Richard F. Kline

National Labor Relations Board - Board Decisions

Mar 24, 1942

39 N.L.R.B. 1047 (N.L.R.B. 1942)

In the Matter- of RICHARD F. KLINE and LOCAL 355, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND
HELrERs (AFL)
Case No. C-2098.-Decided March 24, 1942
Jurisdiction : petroleum trucking industry.
Settlement : stipulation providing that the findings of fact made by the Trial
Examiner in his Intermediate Report be adopted by the Board as its findings
of fact and providing for compliance with the Act.
Remedial Orders : entered on stipulation.
Mr. Earle K. Shawe and Mr. Marcel Mallet-Prevost, for the Board.
Mr. John A. Bresnahan and Mr. Daniel C. Eberly, of Washington,
D. C., for the respondent. .
Mr. Jacob J. Edelman, of Baltimore, Md., for the Union.
Mr. Marvin C. Wahl, of counsel to the Board. .
DECISION,
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly -filed by Local 355, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers (AFL), herein
called the Union, the National Labor' Relations Board, herein called
the Board, by the Regional Director for the Fifth Region (Balti-
more, Maryland) issued its complaint dated December 4, 1941,
against Richard F.' Kline, Frederick, Maryland, herein called the
respondent, alleging that the respondent had engaged in and was
engaging in unfair, labor practices affecting commerce within the
meaning of Section 8 (1), (3), and (5) and. Section 2 (6) and (7) of
the National Labor Relations Act, 49 Stat. 449, herein called the
Act. Copies of the complaint and notice of hearing, were duly served
upon the respondent and the Union.
Concerning the unfair labor practices, the complaint alleged in
substance that the respondent at its Frederick plant (1) discharged
and refused to reinstate David Hardman because he had assisted the
Union and engaged in concerted activity with other employees; (2y-
39 N L. R. B., No. 200. .
1047
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
since August 12, 1941, has refused to bargain collectively with the
Union, although the Union has, at all times since August 8, 1941,
been the exclusive representative of all the drivers of the respondent,
alleged to constitute an appropriate bargaining unit; (3) since Feb-
ruary 1940 has urged, persuaded, and warned his employees to refrain
from joining, or remaining members of the Union, has threatened
them with discharge if they became or remained members of the
Union, has interrogated them concerning their affiliations with-the
Union, has kept under surveillance the meetings of the Union, has
offered them wage increases to discourage union activity, and has
encouraged his employees to form a company-dominated labor or-
ganization; and (4) by the foregoing acts has interfered with, re-
strained, and coerced his employees in the exercise of the rights
guaranteed in Section 7 of the Act.
On January 5, 1942, the respondent filed an answer to the com-
plaint in which it denied that its operations were in or affected inter-
state commerce and that it had engaged in or was engaging in any
of the unfair labor practices alleged in the complaint.
Pursuant to notice, a hearing was held at Frederick, Maryland,
on January 7, 8, 9, and 12, 1942, before Will Maslow, the Trial
Examiner, duly designated by the Chief Trial Examiner. On Febru-
ary 12, 1942, the Trial Examiner issued his Intermediate Report,
finding that the, respondent had engaged in unfair labor practices
within the meaning of Section 8 (1), (3), and (5) and Section 2
(6) and (7) of the Act. On February 14, 1942, the Board issued
an order transferring the case to the Board. On February 24, 1942,
the respondent, the Union, and the Board entered into a stipulation
in settlement of the case. The stipulation provides as follows :
The duly designated Trial Examiner for the National Labor
Relations Board (hereinafter called the Board) on February 14,
1942, having issued his Intermediate Report in the above-entitled
matter, and it being the desire of the parties to conclude all
proceedings before the Board in this case.
It is hereby stipulated and agreed by and between Richard F.
Kline; Local 355, International Brotherhood of Teamsters,
Chauffeurs, Warehoiisemen and Helpers (AFL) ; and W. M.
Aicher, Regional Director, and Earle K. Shawe, Regional At-
torney, for the National Labor Relations Board, as follows :
1. That the findings of fact"made by the Trial Examiner is his
Intermediate Report may be adopted by the Board as its findings
of fact.
