revd on other grounds 544 F 2d 815 (5th Cir
1977) In the circumstances, Scott Kutzler's inquiry was
not coercive He expressed no views about the meeting
or related issues However, both on December 18 and 22
LaRoche indicated that he was eager to talk about the
meeting It had long been common practice for employ-
ees and supervisory personnel, including Richard
Kutzler, to freely talk among themselves about upcoming
64 The General Counsel asserts with obvious lack of enthusiasm (Br
46) that Sims' layoff may well not have been a classic case of discrimi-
nation " Most of the allegations of the complaint do not involve "classic"
cases of Sec 8(a)(1), (3), or (5) Classic or not, the actions of FASH and
the Company constituted discrimination against Sims , just as the transfer
of Beagley constituted discrimination The General Counsel 's brief on the
Sims' matter is permeated with denunciations of Sims' conduct and legal-
ly untenable excuses for FASH's conduct The complaint does not allege
that the Company violated Sec 8(a)(2) of the Act by laying off Sims, al-
though such a contention would be at least arguably warranted See Mid-
States Metal Products , supra , fn 65 The General Counsel 's lack of enthu-
siasm for the Sims' allegation is understandable Kutzler laid off Sims at a
crucial time for UTA, and his layoff demonstrates that even at this late
stage Kutzler was not inclined to engage in a campaign to undermine
FASH Rather , Kutzler's course of conduct indicates that he was trying
to placate both Dietsch and Sims On November 10 Kutzler permitted
Dietsch to enter the terminal for the purpose of soliciting FASH mem-
bership and checkoff authorizations , but he also permitted Sims , as "that
guy from the other union " to talk to the shop employees I attach no
significance to Kutzler ' s prior action in transferring the shop employees
from the Redway payroll to the Cardinal payroll The Company always
applied the collective -bargaining contract to all of its employees , whether
they were on the payroll of Redway , Cardinal or another equipment
owner , it continued to do so after November 10, and the Company never
contended that Redway and Cardinal are separate employers Kutzler
promptly rejected Sims' demand that he be recognized as the representa-
tive of the shop employees
1403
meetings 65 The evidence fails to indicate that the matter
had any relation to LaRoche's subsequent termination
Indeed, the Regional Director declined to proceed on
FASH's allegation that LaRoche's termination was dis-
criminatorily motivated I find that Scott Kutzler's ques-
tion did not constitute unlawful interrogation , and there-
fore I am recommending that the pertinent allegation of
the complaint (C(8)) be dismissed Mueller Brass, supra.66
e Threat involving Marlene Graham
Graham testified that on January 7 or 8 after complet-
ing an Ocean Spray run she called in for another assign-
ment According to Graham , Operations Manager Sum-
mers told her that "you no longer can run short-board
because your name is involved in too many union activi-
ties and charges against the Company " Summers did not
indicate what union he meant, although both FASH and
Teamsters were competing at that time , and the Compa-
ny was taking a neutral position Graham testified that
the next day , in accordance with her seniority position,
she picked a short haul run, and that since that time she
had handled both long and short hauls The General
Counsel does not contend that the Company discrimina-
torily changed Graham's working conditions . Summers,
in his testimony , denied Graham 's version of their con-
versation Summers testified that he told Graham that
she would no longer be running short haul board exclu-
sively because she was not in her proper seniority slot,
but would return to her former situation of running both
long and short hauls Summers further testified that like
other drivers Graham is assigned loads on the basis of se-
niority Sometime after this conversation , Graham went
out on a date with Summers Neither the General Coun-
sel nor the Company presented records which would in-
dicate whether Graham was in fact wrongly assigned to
short haul work However Graham, who began driving
for the Company in May 1979, was relatively low in se-
niority. Around the time of the conversation, Alan
Broyles, who had more seniority than Graham (he began
in October 1978), was transferred from spotting to short
haul driving This fact tends to corroborate Summers'
testimony I further find that Graham's version of the
conversation is inherently implausible As of January
1980, Graham was not involved in any charges against
the Company Graham's name did not come up in con-
nection with any charges until July 21, 1980, when the
General Counsel moved to amend the complaint to
allege, inter alia, violations involving Graham Assuming
that by "union activities" Summers meant FASH activi-
ties (and this is not clear even from Graham's testimony),
Graham as of January 1980 was not conspicuously active
on behalf of FASH As late as October, Graham tended
to follow Donald Sims' leadership and at his request on
65 Alan Broyles testified that Larry Summers asked him whether he
was going to the September 8 meeting The General Counsel does not
allege that this constituted unlawful interrogation
66 Peninsula Assn for Retarded Children & Adults, 238 NLRB 1099,
1107 (1978), principally relied on by the General Counsel (Br 52 ), is not
in point In that case , the employer had no evident valid reason for
asking the employee whether she was going to a union meeting The em-
ployer's supervisor , who brought up the subject , also tried to obtain addi-
tional information about union activities
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
September 26 she signed a form revoking her FASH
checkoff authorization . (About November 7, she and
some 12 other employees signed new checkoff authoriza-
tions for Paul Dietsch ) I credit Summers, and therefore
I am recommending that the pertinent allegation of the
complaint (C(10)) be dismissed.
3. Concluding findings with respect to FASH's
objections to the election and whether the election
should be set aside
For the reasons previously discussed in connection
with the unfair labor practice complaint, I find that
FASH Objections 5 (imposition of the spotting fee), 7
(interrogation), 14 (failure to make pension payments),
and 16 (failure to forward dues) are without merit and
should be overruled As for Objection 11 (telling some
drivers that they would not be paid according to the
contract), the only credible and arguably valid evidence
in support of this objection consists of Kutzler's ex-
pressed opinion, made in a noncoercive manner, that the
sliding scale of contributions under the pension plan ap-
plied to the drivers' wages rather than to gross truck
revenue This constituted a permissible expression of
opinion Assuming, arguendo, that Kutzler's expressed
opinion constituted a material misrepresentation as to the
employees' contract rights, FASH had full opportunity
and did to respond to Kutzler's assertion, just as the
Company had ample opportunity to respond to FASH's
erroneous positions concerning the spotting fee and ret-
roactivity. Therefore, this objection should be overruled
Hollywood Ceramics Co, 140 NLRB 221, 224 (1962);
General Knit of California, 239 NLRB 619, 620 (1978)
For the reasons previously discussed, the Beagley
transfer may properly be considered as objectionable
conduct I find that by discriminatorily transferring
Beagley from the short haul board the Company improp-
erly interfered with the conduct of a free and fair elec-
tion It may seem incongruous to set aside the election
because the Company punished Beagley for invoking al-
leged rights which FASH had waived through collective
bargaining. However, at the time both FASH and Beag-
ley were exercising their statutorily protected right to
protest the spotting fee, its implementation, and its
impact on the drivers
Although FASH's responsibility for the spotting fee
was the principal issue in the campaign, Beagley's trans-
fer may have intimidated or discouraged other employ-
ees from actively supporting FASH or the positions
taken by FASH. In Enola Super Thrift, 233 NLRB 409
(1977), the Board held-
Our normal policy is to direct a new election when-
ever an unfair labor practice occurs during the criti-
cal period since "[c]onduct violative of Section
8(a)(1) is, a fortiori, conduct which interferes with
the exercise of a free and untrammeled choice in an
election." Dal-Tex Optical Company, Inc., 137
NLRB 1782, 1786-87 (1962). The only recognized
exception to this policy is where the violations are
such that it is virtually impossible to conclude that
they could have affected the results of the election.