2. That, without further and other procedure before the Board
to which the parties may be entitled under the National Labor
Relations Act, or the Rules and Regulations of the Board, the
RICHARD F. KLINE 1049
Board may, upon the basis of the entire record in the case and
this Stipulation, make findings of fact and enter the following
Order :
(1) That the Respondent, Richard F. Kline, his agents, sue'-,
cessors, and assigns, shall cease and desist from,:
(a) Discouraging membership in Local 355, -International
Brotherhood of Teamsters, Chauffeurs, -Warehousemen and
Helpers, or any, other labor organization of his employees, by-
discriminating in regard to their hire or tenure of employment
or any term or condition of employment;
(b) Refusing to bargain collectively with Local 355, Interna-
tional Brotherhood of Teamsters, Chauffers, Warehousemen and
Helpers (AFL), as the exclusive representative of all its regular
drivers ; -
(c) In any other manner interfering with, restraining, or co-
ercing its employees in the exercise of their right to self-organi-
zation, to form, join, or assist labor organizations, to bargin col-
lectively through representatives of their own choosing, and to
engage in concerted activities for the purposes of collective bar-
gaining of other mutual aid or protection, as guaranteed in
Section 7, of the Act.
(2) That the Respondent, Richard F. Kline, his agents, suc-
cessors, and assigns, shall take the following affirmative faction,
which the Board finds will effectuate the policies of the Act;
(a) Offer to David Hardman immediate and full reinstate-
ment to his former or substantially equivalent employment
without prejudice to his seniority or other rights and privileges;
(b)' Make whole David Hardman for any loss of earnings he
may have suffered by reason of the Respondent's discrimination
against him by payment to him of the sum of $220;
(c) Upon request bargain collectively with Local 355, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers (AFL) as the exclusive representative of all its
regular drivers in respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment; and, if an agree-
ment is reached on any such matters, embody said agreement in
a signed contract with Local 355, International Brotherhood of
Teamsters, Chauffers, Warehousemen and Helpers (AFL), if
requested by that union to do so;
(d) Post immediately in conspicuous places throughout its
offices in Frederick, Maryland, and maintain for a period of at
least sixty (60) consecutive days from the date of posting, no-
tices to its employees stating : (1) that the respondent will not
engage in the conduct from which it has been ordered that it
1050 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
cease and desist in paragraph 1, (a), (b) and (c) of-this Order;
and (2) that it will take the affirmative action set.forth in para-
graph 2, (a), (b), and •(c) of this Order;
(e) Notify the Regional Director for the Fifth Region in
writing within twenty (20) days from the date of this Order
what steps the Respondent has taken to comply therewith:
It is further ordered that the complaint, insofar as it alleges
that 'the Respondent engaged in unfair labor practices within
the meaning of Section 8 (1), of the Act by engaging in sur-
veillance of the meetings and meeting places of his employees
and by encouraging them to form a dominated labor organization
be, and hereby is, dismissed.
3. That the parties hereby consent to the entry by the United
States Circuit Court of Appeals for the, Fourth Circuit, upon
application by the Board of a consent decree enforcing the Order
of the Board, as above set forth, and hereby waive further
notice of the application for such decree.
4. It is 'understood by the parties hereto that this Stipula-
tion does not constitute an admission by the Respondent that
he is engaged in interstate commerce within the meaning of the
Act; however, the Respondent agrees that he will not further
contest in this proceeding,the issue of whether or not he is
engaged in interstate commerce within the meaning of the Act,
and it is expressly understood that the findings of fact made
by the Trial Examiner in his Intermediate Report concerning
the company's business may be adopted by the Board as its
findings of fact.
5. That the execution of this Stipulation and entry of said
decree shall conclude all proceedings before the Board in the
above-entitled case.
6. That the entire agreement is contained within the terms
of this Stipulation and that there is no verbal agreement of
any kind which varies, alters or- adds to this 'Stipulation.
7: That this Stipulation is subject to the approval of the
Board and shall become effective immediately upon the granting
of such approval. - -
On February 27, 1942, the Board issued an order approving the
stipulation and making it a part.of the record in the case.