I do not agree with the Teamsters' argument (Br 12-13)
that Beagley's transfer, if held unlawful, cannot be used
as a basis for setting aside the election because the Com-
pany did not indicate any preference for Teamsters By
reason of the positions taken by FASH, the Beagley
transfer constituted the kind of conduct which tended to
adversely affect FASH, and therefore may be used as a
basis for setting aside the election. Concourse Nursing
Home, 230 NLRB 916, 919 (1977) (cited in Flat River
Glass Co, 234 NLRB 1307 (1978), relied on by Team-
sters in its brief).
The Sims layoff is not alleged nor may it be used as a
basis for setting aside the election The Board "has con-
sistently taken the view that wrongdoers cannot be the
beneficiaries to their wrongdoing irrespective of who the
wrongdoers were " Willis Shaw Frozen Express, 209
NLRB 267, 269 (1974) See also Packerland Packing Co,
185 NLRB 653, 654 (1970) Conversely, FASH's miscon-
duct in connection with Sims' layoff cannot be used as a
reason for not setting aside the election. Where one party
(here the Company) engages in conduct which interferes
with the employees' free choice in the election, then the
election must be set aside regardless of whether a losing
party (here FASH) also engaged in improper or unlawful
activity NLRB v. Santee River Wool Combing Co, 537
F 2d 1208, 1212 (4th Cir 1976) However, the same
policy does not extend to the propriety of a bargaining
order without recourse to an election Allou Distributors,
201 NLRB 47 (1973).
I have found one other instance of unfair labor prac-
tice conduct which occurred during the critical period,
namely, the Company's failure to accord a hearing to
FASH and Charles LaRoche prior to effectuating LaR-
oche's termination This matter is not covered by any
outstanding objection. FASH initially filed, but subse-
quently withdrew its objections that the Company re-
fused to discuss grievances (Objection 8), and that La-
Roche was discriminatorily terminated (Objection 17)
As a general rule, "matters litigated in a complaint case
which is consolidated with a representation case can
form a basis for setting aside the election even though
those matters were not raised by the objections " Monroe
Tube Co., supra, 220 NLRB at 305, citing Dawson Metal
Products, 183 NLRB 191, 200-201 (1970), revd on other
grounds 450 F 2d 47 (8th Cir 1971) The line of cases
including Monroe Tube generally involved allegations
which were uncovered as a result of the Region's investi-
gation, although the Board has not expressly drawn any
distinction in this regard In any event, I find that the
LaRoche matter cannot be used as a basis for setting
aside the election because, although it arose after the rep-
resentation hearing, the subject matter falls within a cate-
gory which FASH waived as a ground for setting aside
the election FASH's October 29 unfair labor practice
charge (Case 30-CA-5479) alleged, inter alia, that the
Company was violating the Act "by failing and refusing
to implement and/or otherwise adhere to the terms of
the current collective-bargaining agreement." As of the
representation hearing, FASH and the Company under-
stood each other's position FASH was standing on its
September 1 contract, the Company contended that
REDWAY CARRIERS
there was no contract, and both sides were prepared to
litigate the contract bar issue Nevertheless, FASH chose
to withdraw the pertinent allegations of the complaint,
and all other allegations except the Beagley transfer, and
in effect to waive its contract claim as a bar to the elec-
tion If FASH did not thereby effectively waive that
claim as a bar, then the Regional Director could not
have proceeded to an election See Section 117304 of
the Board's Field Manual, supra The unlawfulness of the
Company's action with respect to the LaRoche matter
turns upon a contract right There is no contention, nor
have I found that FASH and LaRoche's right to a hear-
ing derived from any source other than the contract, or
that LaRoche was discriminatorily terminated. FASH's
charge was of a continuing nature, i e , that the Compa-
ny was failing and refusing to implement and adhere to
their contract In this context it makes no sense to argue
that nothwithstanding FASH's waiver, FASH neverthe-
less could properly object to the election on the ground
that between December 13 and the completion of the
election, the Company failed to "implement and/or oth-
erwise adhere" to their contract 67 However, as to the
Beagley matter, the parties knew or should have known
that FASH reserved its right to object on this ground in
the event that it lost the election
I find on the basis of the Beagley transfer that the
election should be set aside. However, I find that the
Beagley transfer does not, in the context of the present
case, constitute the kind of conduct which tends to pre-
clude the probability of a fair rerun election after the ap-
plication of traditional remedies Indeed, FASH ac-
knowledged as much when it chose to proceed with the
election notwithstanding the pendency of the Beagley al-
legation Moreover, the unlawful layoff of Donald Sims,
which occurred on the same day as the Beagley transfer
and was comparable in gravity, constituted the kind of
conduct which tended to discourage employees opposed
to FASH Although the Laura Modes 68 line of cases, in-
cluding Allou Distributors, supra, involved union threats
and acts of violence, the Board has not indicated that
only such forms of misconduct may be taken into consid-
eration in determining whether a bargaining order is
warranted without further recourse to the election proc-
ess I further find that a second election is warranted in
accordance with the parties' agreements concerning the
January 1980 election It is an implicit condition of
FASH's request to proceed with that election, that the
Company would not, during the further pendency of the
election proceeding, engage in any unlawful or other im-
proper conduct which was not waived by the withdraw-
al of outstanding unfair labor practice allegations. This is
because it cannot be presumed that FASH would once
again waive contract bar to the election under such
changed conditions However, the Beagley allegation did
not fall within that category Rather, by filing a request
to proceed, notwithstanding the pending Beagley allega-
, Therefore, the other allegations of contract violations, even if they
had been found to be meritorious, could not be used as a basis for setting
aside the election The same holds true for the alleged assistance to UTA
and threats and interrogation involving Willam Burton All of these mat-
ters were covered by the withdrawn allegations of FASH's charge
68 Laura Modes Co 144 NLRB 1592 (1963)
1405
tion, FASH impliedly indicated that it was agreeing to a
second election if the Beagley transfer were held unlaw-
ful, and when that matter was remedied through the use
of traditional Board remedies In sum, as of January 12,
1980, a second election was warranted. However, I shall
reserve until after my findings on the postelection allega-
tions, the question of whether those developments war-
rant a different remedy
F Alleged Unfair Labor Practices and Other
Developments After the Election
I Contract violations revisited
FASH's representative status and its collective-bar-
gaining contract with the Company remained in effect
after the election The result would be the same even if I
had determined that the election was valid and that
Teamsters should be certified as bargaining representa-
tive As the Board stated in Trico Products Corp , 238
NLRB 1306, 1307 (1978)
The well-established rule concerning election results
is that they are not effective until certification To
hold otherwise is to invite instability during the
transition period when the employees' choice of
representative is in doubt Election results are not
always determinative If the status of the parties
were to change immediately upon the tally of bal-
lots, the possibility of sustained objections and rerun
elections might lead to a number of changes in the
collective-bargaining relationship before a represent-
ative is finally certified. The general rule that the
election results are not effective until certification
lends certainty and stability to the process, since the
parties may safely maintain the status quo until the
representation question is conclusively resolved by
the Board
Therefore, since January 1980 the Company has violated
its contract, its bargaining obligations to FASH, and Sec-
tion 8(a)(5) and (1) of the Act by failing and refusing to
forward dues withheld from employee paychecks,
making required pension plan contributions, and granting
vacation pay It is immaterial that some contract provi-
sions tend to benefit FASH as well as the employees or
that the Company wishes to maintain a position of neu-
trality as between FASH and Teamsters See Presbyterian
Hospital, 241 NLRB 996, 999 fn 9 (1979), citing Trico
Products, supra
2 The FASH strike and strike misconduct
In early April 1980, Paul Dietsch sent a letter to
Kutzler in which he requested a meeting between FASH
and the Company concerning alleged contract violations
Dietsch alleged in sum that the Company was violating
its contract and obligations to FASH by failing to meet
with FASH, denying retroactivity to April 1, 1979,
paying some drivers less than 27 percent, failing to make
pension contributions, and discharging employees with-
out notice to FASH or a hearing Dietsch identified only
Charles LaRoche by name Dietsch also requested that
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they discuss vacation schedules for paid vacations and
application of the union-security clause, and requested a
list of all employees fired since January 1, 1980 Kutzler
followed up this letter with a second letter dated April
14, in which Dietsch urged Kutzler that they resolve
their disputes through negotiation rather than litigation.
However, this letter crossed in the mail with Kutzler's
reply dated April 15 to Dietsch's first letter Kutzler reit-
erated the Company's position that they had no contract,
and asserted that since September 1979 the Company had
a good-faith doubt as to FASH's majority status. Howev-
er, Kutzler concluded that "if you want to meet to dis-
cuss wages, hours, or conditions of employment pursuant
to our obligations under the law, please contact me or
my attorneys and we will see if a mutual date can be
agreed upon." As previously discussed, Kutzler testified,
but Dietsch denied, that Dietsch refused to meet with
counsel present. However, the evidence fails to indicate
that Dietsch ever contacted Kutzler or his attorneys for
the purpose of setting up a meeting, as proposed in
Kutzler's letter. I credit Kutzler and I find that Dietsch
refused to meet Kutzler with counsel present.
On April 26, at a FASH meeting which was attended
by about 12 persons, of whom only about 5 were Com-
pany employees, FASH voted to strike the Company. By
mailgram dated April 27, FASH President Hill notified
Kutzler that:
YOU ARE HEREBY INFORMED THAT DUE
TO YOUR FAILURE TO MEET AND BAR-
GAIN REGARDING THE GRIEVANCES
THAT WE HAVE AGAINST YOUR COMPA-
NY YOU ARE NOTIFIED THAT THE UNION
WILL ENGAGE IN STRIKE ACTIVITIES.
CONSIDER THIS YOUR 72 HOUR NOTIFICA-
TION AS PROVIDED FOR IN ARTICLE
NUMBER 9 OF OUR CONTRACT. YOUR
CONTINUING UNFAIR LABOR PRACTICES
WILL NO LONGER BE TOLERATED BY
THIS UNION.
Article 9 of the contract (grievance procedures) provides
that when the Company refuses to make payday or
submit checkoff dues to FASH, FASH "shall give 72
hours' notice before engaging in strike activity." In fact,
the Company was refusing to forward dues to FASH,
and as heretofore found, its refusal was an unfair labor
practice. FASH notified the Company's employees of its
intention to strike the Company as of May 3 "because of
the Company's unfair labor practices."
I find that the Company did not refuse to enter into
discussions as requested by Dietsch. Rather, Dietsch re-
fused to meet with or in the presence of company coun-
sel. Although the Company adhered to its position that
there was no contract, and questioned FASH's majority
status, it cannot be presumed, in the absence of a meet-
ing, that the Company would fail to negotiate with
FASH "pursuant to our obligations under the law."
However, as of April and May 1980 the Company had
engaged and was engaging in unremedied contract viola-
tions which were protested by FASH; i.e., failure to for-
ward dues, to make pension contributions, to grant vaca-
tion pay, to discuss certain grievances and to accord
LaRoche a hearing I find that FASH's strike was moti-
vated in part by the Company's unfair labor practice,
and therefore that the strike from its inception has been
an unfair labor practice strike Wittock Supply Co., 171
NLRB 201, 202 (1968), enfd. 419 F.2d 688 (D C Cir
1969).
FASH does not dispute, and I so find, that FASH en-
gaged in the following violations of Section 8(b)(1)(A) of
the Act in connection with its strike and picketing
against the Company On May 4, 1980, during a union
meeting conducted by William Hill in Kenosha, Wiscon-
sin, and on that same date, at the home of an employee
during a telephone conversation, FASH, acting through
Hill and George Sullivan, respectively, threatened em-
ployees with violence should said employees refuse to
join FASH in their strike against Redway. On May 20,
1980, FASH, acting through George Sullivan, in the vi-
cinity of the Employer's premises in Kenosha, Wiscon-
sin, threw rocks at trucks belonging to Redway because
the employees driving those vehicles refused to join
FASH in their strike against Redway. On May 28, 1980,
FASH, acting through George Sullivan, at the Truck
Stop of America in Gary, Indiana, threatened employees
with bodily injury should they refuse to join FASH in
their strike against Redway.
3. The Company's policy toward the FASH strike,
alleged interrogation and threats, and the alleged
discharge of Eldon Shumaker
Shortly after FASH announced its strike, the Compa-
ny issued a written notice to its employees informing
them that "we expect all of you to report to work as
usual ," and that "in the event that you strike us, we have
the option of replacing you with a new hire." Only a
few employees joined the strike. Driver Marlene Graham
testified that on Friday, May 2, she returned to Kenosha
from a run. Graham testified that dispatcher Duane
Werthen, in the presence of Operations Manager Larry
Summers, told her that if she refused to cross the picket
line, "you can consider yourself to have quit " Accord-
ing to Graham, Summers added that when it came time
to rehire her, she would "be rehired on a seniority basis"
and "go to the bottom of the list " Graham testified that
on Thursday, May 8, she asked Werthen if she could
stay in for Mothers' Day (Sunday, May 11). Werthen an-
swered that "there's no mothers working here-just
truck drivers." According to Graham, Werthen added
that if there was a load the next day (May 9) she would
have to take it, and that if she refused it would be con-
sidered as a refusal to cross the picket line and a quit. In
fact, Graham and Alan Broyles were planning to spend
the weekend together, and both were trying to be in Ke-
nosha for the weekend. In fact also, Graham got what
she wanted by exercising her seniority rights. On May 9,
Graham accepted a dispatch which called for a Monday
morning delivery, and which did not necessitate her
leaving Kenosha until after midnight on Sunday. Graham
might have selected a more profitable load, but this one
accommodated her plans
REDWAY CARRIERS
Driver Eldon Shumaker testified that ' on Friday morn-
ing, May 2 , he accepted a dispatch from Summers which
called for loading on May 2 and delivery on May 5. Ac-
cording to Shumaker , Duane Werthen told him that if he
wanted to run he could write a letter to FASH , resign-
ing his membership , and get it in the mail that day. (In
its strike notice, FASH stated that any employee who at-
tempted to work during the strike would be subject to a
fine of up to $100 per day to a maximum of $1000. In a
memo distributed to the employees , Kutzler informed
them, in response to their questions , that they could
avoid a fine by resigning from FASH). Shumaker testi-
fied that about noon on May 2 , he called dispatch and
told Summers that due to the circumstances of FASH's
strike notice, he would have to turn back the load be-
cause he was honoring the strike . According to Shu-
maker , Summers responded , "Well then , you know
you're done." Shumaker testified that at this point he
considered himself fired . Shumaker further testified that
he has honored the strike, that he has not requested any
loads since May 2 , and that he has picketed for FASH.