Upon the above stipulation and the entire record in the case, in-
cluding the- Intermediate Report, the Board makes the following:
RICHARD F. KLINE 1051
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Richard F. Kline is an individual engaged at Frederick, Mary-
land, in the business of hauling petroleum products. During 1941
his fleet of about 10 tractors and trailers transported 15,000,000 gal-
lons of fuel oil, gasoline, kerosene, and other petroleum products
from Baltimore, Maryland, to various points in the State. The
wholesale value of this gasoline, was about $900,000. All the petro,
leum products hauled by the respondent originate outside of the
State of Maryland and are transported by coastal barge and pipe
line to the bulk tanks of the Richfield Oil Corporation located in
Baltimore. Some of these products are refined in Baltimore and
some are refined outside of the State of Maryland. The bulk tanks
of the Richfield Oil Corporation havea 12,000,000 gallon capacity,
which represents ' approximately a 6 months' supply of petroleum
products for the various customers of the Richfield Oil Corporation
obtaining their petroleum products from these tanks. The process
of filling and emptying these tanks is a gradual, although not abso-
lutely regular one. From 3 to 10 days elapse before petroleum prod-
ucts pumped into the bulk tanks are loaded into trucks or trailers
to allow the sediment at the bottom of the tanks to settle. Sher-
wood Brothers, Incorporated, an affiliate of the Richfield , Oil Cor-
poration and several other concerns engage the respondent to haul
the oil from the Richfield Oil Corporation's bulk tanks in Baltimore
to various points in the State of Maryland.
In 1941, the respondent delivered to Sherwood Brothers, Incorpo-
rated, outlet at Silver Springs, Maryland, 1,000,000 gallons of gaso-
line. About 10 percent of this gasoline, or 100,000 gallons, was sold
by Sherwood Brothers, Incorporated, and distributed by it to points
in the District of Columbia and the State of Virginia. Similarly
about 30,000 gallons of gasoline delived in 1941 by the respondent to,
customers in Frederick and Perryville, Maryland, were likewise
transported out of that State by such customers.
Although the respondent himself does not haul any petroleum
products across State lines, his operations are an integral and indis-
pensable step in the interstate flow of oil into and through the State
of Maryland. His operations either end the interstate journey of
this oil or (with respect to the 130,000 gallons of gasoline delivered
across State lines) are an intermediate step in such journey., , Obvi-
1 Cf. Matter of Houston Cartage Company, Inc. and Local Union No. 967, International
Brotherhood of Teamsters , Chauffeurs, Stablemen, and Helpers of America , 2 N. L. R B
1000; Matter of Harry G . Beck, etc., and International Brotherhood of Teamsters, Chauf-
feurs, Stablemen, and Helpers of America, Local Union No. 355,3 N L. R B 110; N. L R B
v. Sunshine Mining Company, 110 F. ( 2d) 780 (C. C. A. 9 ), cert denied, 912 U. S. 678,
312 U. S 713.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ously, a strike by the 'respondent's employees interrupting his busi-
ness would impede if not halt this interstate journey.'-
At the time of -the hearing, the respondent employed about 21
persons.
II. THE ORGANIZATION INVOLVED
Local 355, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers (AFL), is a labor organization, affili-
ated with the American Federation of Labor, admitting employees of
the respondent to membership.
III. THE UNFAIR LABOR PRACTICES
A. Interference , restraint , and coercion
1. The 1940 lay-offs °
On February 15, 1940, five drivers employed by Kline visited the
Union's offices in Baltimore and signed applications for membership
in the Union . These five were George Baker, Francis Fraley, David
Hardman, Paul Simpson , 'and Richard Simpson. Two other drivers,
Russell Tregoning and Paul Higdon, signed similar applications that
same night in Frederick . Three days later, according to Hardman,
Kline stated : "Well, I understand your boys have signed up for the
Union." Hardman denied it and then after some conversation Kline
said, according to Hardman :
. .. if you sign up with the Union, you give me a week 's notice
. . . when I get ready to lay you off, I will give you a week's
notice.
On February 22, according to Hardman , Kline accused him of
"still talking this Union up " and then told him to take off a couple
of days to "think the thing over ." During this week Paul Simpson
and Fraley were discharged and Richard Simpson was likewise laid
off for 3 days . This occurred during •Kline 's busy season.
R. Simpson testified that at the time he was notified of the lay-off
Kline charged him with signing a union application card.
Robert Snurr , another driver employed by Kline, testified that
during this same week Kline told him that Hardman , P. Simpson,
R. Simpson, and Fraley had met with the Union "too long" and that
"lie was going to get it over with once and for all." Snurr testified
that Kline also asked whether he had anything to do with the Union,
to which he replied that he had not.
J Pueblo Gas and Fuel Co. V N. L. R B, 118 F. (2d) 304 (C. C A. 10).