If Shumaker actively supported the strike , then it is evi-
dett that his contribution was at best minimal. Since
early May, Shumaker has resided in Fort Lauderdale,
Florida . On May 9, Shumaker returned to the Kenosha
terminal to pick up his paycheck . It is undisputed that at
this time the Company requested Shumaker to return his
company keys, and that Shumaker was informed that he
could not come onto company property except for pa-
perwork or to pick up a paycheck . Shumaker filed a
claim for unemployment compensation , which the State
of Wisconsin forwarded to the Florida Bureau of Unem-
ployment Compensation . In response to a written form
inquiry from the Bureau as to the reason for Shumaker's
separation , the Company responded "quit to join illegal
union strike ." The Bureau , without a hearing , ruled that
Shumaker was disqualified from receiving benefits be-
cause his unemployment was due to a labor dispute in
active progress.
Summers and Werthen in their testimony denied tell-
ing Graham that a refusal to cross the picket line would
be regarded as a quit , or that returning strikers would go
to the bottom of the seniority list, or that they told Shu-
maker that he was "done " Werthen also denied discuss-
ing the matter of resigning from FASH . Summers testi-
fied that about May 2 Graham asked him what would
happen if she honored the strike and refused to run, and
that he answered that she would be pulled off her tractor
and would not run until the union matter was settled.
Werthen testified that on May 8 Graham asked for a
"pass," i e , 4 days off, and he refused because another
driver might invoke greater seniority and pass a load to
Graham . At this point Graham got "huffy" and argued
that her children were planning a Mother's Day party,
whereupon he made the remark about truckdrivers and
mothers . As for Shumaker, Summers testified that Shu-
maker accepted a load on Friday morning, but called
about 1 30 p.m . to say that he could not run because he
was going to honor the strike. Summers sarcastically
thanked Shumaker for telling him so late in the day, and
informed Shumaker , as he had informed Graham , that if
Shumaker refused to run during the strike , he would be
1407
pulled from his tractor and would not drive until the
strike was settled . Werthen testified that he did not talk
to Sumaker until May 9 , when Shumaker returned to
pick up his paycheck . However , Werthen testified that
he told FASH steward Burton that striking drivers
would be replaced in their trucks and rehired at the end
of the strike . (Werthen initially testified that he told this
to striking drivers, but subsequently testified that he per-
sonally spoke only to Burton .) Werthen and Summers
further testified , without contradiction , that those drivers
who abandoned the strike and returned to work (specifi-
cally, Burton and Dennis Rusch ) were restored to their
places on the seniority list. (Although Burton was pre-
sented as a General Counsel witness , he did not testify
about these matters ) Summers also testified that on the
instructions of the Company's security agency, employ-
ees were not permitted on company premises except in
connection with their work . In view of FASH 's threats
of violence , it is evident that the Company had at least
reasonable grounds for taking such precautions Kutzler
testified that Shumaker was not fired or laid off, nor to
his knowledge did Shumaker quit . Kutzler further testi-
fied that in responding to the Florida inquiry he used the
word "quit" because the form listed only three choices
which did not include "strike ." The form directed the
employer to indicate whether the employee ( 1) voluntari-
ly quit , (2) was discharged for misconduct , or (3) refused
a job offer , and not to reply if the employee left for lack
of work . Kutzler testified that the first block appeared to
come close to Shumaker 's situation , and that he referred
to the strike as illegal because FASH failed to serve the
requisite notices under Section 8(d)(3) of the Act.
Notwithstanding the contradiction in testimony indi-
cated above , Duane Werthen generally impressed me as
a candid witness , particularly when compared to most of
the other witnesses in this case . I also find significant the
failure of steward Burton to refute the testimony of
Werthen and Summers concerning the Company 's policy
toward strikers, both as stated and in practice . I credit
the Company 's witnesses . I find that Shumaker was nei-
ther fired nor told that he was fired , but that he volun-
tarily chose to honor the FASH strike I further find that
neither Summers nor Werthen threatened Shumaker,
Graham , Burton, or other employees with discharge if
they joined the FASH strike . It is not an unfair labor
practice , per se, for an employer to make an inaccurate,
incomplete , or misleading statement concerning the rein-
statement rights of economic or unfair labor practice
strikers. Care Inn, 202 NLRB 1065 ( 1973), affd . 496 F.2d
862 (6th Cir 1974), Buddies Supermarkets, 192 NLRB
1004 fn . 1, 1011 (1971). Such statements may be unlawful
if, in the context of unlawful threats or comparable re-
marks, they indicate that the employer intends to termi-
nate strikers in furtherance of a discriminatory course of
action . See American Medical Insurance Co., 224 NLRB
1321 fn 2 (1976). Such statements are also unlawful
when the employer indicates that it itends to engage in
reprisals against the strikers , e.g., by expressly informing
them that they will be deprived of their seniority rights.
See Lockwoven Co., 245 NLRB 1362 ( 1979), enfd 622
F.2d 296 (8th Cir . 1980). On the basis of the credited evi-
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dence, neither situation is involved in the present case In
light of the foregoing case authorities, I do not regard
Werthen's inaccurate reference to "rehired" rather than
"reinstated," or Summers' ambiguous references to "until
the union matter was settled" or "until the strike matter
was settled," as constituting an unlawful threat of dis-
charge.69 In the context of Kutzler's written statement
of position to the employees, and the Company's policy
as applied to returning strikers, it is evident that the
Company did not intentionally mislead its employees.
Therefore, I am recommending that the pertinent allega-
tions of the complaint (C(7) and (12)) be dismissed
Eldon Shumaker testified that on Saturday, April 19
(prior to the FASH strike), he was with Donald Neal in
a tavern, and Neal showed him some "NLRB charges "
Shumaker testified that on the following Monday, April
21, Kutzler summoned him and asked what he read on
Saturday Before Shumaker could answer, Kutzler asked
if it was on company stationery Shumaker said it was
not. Kutzler again summoned Shumaker on April 23,
showed him some documents, and asked if any of them
were what he read Shumaker testified that one of the
papers looked like a photostat of a page from the docu-
ment which he read on Saturday Kutzler, in his testimo-
ny, gave a different version of the incident According to
Kutzler, some drivers told him that Shumaker had a
letter from the Board which indicated that the Board
had decided the pending case, and specifically that
FASH was the legal bargaining representative When
Shumaker returned to the terminal, Kutzler summoned
him and asked if he had such a letter Shumaker said that
he did at one time, but no longer had the letter, and that
it found a contract bar. Two or 3 days later Kutzler
again summoned Shumaker and asked him to look
through Kutzler's file and see if he could locate the doc-
ument Shumaker looked through the file and identified
the Regional Director's order of September 17, 1979, dis-
missing UTA's first election petition I credit Kutzler.
No "NLRB charges" were filed around April 19 The
consolidated complaint issued on March 18 Shumaker
failed to identify the document in his testimony If
Kutzler somehow learned that Donald Neal had shown
Shumaker a mysterious document, then it is more likely
that he would have summoned Neal rather than Shu-
maker It is evident that Shumaker was spreading an in-
triguing, albeit false rumor, and that when asked to con-
firm the rumor, Shumaker fell back on the revoked
order Kutzler had an obvious and legitimate interest in
learning whether such an all important document had
issued He understood from prior experience that the
Board sometimes decided such questions without a hear-
ing. It is also evident that both Shumaker and Kutzler
understood that the document in question if it existed,
was a matter of public record. I find that Kutzler's in-
quiry was "a normal response and not unlawful interro-
gation" Therefore, I am recommending that the perti-
nent allegation of the complaint (C(9)) be dismissed.
69 The General Counsel argues that Summers unlawfully told employ-
ees that "the decision would be made" when the strike was over Howev-
er, Summers was referring to what the Company told him, and not what
Summers told the employees
Westmoreland Kitchen, 209 NLRB 153, 158 (1974), see
also El Sol Mexican Foods, 200 NLRB 804 (1972)
4 The discharge of Alan Broyles
Alan Broyles, the son of Safety Director William
Broyles, began working for the Company in October
1978, quit his job on March 24, 1980, was rehired on
April 14 as a probationary employee, and was discharged
at the direction of Richard Kutzler on May 13, dust prior
to the expiration of the 30-day probationary period 70
Broyles began working as a spotter, performed over-the-
road driving during the Ocean Spray strike, and returned
to spotting when the Company began hauling regularly
for American Motors. During the winter of 1979-1980,
Broyles transferred to short-haul driving, a lucrative (and
therefore generally desirable), but demanding form of
work Broyles performed adequately as a spotter How-
ever, it gradually (but reluctantly in view of Kutzler's
longtime association with William Broyles) became ap-
parent to the Company that Broyles lacked the personal
maturity and professional resourcefulness which was ex-
pected of any driver, and particularly of a short-haul
driver. Broyles' problems were compounded by a per-
sonal relationship which had nothing to do with union or
concerted activities, and which was increasingly distract-
ing him in his work. Broyles, although married, was car-
rying on an affair with Marlene Graham It was bad
enough that the son of the Company's safety director
was carrying on an extramarital affair with another
truckdriver, however, as will be discussed, the affair was
not only distracting Broyles in his work, but Broyles ulti-
mately demonstrated that he was willing and determined
to pursue this relationship even at the Company's ex-
pense 71
Broyles testified that beginning in January 1980 com-
pany supervisors including Kutzler began harassing him
by criticizing his work The General Counsel suggests
(Br. 61) that this harassment had something to do with
the fact that on December 1, 1979, Broyles gave an affi-
davit to the Board's Regional Office, covering the over-
time matter previously discussed, and FASH's activities
The argument is fallacious in several respects First,
Broyles in his testimony admitted to numerous work de-
ficiencies, including many which obviously related to
70 In its brief the General Counsel uses the words "quit" and proba-
tionary in quotation marks t fail to understand the reason The Geneial
Counsel has not alleged either that Broyles was constructively discharged
or that he was improperly rehired as a probationary employee insinu-
ations are no substitute for allegations which are properly pleaded and
supported by evidence Nevertheless, I have taken Broyles' employment
history into consideration in determining whether he was discriminatorily
discharged on May 13 For the reasons discussed infra, I find that
Broyles was neither constructively discharged on March 24 nor improp-
erly rehired as a probationary employee
11 Graham testified that they were no longer going together at the
time of Broyles' discharge This assertion was contradicted by the testi-
mony of Broyles and Graham, which indicates that they planned to be
together for the weekend of May 10 and 11, that Broyles had access to
her home, and that he was in fact staying there over the weekend The
General Counsel argues (Br 64) that the Company objected to Broyles'
relationship with Graham because Graham was a leading FASH adher-
ent If so, then it is more probable that the Company would have dis-
charged Graham rather than Broyles Moreover, Kutzler knew of
Broyles' affair with Graham when he rehired Broyles on April 14
REDWAY CARRIERS
lack of attention to his work. Broyles admitted that on
four or five occasions he drove out with the trailer doors
open, that on three occasions during a 3-month period he
ran out of gas, and that he was also late for work on sev-
eral occasions. Broyles and Graham testified that the
Company used spotting trucks with gas gauges that did
not work However, Graham admitted that although she
used such trucks, she never ran out of gas Second, as
Broyles admitted in his testimony, he did not tell any
company official, not even his father, that he had given
an affidavit to the Regional Office During late 1979 and
early 1980 the Regional Office took many affidavits from
company employees The allegation involving Broyles
and overtime pay (presently C(2)) was not made known
outside of the Regional Office until March 18 when the
Region issued its first consolidated complaint shortly
before Broyles quit his job Assuming, arguendo, that
Kutzler promptly assumed that this allegation could only
have been based on information furnished by Broyles,
the obvious question is presented Why then, if Kutzler
were discriminatorily motivated, did he subsequently
rehire Broyles? The General Counsel's lengthy discus-
sion of the Broyles' discharge conspicuously fails to offer
any explanation (see Br. 65). Broyles, like most of the
other drivers, attended FASH meetings as well as the
breakaway meetings in September. Broyles testified that
he went to a sparsely attended FASH meeting on April
12, that he told his father, and that his father told him
that the less involved he was with unions, the better off
he would be. William Broyles made no distinction be-
tween FASH and Teamsters. It is evident that William
Broyles was speaking as a father and not as a supervisor.
In fact, as indicated by the testimony of George Sullivan,
Broyles did not even participate in the meeting, but
simply sat at the bar nearby Two days later Kutzler re-
hired Broyles Thereafter, Broyles did not attend any
FASH meetings, engage in any other FASH activity, or
give any affidavit to the Board until after his discharge
On March 24, Broyles was at the Kenosha terminal
struggling with a trailer which was slowly sinking in
mud. Broyles unsuccessfully tried to use a spotter truck,
and then asked a mechanic to bring another truck The
mechanic did so As Broyles was hooking up the trailer,
Kutzler summoned him to the dispatch office. Kutzler
berated Broyles, telling him to get his head on straight,
and that he should stop what he was doing because it
was spotters' work Broyles went back to his truck,
backed up the trailer, and then called the dispatch office
to inform them that he was then and there quitting his
job Thereafter, William Broyles, acting on his own, in-
terceded with Kutzler on behalf of his son Kutzler
talked to Alan Broyles They agreed that Broyles would
be iehired as a probationary employee and would work
out of Plymouth instead of Kenosha Kutzler felt that a
change of location might help Broyles, and in particular,
might help to extricate him from his "love triangle "
In fact, the move only made matters worse In late
April, Broyles was driving through Chicago on an inter-
state highway when, according to his account, he
swerved to avoid a van, struck a retaining wall, and
damaged five rims on the tractor-trailer Broyles notified
Summers of the accident and submitted a written report
1409
to William Broyles Kutzler testified that in his opinion
Broyles' explanation about the van did not make sense.