RICHARD F. KLINE 1053
On Monday, February 26, when Hardman returned to work, Kline
told him to get to work and forget about the Union and that the
other drivers had clone likewise. The union activities of the men
,thereupon stopped for more , than a year.
Kline admitted on the witness stand that he knew there "was union
talk" among the men in February 1940 and that'.Hardman was an
active union member, but, denied the remarks attributed to him by
Hardman, Snurr, and R. Simpson. Kline testified that he discharged
Paul Simpson because he had found him drunk on the day of the
discharge; discharged Fraley because he had worked only half of the
time he was supposed to work in the four weeks immediately prior
to his discharge; laid off Richard Simpson because of heated remarks
made by Simpson to Kline when the latter changed Simpson's route,
and finally that he had no recollection of the reason for Hardman's
absence from work during part of that week.3
The Trial Examiner found that Kline's demeanor on the witness
stand stamped him as an evasive witness lacking in candor. The
Trial Examiner did not credit, nor do we credit, his explanation of
the lay-off of Simpson, or the absence from work of Hardman or his
denials of the remarks attributed to him by Hardman, Snurr, and R.
Simpson. While the discharges of Paul Simpson and Fraley coming
as they did promptly after they had signed union- applications and
coincident with the lay-offs of R. Simpson and Hardman are sus-
picious,' the Trial Examiner niade no findings as to -these discharges,
nor do we. We find, as did the Trial Examiner, that R. Simpson and
Hardman were laid off for the purpose of discouraging membership
in the Union. Since the complaint does not recite that these lay-offs
violate the Act, no such finding is made. The lay-offs give meaning,
however, to the respondent's subsequent acts and attitudes."
2. The 1941 wage increases
In the summer of 1941 the respondent's drivers asked Kline to meet
with them to discuss a wage increase and a week's vacation with pay.
Kline posted a notice on the bulletin board granting the vacation
requested and advising his employees' that he would discuss the wage
increase on his return from a trip to Florida. Kline returned from
Florida, but failed either to grant the wage increase or to call the
meeting. Whereupon on Sunday, July 27, five drivers, Hardman,
Snurr, Higdon, Wilbur Ford, and Francis Wagner, visited the Union's
'Earlier i nthe hearing Kline denied that nardman had been laid off in February 1940
and contended lie had left voluntarily.
4 Paul Simpson and Fraley were not, in the employ of Kline at the time of they healing
and did not testify at the hearing
For that purpose the respondent ' s prior conduct is clearly material , Internatsonal
Association of Machinists v. N. L R B , 311 U. S. 72.
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offices in Baltimore. It'-was agreed there that the drivers would hold
a meeting among themselves to discuss the question of union affiliation.
A meeting was then arranged for the next night at Hardman's home.
The next day, July 28, Kline asked Hardman why the men had
,visited the union office. Being told of the scheduled meeting in Hard-
man's, home, Kline suggested, that the drivers meet instead in his
office .6 Hardman was delegated to notify the drivers of the change in
the meeting place and a notice was posted on the bulletin board over
Kline's name advising the employees of the meeting. At the meeting
that night Kline told the drivers that no union was going to "organ-
ize" his business; that he had lost his health getting his business started
and-would sell it before he let someone else run it. Whereupon Hard-
man-told Kline that if the employees received a salary-increase to $35
a week they would forget about the Union. Kline asked for some more
time to consider the matter. The drivers were then receiving from
$25 to $30 a week.
. The next day, July 29, Snurr and Hardman signed applications for
membership in the Union, which they had received from the Union
on July 27. Shortly thereafter Ford, R. Simpson, and Higdon like-
wise signed such applications.
The following week Kline announced an immediate $2.50 wage in-
crease and promised another weekly increase of $2.50 if his hauling
charges were raised in September. The second weekly increase of
$2.50 was granted 3 weeks later. - The Trial Examiner found, and we
find, as alleged in the complaint, that these increases were granted to
discourage membership in the Union.
3. The lay-off of Snurr
On August 7, 1941, Snurr invited the drivers to dine at a restaurant
at Frederick where they could meet with representatives of the Union.
Two pints of whiskey purchased by Snurr were passed around at
the dinner that night with the result that Wagner became drunk and
was arrested for disorderly conduct. After his arrest he signed an
application for membership in the Union.
The next day, August 8, Kline inquired of Hardman who were
present at the restaurant the night before and then said :
Snurr is certainly worked his last day for me . . . I am go-
ing to fire him,... He is the one that brought those Union
men to Frederick, and looks like he got these boys drunk and
got these boys locked up.'
6 Kline denied having this conversation with Hardman and contended he was invited to
the meeting by Hardman after it was in progress . The Trial Examiner did not credit
Kline's version of the incident, nor do we.
' Kline 's denial of this conversation was not credited by the Trial Examiner, nor do
we credit, it.
RICHARD F. KLINE 1055
' That same day, -August 8, Snurr, was laid off. He testified,, and
we find, that Kline in notifying' him of the lay-off had. described
him as the "instigator."
On August 10, Hardman was given a week's vacation under cir-
culnstances hereinafter described.
On August 12, Samuel Patti and Joseph Jantz, business, repre-
sentatives of the' Union,. accompanied by Snurr, called, upon: Kline
and among other matters discussed Snurr's discharge. Kline, ac-
cused Snurr of drinking around the respondent's office and of being
implicated in a shortage of gasoline. Snurr denied both the dunken-
ness and the theft. The Union thereafter filed' a• charge with the
Board alleging that Kline had illegally discharged Snurr. I
On August 18, Hardman received a telegram from the Baltimore
Regional Office of the Board inviting him to attend a conference the
next day 'at which Shurr's discharge would be discussed. , Hardman
showed the wire `to Kline who suggested that he ignore it since it
was not a -subpoena'.". Kline himself attended the -conference.
,On August'19, Kline called a meeting of the drivers at his home
in Frederick and told them of his conference with the regional repre-
sentatives of the Board. Kline claimed to be a college classmate of
one of the Board representatives and told the men there was nothing
to the conference.
The next night there was another meeting in Kline's home, at
which cigars and soft drinks were' served. Kline • told the 'drivers
that the- Board's representatives had advised him that he need not
reinstate Sniirr, but suggested nevertheless that the employees vote
on the question of whether Snurr should be reinstated. . The vote was
six to one in favor'of the reinstatement.
• The next day, August 21, Kline told Snurr of the meeting and the
vote and then 'told, him to,come back to work. Kline also stated
that he-did not care whether Snurr belonged to the Union as long
as he did not discuss the Union with the rest of his drivers.
At the hearing Kline contended he. had discharged' Snurr because
of 'excessive' drinking after warnings' and because he had found
empty cans on his truck "on numerous occasions" which might be
used in the theft of gasoline. Kline admitted knowledge of Snurr'ss
union activities, but denied ever endeavoring to -persuade Snurr to
withdraw from, the Union: The Trial Examiner did not credit
Kline's explanation of the discharge and we find, as did the ,Trial
Examiner, that Snurr as discharged because of his union activity.
Here again, however, no finding,is made that by,reason of such dis-
charge','the respondent violated the Act, since the complaint contains
$ Kline denied this, but the Trial Examiner found that Hardman was the more credible
witness, and we so find '
448105-42-vol. 39----68
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no reference to Snurr's discharge. The respondent's dealings with
Snurr, however, are material in evaluating his total course of con-
duct towards-the Union. I
4. The conference of December 28, 1941
On Sunday; December 28, 1941, after, the complaint in this 'pro-
ceeding had been issued, Kline called his drivers to-his home and in-
troduced his attorneys, John A. Bresnahan and David C. Eberly
After the attorneys, explained to each of the employees that they
were free to answer questions or not as they saw fit the employees
were questioned individually in. the presence of Kline.
Simpson was asked whether the respondent had ever urged, per-
suaded, or warned his employees to refrain from becoming or remain-
ing,members of the Union, had threatened them with discharge if
they became or remained members, and had interrogated employees
concerning., their. union affiliation. He was also asked whether he
recognized the Union as his bargaining agent. Higdon and ' Harry.
Main, another driver, were asked similar questions. Snurr who was
likewise summoned to Kline's home refused to answer any questions.
The ostensible purpose of this questioning was, to give Kline's
attorneys a chance to confer with the drivers so that they could pre-
pare a defense for the imminent Board, hearing. Snurr testified,
however, without contradiction, and we find, as did the Trial Exam-
iner,that Kline had told him the purpose of the meeting was to
"feel the guys out, and see how did the drivers feel about the Union."