On the face of Broyles' explanation, it is evident that
Broyles probably was going too fast or failing to pay
adequate attention to the road On Friday, May 9,
Broyles was in Plymouth with a loaded trailer which
was scheduled for delivery in Melrose Park, a suburb of
Chicago, on Monday, May 12. This was a matter of con-,
cern to Broyles, because he was planning to spend the
weekend with Marlene Graham Broyles testified that he
called dispatch and spoke to Larry Summers. Although
prodded by leading questions from the General Counsel,
Broyles was vague about what was said.72 According to
Broyles, he asked Summers what he should do with the
load, whether he should take it to Kenosha or remain
and call on Saturday, and that Summers responded "why
note" It is not clear from Broyles' testimony what Sum-
mers was allegedly referring to when he said "why note"
In response to a leading question from the General
Counsel, Broyles testified that Summers gave him per-
mission to take the truck to Kenosha In his testimony,
Summers categorically denied that he gave permission to
Broyles to drive to Kenosha, or that he promised
Broyles a "hot load" out of Kenosha. I credit Summers
Broyles, without the permission of dispatch and in viola-
tion of company procedures, proceeded to drive the
loaded truck to Kenosha, thereby taking the truck some
100 miles out of route (i.e , approximately the distance
from Chicago to Kenosha and return) I credit Broyles'
testimony that after his arrival in Kenosha, Summers
gave him a dispatch which could be completed in I day
(Sunday) Summers was evidently trying to cover up for
Broyles However, as indicated, Summers did not prom-
ise a load to Broyles before Broyles drove to Kenosha
Summers had no reason to assign Broyles a load out of
Kenosha because he had Kenosha-based drivers to
handle such loads
On Monday morning, May 12, Broyles drove his
loaded truck from Kenosha to Melrose Park En route a
large stone, apparently thrown from an overpass, dented
the roof of the truck After delivering his load, Broyles
called dispatch, and Duane Werthen assigned him to
pick up another load at "Caspar Metal " Broyles asked
for and was given directions Broyles followed the direc-
tions, but was unable to locate a Casper Metal However,
he went to Ball Metal, where he learned that Ball was
formerly known as Caspar Broyles proceeded to load
the truck At this point, a mature driver would probably
have dropped the matter, or casually mentioned it to
Werthen at the next opportunity Instead, Broyles made
a special call to dispatch and proceeded to take up valua-
ble radio time by berating Werthen for sending him to
Caspar instead of Ball. Understandably, Werthen called
him a "stupid f-ing truckdriver " Later that day, Scott
Kutzler informed Broyles that Richard Kutzler was con-
sidering discharging Broyles because he took a truck out
of route, damaged the rims on a tractor-trailer, and har-
assed the dispatcher The next day Broyles was dis-
72 Broyles' testimony was permeated by leading questions from the
General Counsel
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charged I credit the testimony of Richard Kutzler that
he discharged Broyles, because he failed to straighten
out his problems, none of which related to union or
other protected concerted activities. Kutzler was evi-
dently fed up with Broyles' continuing ineptitude. There-
fore, despite his reluctance to hurt William Broyles' feel-
ings, he decided to terminate Alan Broyles As Broyles
was still a probationary operator, he was not entitled to a
hearing under the contract Therefore, Kutzler did not
violate either the Act or the contract by discharging
Broyles 73
5. The discharge of Donald Neal
Driver Donald Neal began working for the Company
in January 1977 In September 1979 Neal associated him-
self with Donald Sims and Sims' activities Neal signed
the petition which resulted in the creation of UTA, and
he organized the September 29 meeting at which the em-
ployees were polled on what course of action they
should take However, in the ensuing months Neal shift-
ed away from Sims and toward a pro-FASH position
Neal testified as a FASH witness at the representation
hearing on December 12 and 13, in connection with
FASH's contention that Sims was a supervisor, although
his testimony was not consistently supportive of FASH's
position Neal furnished affidavits to the Regional Office
on November 27 and April 11, and he was present in the
hearing room during the first week of this hearing (prior
to his discharge), having been subpoenaed by the Gener-
al Counsel Neal was present at the FASH meeting on
April 12 which was attended by only about four employ-
ees.7`i On April 16 Neal fell and injured his back On
April 22 Neal went on disability leave and he remained
on leave until his discharge on July 8 During most of
the interim period he did not have a home telephone.
Neal testified that he attended two FASH meetings in
May, that he asked an employee to support the strike,
and that he would have joined the strike if he were not
on disability. However, Neal did not participate in the
picketing Kutzler testified that he knew that Neal was
involved in FASH activities, but that he did not know
whether Neal supported the strike I credit Kutzler's tes-
timony to the extent that until July 3 he did not know
Neal's position with regard to the strike (even Steward
Burton abandoned the strike, and Marlene Graham never
joined the strike) However, in light of Neal's testimony
at the representation hearing and his presence at the
present hearing, it is evident that Kutzler knew or had
reason to believe that Neal was a FASH adherent.
On July 3, Neal was scheduled to take a physical ex-
amination for the purpose of determining whether he
was able to return to work However, Neal telephoned
Safety Director Broyles to inform him that he could not
take the exam because of a death in his doctor's family
Broyles informed Neal that the Company's insurer had
terminated his disability payments. According to Neal,
Broyles told him that he should either return to work or
go on strike, and Neal answered that he would try to
return because he needed the money 75 Broyles told
Neal that he should come in on Monday (July 7) and
Broyles would schedule an exam with another physician.
Neal testified that in the same conversation, Broyles
asked him if he had an accident in Indiana , and that Neal
answered that he had, that he had received a letter from
the State of Indiana, and that he had reported the acci-
dent to night dispatcher Harlan Smith. Neal went to the
terminal on Monday, Broyles scheduled an examination,
and Neal took the exam that afternoon at the doctor's
office. Neal subsequently learned that the doctor deter-
mined that he was not qualified to drive because of the
condition of his back and high blood pressure In the
meantime , on July 8, Neal called Broyles and asked if he
had received the doctor's report Broyles answered that
he had not, but that he had a letter for Neal which said
that he was dismissed. Neal came to the terminal to pick
up the "letter," which consisted of a form "employee
warning record," signed by Broyles and dated July 7,
with substantially identical letters from the Office of the
Attorney General of the State of Indiana to Neal and
Redway, dated May 14, 1980, and a bill for damage to a
guardrail in the amount of $83 02 attached to the warn-
ing record The letters requested that the matter be for-
warded to Redway-Neal's insurance carrier-or, in the
absence of insurance, that the claim be paid The warn-
ing record stated that Neal was involved in an accident
on October 26, that Neal failed to report this to the
safety department, that it was company policy to dismiss
any driver who failed to make a written report to the
safety department, that the Company was not notified of
the accident until it received the letter from the State of
Indiana, that no action was previously taken because
Neal was on disability leave, and that Neal was dismissed
for failure to report the accident
At this point it is necessary to go back in time to the
employee meeting on September 29, 1979, at which
Kutzler, having been invited by Neal, spoke to the em-
ployees about his position on the spotting fee and other
contract issues Before taking up these matters, Kutzler
talked about the Company's insurance problems Kutzler
told the employees that the Company's policy had been
canceled, and that the Company needed a new policy to
protect its high risk drivers In fact the Company ob-
tained a new insurer at about this time It is significant
73 After his discharge, Broyles, who was obviously ashamed, went into
seclusion, and was the object of a frantic search by his parents I attach
no significance to Marlene Graham's testimony that William Broyles told
her to "tell the little son-of-a-bitch to keep his goddam mouth shut," i e ,
not to give information to the NLRB If Kutzler was concerned that
Broyles might divulge vital information to the Board , then it is unlikely
that Kutzler would have antagonized both Alan and William Broyles by
discharging Alan
74 George Sullivan testified as to the employees who were present
The transcript indicates that Sullivan referred to "Don Lee (phonetic)
My notes indicate that Sullivan referred to Neal
'S The General Counsel argues in its brief (p 71) that " Sometime be-
tween July 3 and 7, 1980, a strategic decision was made to discharge
Neal so that the on-going strike would not be generated with new fuel "
In light of Neal's testimony as to what he told Broyles , the argument pa-
tently makes no sense Marlene Graham testified that on July 3, Duane
Werthen told her that Neal was coming back to work and he would have
to shit or get off the pot " The remark was consistent with what Broyles
told Neal, namely, that he had a choice of either returning to work or
going on strike As of July 3, the present hearing was in recess and the
Company already knew or had reason to believe that Neal was scheduled
to testify as a witness for the General Counsel
REDWAY CARRIERS
that among the several witnesses who testified about this
meeting, Neal was the one witness who emphasized this
particular aspect It is evident that the matter stood out
in Neal's mind Neal had a prior record of accidents and
traffic tickets while driving for the Company It was not
among the worst driving records, but it was nevertheless
a record, and Neal was obviously concerned about his
security as a driver
On October 26, in Vincennes, Indiana, Neal was ma-
neuvering a sharp turn when the right front tandem of
his trailer caught and bent a guardrail There was no
damage to the truck Neal stopped, found a police offi-
cer, and furnished a brief report of the accident. (The
State of Indiana subsequently referred to this report in its
May 14 letters ) Neal returned to the Kenosha terminal
that evening Neal testified that upon returning he orally
reported the accident to Harlan Smith, that Smith ac-
cepted the report without giving him further instruc-
tions, and that Neal did nothing further about the matter
Neal further testified that on August 11, 1980, Smith told
him that it was possible that Neal told him about the ac-
cident Smith, in his testimony, did not directly state that
Neal failed to report the accident, although he inferred
as much. Smith testified that in early July Neal tele-
phoned him and asked if he remembered the accident
Smith answered that he did not, and that it was not re-
corded in Smith's log book (In fact, there is no such
entry in the logbook.) Smith testified that Neal implied
that he should falsify his records, but that Smith refused.