,If the respondent were solely interested in preparing its defense,
there was no need to inquire of the drivers whether they recognized
the Union as their bargaining agent. Kline as hereinafter appears,
already had inspected the application cards of -the drivers. Nor
did the respondent's attorneys need to inquire of his employees
whether Kline had ever interrogated them about the Union, or urged
them to withdraw from the Union; Kline could have given that in-
formation to his counsel. The effect upon the employees of such
tactics, in any event, precluded the acquisition of reliable information.
Simpson, explaining,why he-gave false answers to Kline's attorneys
at this examination before trial testified :
In other words, the way='I felt about it we was taken in Mr.
Kline's house by Mr. Kline. If you were ordered out and you
are working for a man you have got to do as he tells you or
else you just automatically disappear. What would you think if
a man would call you- in and have the lawyers ask questions, it
is just the same way as having a gun in your back.
The cross-examination of the witness then continued :
Q. (By Mr. BRESNATTAN.) Well were you threatened?
RICHARD F. KLINE 1057
A. You didn't have to threaten me, I had sense enough, to
know what would happen if I said anything like that.- '
We find, as did the Trial Examiner, that this questioning of the
respondent's employees was not necessary as a legitimate prepara-
tion of the respondent's defense, was iiitended to, and did interfere
with, restrain, and coerce its employees in' the exercise of their rights,'.
under the Act.9 -
5. The alleged surveillance and alleged encouragement to form a
"company union"
The complaint alleged that the respondent had kept under sur;,
veillance the meetings and meeting places of the members of the'
Union employed by° him. Although Kline revealed an intimate
knowledge of the events at union meetings, no direct evidence of
surveillance was introduced at the hearing. Inasmuch as this in-
formation could have been furnished to him voluntarily and without
his solicitation by employees present at such meetings, we find that
the respondent did not. engage in surveillance of the meetings or
meeting places of the Union.
The complaint, also alleged that the respondent'had encouraged
employees to form a "company union." The testimony is in con-
flict. Although Snurr testified that at the meeting of July 21, Kline
suggested that the employees form a union among themselves, Ford,
Wagner, and Kline, also present at the same meeting, testified that
the suggestion came not from Kline but from Guy Hahn, a mechanic
employed by the respondent. The Trial Examiner credited the latter
testimony and found, as do we, that the respondent did not encour-
age his employees to form a company-dominated labor organization.:
6. Conclusions
We find, as did the Trial Examiner, that the respondent by his
conversations with Hardman, R. Simpson, and Snurr in February
1940, by his remarks to his drivers at the meeting of July 28, 1941,
by his remarks to Hardman and Snurr on August 8, 1941, by the
two wage increases granted in August 1941, by the conversation be-
tween Kline and Snurr on August 21, 1941, and by the questioning
of his employees on December 28, 1941, urged, persuaded, and warned
his employees to refrain from becoming or remaining members of
the Union, threatened them with discharges and other reprisals if
Cf. ,flatter of F. W Woolworth Co. et at. and United Wholesale eG Warehouse Employees
of New York, Local 65, 25 N L . R B 1362 , modified and affirmed , 121 F (2d) 658 (C. C. A. 2).
Matter of Norman H Stone et al, and Internatsonal Printing Pressmen and Assistants'
Union, 33 N . L :R B. 1014.
1058 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
they became or remained, members thereof, interrogated them con-
cerning their affiliations with the Union, offered wage increases to
them in order to discourage their activity on behalf of the union, and
thereby arid by the other acts above-described has interfered with,
restrained, and coerced his employees in the exercise of the rights
guaranteed in Section 7 of the Act.
B. The Discharge of Hardman
Hardman was -employtd by the respondent as a truck driver in
the summer of `1939. In February 1940, as has been found, he was
laid off for 3 days because of his union activity. He worked con-
tinuously thereafter until May 1940 when he was laid off during the
slack season for a few weeks. Thereafter Kline obtained a job for
him as a driver for O'Boyle, a 'trucker. in Washingtoii, D. C. In
November, 1940 Kline rehired Hardman, promising him a regular
job. During the summer months of 1941, when the respondent laid
off 8 'to 10 employees because of lack of work, Hardman was retained.
On Sunday, August 10, 2 days after Snurr's discharge, Kline told
Hardman to take the week off with pay, explaining that he wished
to straighten out a few things around the plant.'