I credit Smith, and I find that Neal never reported the
accident to the Company First, Neal generally did not
impress me as a credible witness. In addition to contra-
dictions in his testimony, Neal demonstrated a tendency
to make damaging admissions and then attempt to back
away from them On balance, Smith tended to demon-
strate greater credibility than Neal Second, both compa-
ny and General Counsel witnesses indicated that it was
the Company's practice, and the drivers so understood,
that in the case of any accident which involved an actual
or potential property damage or personal injury claim by
or against the Company, the driver would promptly
notify dispatch, that dispatch (if not William Broyles)
would put the driver in contact with Broyles, and that
Broyles would instruct the driver to submit a written
report William Burton and Marlene Graham both con-
firmed that the Company followed this procedure The
Company usually did not require written reports where
there was no damage or injury, or where the accident in-
volved damage to company property within the Compa-
ny's terminal, or possibly in the case of minor damage
which was not traceable to any known source, e.g., Alan
Broyles and the falling stone. However, Neal's accident
fell within the category of reportable accidents, and Neal
demonstrated that he so understood when he stopped his
truck and sought out a police officer. However, the cir-
cumstances indicate that Neal was concerned about his
accident record and Kutzler's expressed concern about
high risk drivers. Neal was willing to take a chance that
nothing would ever come of the matter After all, who
would care about one bent guardrail? However, Neal un-
derestimated the State of Indiana The wheels of govern-
ment do not always move with lightning speed, and the
1411
Office of the Attorney General undoubtedly had more
urgent matters However, to Neal's surprise, the State of
Indiana eventually got around to pursuing its claim
I further find that the Company discharged Neal be-
cause of his failure to report the accident, and not as a
pretext to cover a discharge motivated by Neal' s union
or concerted activities or testimony in Board proceed-
ings As previously discussed, Neal informed Broyles
that he intended to work behind FASH's picket line
Therefore, even if the Company were motivated to dis-
charge employees who honored the strike (an allegation
which has not been proven) the Company had no reason
to discriminatorily discharge Neal at this point More-
over, the evidence indicates that in comparable situa-
tions, even involving minor damage, the Company re-
garded a driver's failure to report an accident as a seri-
ous matter which constituted grounds for discharge
Kutzler testified without contradiction that in 1973 the
Company's operating authority in the State of Ohio was
revoked because of an unreported accident involving
some $200 in damage to a traffic light, and that the Com-
pany was required to incur legal expense in order to
regain that authority Therefore, it is evident that
Kutzler regarded the failure to report an accident involv-
ing state property as a particularly serious matter. On
October 3, 1979, the Company discharged driver Weston
Brigham principally on the ground that he failed to
report an accident involving damage to the equipment of
another firm in the amount of $30 37 The evidence fails
to indicate that the Company ever followed a practice of
not discharging drivers who failed to report an accident.
Indeed, Steward Burton testified that the cases of
Brigham and Neal are the only ones of which he was
aware that involved a driver's failure to report an acci-
dent. The Company took no action against Neal after re-
ceiving the letter from the State of Indiana because until
Neal called on July 3 the Company had no opportunity
to hear his version. If Kutzler were discriminatorily mo-
tivated against Neal, then he could have terminated him
in May. Kutzler already knew of Neal's testimony and
general preference for FASH at that time However,
when Neal called on July 3, Broyles used the opportuni-
ty to raise the matter of the accident, and confirmed that
Neal had failed to report the accident to the safety de-
partment Thereafter, upon consideration of the matter,
the Company decided to discharge Neal I am not per-
suaded that Broyles acted discriminatorily (with respect
to Neal's union or other activities protected under the
Act) by choosing to believe night dispatcher Smith
rather than Neal. Broyles also may have had personal in-
clinations which led him to deal severely with Neal.
Broyles was undoubtedly deeply hurt by the discharge of
his son, and in the circumstances he was probably not in-
clined to be forgiving of violations of company proce-
dures by other drivers These factors do not demonstrate
a discriminatory motivation under Section 8(a)(3) and (4)
of the Act However, as will be discussed, they are sig-
nificant with respect to the 8 (a)(5) violation
I find that the Company did not violate Section 8(a)(3)
or (4) of the Act by discharging Neal. However, I find
that the Company violated Section 8(a)(5) and (1) of the
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act by, discharging Neal without conducting a hearing
with Neal and FASH as required by article 6 of the con-
tract Neal was not a probationary operator, and the
reason for his termination did not fall within any of the
exempted categories The Company was not excused
from noticing the Neal matter for hearing by reason of
Paul Dietsch's previous refusal to meet with company
counsel. Long before Dietsch's refusal, the Company
failed and refused to conduct a hearing with respect to
the termination of Charles LaRoche. In these circum-
stances the Company was obligated to take some action
to indicate that it would defer action if a hearing could
be conducted with Company counsel present. Instead,
the Company proceeded to effectuate Neal's termination
without indicating that it would consent to a hearing
under any circumstances Had there been a prompt, pre-
termination hearing the Company might have been per-
suaded that there were mitigating circumstances, or that
Smith rather than Neal was responsible for failure to
properly record the accident However, that opportunity
was lost See NLRB v. J. Weingarten, supra, 420 U.S. at
262-264. On July 12 Neal filed a grievance over his dis-
charge. Three days later Neal filed the unfair labor prac-
tice charge in Case 30-CA-5931 In any event the griev-
ance procedure was no substitute for a pretermination
hearing.76
6. Concluding findings with respect to the propriety
of a bargaining order without a second election
I find, for essentially the same reasons as I did with
regard to the situation in January 1980, that any bargain-
ing order should be subject to a second election The
only unfair labor practices committed by the Company
during the postelection period consisted of contract vio-
lations which, as previously found, were waived by
FASH as' grounds for objecting to the election Here
again the Company's unfair labor practices must be
weighed against FASH misconduct, this time consisting
of threats and acts of violence by top FASH officials.