On August 12, Hardman visited Kline at the latter's offices, while
the union representatives were there. After Jantz and Patti left,
Kline pointed to'their automobiles and stated :
. . there is where your money goes, them fellows have big
offices down there in Baltimore, that is what you pay dues for
like the other guys, and so that them guys can sit around . .
before I am going into the Union . . . I will take and lease my
trucks out or get rid of them . .. I am not going to have
someone else run my business . ... I have worked hard for this
business . .. and I am not going to take and leave somebody
else come in . . .
Kline then put his arm around him and said:
I know you belong to the union . . . but we will forget that
.. . if you just don't talk to the other fellows about'the union
. . . you can keep on in the union . . . or later on drop out .. .
but just don't say anything to the other men.10
Hardman promised that he would not talk, to the other men and
was then told to come to work the next morning, Wednesday, August
13.
Mine's explanation at the hearing for asking Hardman to take a
week' off with, pay was that 800 gallons of gasoline had been reported
10Ebne denied this conversation but the Trial Examiner did not credit his denial, nor
do ve
RICHARD' F. KLINE 1059
missing from a Silver Springs tank of one of his customers and that
the only two , persons who hauled gasoline on the 2 -nights' after the,
shortages developed were . Snurr and Hardman. He therefore gave
Hardman a week ' off with pay to determine if the shortage s would
continue in Hardman's -absence. '
Hardman testified , however, that he had no night hauls at. all, to
Silver Springs during 1941 . The respondent who clearly could have
proved such night hauls if they existed offered no such proof although
invited to do so.
On Thursday , August 28 , Kline's secretary gave Hardman a letter
which read :
Due to the sharp falling off of gasoline supplies it will be
necessary for me to lay off some of our force-and as you are one
of the last men to come with me you are being laid off.
I am giving you this written notice so there can be no mis-
understanding as to my reason for the lay off which as I just
stated is lack of work . Your check was for' the full week.
However, you can take the rest of the week off.
This was the first time Kline had ever given an employee a written
explanation of a lay-off . Kline explained at the hearing that he had
written the note to Hardman because he knew Hardman was a mem-
ber of the Union and he wished to avoid being misquoted.
Although Kline's written explanation for Hardman 's lay-off was
lack of work , he subsequently hired eight new employees and rehired
two former employees without recalling Hardman, despite the fact
that it was his practice in the busy season to recall employees laid
off in the summer . At the time Hardman was laid off , Ford and
'Stanley Crone were retained , although junior in service to Hardman.
Although Kline had written out his reason for laying off Hardman
to avoid, as he put it, another reason being given to it later, at the
hearing Kline contended that he had had another reason for laying
off Hardman. The second reason was that Hardman had the week
before his discharge informed Kline that he wanted a long haul job
and would quit as soon as he got it . Hardman , according to Kline,
solicited his help in obtaining such a job in North Carolina. Kline
testified that he immediately told Hardman that he would have to
look for someone else to replace him and would "probably" lay him
off. Hardman , however, testified that he merely expressed a wish
to obtain such a job and denied that Kline had indicated he would be
replaced.
We credit Hardman's version of the incident , but in any event
find, as did the Trial Examiner , that Hardman would not have been ,
laid off for expressing his wish to, engage in long-haul work had
he not engaged in union activity . The answer of the respondent,
verified by Kline, recites that Hardman was discharged because there
1060 DECISIONS OF .NATIONAL LABOR RELATIONS BOARD
was no work for him and is silent about Hardman's desire to obtain
a long-haul job. The Trial ,Examiner found that this additional
reason of Kline's was merely an afterthought, which was not in his
mind as a cause for discharge when the dismissal letter of August
28, 1941, was written, and we likewise so find.
Kline testified that Hardman had been a good and efficient driver
and admitted that he had knowledge of Hardman's union activities.
He further admitted that the Regional officers of the Board had
asked him to reinstate Hardman. The respondent offered no reason
for his failure to comply with the request, although his verified
answer recites that • Hardman was not reinstated because he never
applied for reinstatement.
The Trial Examiner found, and we find, that Kline gave Hard-
man a week off with pay in ,order to• insulate his other employees
from contact with Hardman. When this device failed to dampen
Hardman's ardor for the organization of the drivers, Kline finally
discharged him, adopting as a pretext the claim that there was no
work for him. We find that thereby the respondent discriminated
in regard to Hardman's hire and tenure of employment, discouraged
membership in the Union, and interfered with, restrained, and co-
erced his employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act.