Therefore; I am recommending, in sum, that the first
election be set aside, that a second election be conduct-
ed, and the Company be directed to maintain and give
effect to its contract with FASH unless and until, after a
valid election, the Board certifies that another labor or-
ganization is the representative of its employees, or that
no labor organization represents those employees
CONCLUSIONS OF LAW
1. Redway and Cardinal (the Company) together con-
stitute a joint employer with respect to the operation of
their Kenosha and Plymouth locations, and together con-
71 However, I am not persuaded that the Company refused to conduct
a hearing with respect to the termination of Weston Brigham There was
no pretermination hearing in Brigham's case At the time of Brigham's
termination there was also no drivers' steward at Kenosha Nevertheless,
William Broyles informed William Burton of Brigham's termination, and
no witness testified that the Company refused to grant a hearing
Brigham was not presented as a witness Brigham's termination notice
states that "he had made verbal statement of his possible intention to
resign," which indicates that Brigham may have waived further proceed-
ings, including a hearing
stitute an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act
2 FASH and Teamsters are each a labor organization
within the meaning of Section 2(5) of the Act From
September 8 to December 13, 1979, UTA was a labor or-
ganization within the meaning of the Act
3 All drivers, mechanics, spotters, shop helpers and
owner-operators employed by the Company at or out of
its Kenosha, Wisconsin and Plymouth, Indiana terminals,
excluding all office clerical employees, dispatchers, man-
agerial employees, professional employees, guards and
supervisors as defined in the Act, constitute a unit appro-
priate for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act
4. At all times material, FASH has been and is the ex-
clusive collective-bargaining representative of the Com-
pany's employees in the unit described above
5 Since September 1, 1979 the Company and FASH
have been parties to a collective-bargaining contract cov-
ering the employees in the above-described unit, which is
identified in the record of this case as General Counsel's
Exhibits 18(a) through (e)
6. By failing and refusing to forward dues withheld
from employee paychecks to FASH, to make pension
plan contributions, to grant vacation time pay, to process
the grievances of Syd Griner, David Roy and Robert
Simmons, and to conduct hearings before discharging
operators Charles LaRoche and Donald Neal, all in vio-
lation of its contract, and by refusing to confer with
FASH concerning complaints about employee wages and
working conditions, the Company has been and is engag-
ing in unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act
7. By discriminatorily transferring James Beagley from
the short-haul board because he engaged in activities
protected under Section 7 of the Act, thereby discourag-
ing membership in FASH and by discriminatorily laying
off Donald Sims because he engaged in activities protect-
ed under Section 7 of the Act, thereby discouraging
membership in UTA and encouraging membership in
FASH, the Company has been and is violating Section
8(a)(1) and (3) of the Act.
8. The Company has not engaged in any other unfair
labor practices alleged in the complaint
9 By causing and attempting to cause the Company to
lay off Donald Sims because of his protected concerted
activities, FASH has been and is violating Section
8(b)(1)(A) and (2) of the Act.
10. By threatening employees with violence and bodily
injury if they refuse to join FASH's strike against
Redway, and by throwing rocks at vehicles driven by
employees who refuse to join that strike, FASH has been
and is violating Section 8(b)(1)(A) of the Act
11. FASH's Objection 13 in Case 30-RC-3646 has
been sustained by the evidence, the Company thereby
interfered with the Board election held on January 9
through 12, and a new election is appropriate. FASH
Objections 5, 7, 11, 14, and 16 are without merit.
12. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of the
Act
REDWAY CARRIERS 1413
THE REMEDY
Having found that the Company has committed viola-
tions of Section 8(a)(1) (3), and (5) of the Act, and that
FASH has committed violations of Section 8(b)(1)(A)
and (2) of the Act, I shall recommend that each of them
be ordered to cease and desist therefrom, and from en-
gaging in like or related unlawful conduct, and to post
appropriate notices 77 I shall recommend that the Com-
pany be ordered to maintain and give effect to its collec-
tive-bargaining contract with FASH, and to permit
FASH to process grievances and administer the contract
unless and until the Board, following a valid election,
shall certify that another labor organization, or no labor
organization, represents the Company's employees How-
ever, FASH and the Company cannot negotiate a new
or amended collective-bargaining contract unless and
until FASH, following a valid election is certified as the
representative of the employees Shea Chemical Corp,
121 NLRB 1027, 1029 (1958), see also G & H Towing
Co, 168 NLRB 589, 591 (1967)
I shall further recommend that the Company be or-
dered to forward to FASH, FASH dues and initiation
fees withheld from employee pay checks since December
13, 1979, with interest 78 See Presbyterian Hospital,
supra, 241 NLRB at 997 However, the Company is enti-
tled to an offset in the amount of $1055, plus interest, for
moneys which were improperly demanded and received
by FASH in connection with the assessment for negotiat-
ing expenses which was approved by the FASH mem-
bership at the August 4, 1979 meeting The Company de-
ducted the assessment from employee paychecks and
properly turned ovei the money to the Redway Drivers
Fund Paul Dietsch, in his testimony, admitted that the
employee members of the negotiating committee were
reimbursed from that money Nevertheless, FASH failed
to return its payment from the Company I further rec-
ommend that the Company he ordered to grant vacation
pay to its employees as provided in the contract, retroac-
tive to January 1, 1980, with interest, to contribute to the
Fraternal Association of Special Haulers Employees'
Pension Fund for months beginning with January 1980,
as provided in the contract, including a sliding scale of
77 I am not persuaded that the unfair labor practices found demon-
strate that either Respondent has a proclivity to violate the Act, or has
engaged in such egregious or widespread misconduct as to demonstrate a
general disregard for the employees' fundamental statutory rights There-
fore, a broad remedial order is not warranted against either the Company
or FASH See Hicbmott Foods, 242 NLRB 1357 (1979)
78 Interest as provided in the recommended Order herein shall be com-
puted in the manner and amount prescribed in Florida Steel Corp , 231
NLRB 651 (1977)
company and employee payments based on gross truck
revenue, and to reimburse its employees, with interest,
for any contributions which they may have made to the
Fund in lieu of company contributions With respect to
company contributions to the Plan, the question of inter-
est or alternative addition contributions shall be reserved
for the compliance stage of this proceeding. See Ortiz
Funeral Home Corp, supra, 250 NLRB 730 fn 7 (1980)
I am further recommending that the Company be or-
dered to offer James Beagley reassignment to the short-
haul board in accordance with his seniority rights under
the contract, and to make him whole for his losses if any,
caused by his discriminatory transfer I further recom-
mend that the Company and FASH be ordered to jointly
and severally make Donald Sims whole for any loss of
earnings suffered by reason of the discrimination against
him I am also recommending that the Company be or-
dered to offer Charles LaRoche and Donald Neal imme-
diate and full reinstatement to their former jobs or, if
they no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges previously enjoyed, and make them whole for
any loss of earnings that they may have suffered from
the time of their discharge to the date of the Company's
offer of reinstatement But for the Company's failure to
grant them a hearing as required by the contract, it is
possible that neither employee would have been dis-
charged Indeed, Donald Sims testified that during his
stewardship he was sometimes able to persuade the Com-
pany to refrain from discharging an employee, or to
reduce the discharge to lesser discipline, such as a sus-
pension In such or comparable situations it is established
Board policy to resolve the doubt against the wrongdo-
er, and to accordingly grant an appropriate reinstatement
and/or make whole remedy. See Associated Truck Lines;
239 NLRB 917, 921 (1978) and cases cited 79 The back-
pay for said employees shall be computed in accordance
with the formula approved in F W. Woolworth Co _ 90
NLRB 289 (1950), with interest It will also be recom-
mended that the Company be required to preserve and
make available to the Board, or its agents, on request,
payroll and other records to facilitate the computation of
backpay due As the Company unlawfully interfered
with the conduct of the election in January 1980, I shall
recommend that the election be set aside and that a new
election be directed at such time as the Regional Direc-1
for deems appropriate
[Recommended Order omitted from publication.]
79 However, as I indicated at the hearing, I am deferring to the com-
pliance stage of this proceeding, the questions of whether, and if 'so,
when Neal became physically qualified to resume driving