C. The refusal to bargain collectively
1. The appropriate unit
The' complaint alleges that all the drivers employed by the re-
spondent constitute an appropriate bargaining unit. Only the
drivers of the respondent are eligible to membership in the Union.
The` respondent in the course of his negotiations with the Union
never raised the contention that this unit was not appropriate, and
in his verified answer neither admits nor denies the appropriateness
of the unit. The only non-drivers employed by the respondent are
a mechanic and his helper, a stenographer, and eight drivers hired
after November 8, 1941, who the parties stipulated were extra em-
ployees.1' We find, as did the Trial Examiner, that all the regular
drivers of the respondent have at all times material herein con=
stituted and that they now constitute a unit appropriate for the pur-
poses of collective bargaining, with respect to rates of pay, wages,
hours of employment, or other conditions of employment, and that
said unit insures to employees of the respondent the full benefit of
their right to self-organization and to collective bargaining and
otherwise effectuates the policies of the Act.
11 The respondent in his brief states that these employees have been "distinguished"
as' temporary employees because they are employed only during the busy season. They
are not deemed part of the appropriate unit for this reason and because, in addition, they
were hired after the refusal to bargain hereinafter found . See footnote 13, infra.
RICHARD F. KLINE 1061
2. Representation by the Union of a majority in the appropriate unit
When the Union first. requested the_ respondent to bargain col-
lectively with it, the following drivers were employed by the. re-
spondent: . Crone, Ford, Hardman, Higdon, Maine, R. Simpson,
and Wagner. Snurr, although not wofking from August 12 to
August 21, 1941, was, from the latter date, a regular. driver of the
respondent. Hardman, although discharged on August 28, 1941,
and not since reinstated, must,be deemed a regular driver, since it
has been found his discharge was, an unfair labor practice.
'Tregoning was released on April 26, 1941, and rehired on September
13, 1941. From the latter date he likewise was a regular driver.
Edward Godsey was hired August 11, as an extra man to be laid off
in the slack season. He worked a week and thereafter was not on the,
respondent's pay roll until November 15, 1941. He was not therefore
an employee. of the respondent during the course of his negotiations
with the Union .12. The appropriate unit herein consisted, of -regular
drivers.
As of August 18, 1941, therefore, there were seven regular drivers
in the appropriate unit, of which four had designated the Union
as their collective bargaining representative. Upon Snurr's rein-
statement on August 21, the unit was increased to eight and the
number designating the Union to five. By October 20, 1941, the
date on which the respondent refused to bargain with the Union, as
hereinafter found, there were nine regular drivers in the unit, by the
addition of Tregoning, who was rehired on September 13, 1941.
Of this latter unit of nine drivers on October 20, six 13 had designated
the Union as their collective bargaining representative by signing .
applications for membership 14 on dates set alongside each name :
Hardman July 29, 1941
Higdon July 29, 1941
Main August 18, 1941
R. Simpson - August 8, 1941
Snurr July 29, 1941
Tregoning 15 February 15, 1940
12 In Bussman Mfg. Co. v N. L.R. B., 111 F. (2d) 783 (C. C. A. 8), the court disre-
garded employees hired after the failure to bargain in upholding a union 's representation
of a majority before such failure
12 In addition, Wagner signed a designation on August 7, 1941, at a time when, according
to his own testimony, he was drunk and had no recollection of what he was doing. Ford
signed a designation on July 29, 1941. He testified that after hearing the trouble someone
had with the Union, he requested in writing on September 29, 1941, that his application
be cancelled. Neither of these two designations is included in calculating the Union's
representation.
14 The application also authorized the Union to act as a collective bargaining agent.
15 Tregoning was not employed by Mine during July and August 1941, when the other
drivers made out new applications for membership in the Union. His 1940 designation is
therefore' presumed to continue
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Higdon, Main, and, R. Simpson, however, in October 1941, wrote
to the Union requesting withdrawal of their applications for mem-
bership under the following- circumstances :
On October 11, 1941, Kline visited,Main''at the latter's home and
requested him to write a letter to the Union withdrawing his appli-
cation for membership. Main wrote the letter desired by Kline and,
sent it to•the Union."6
On October 28, R. Simpson wrote a letter in Kline's office and at
Kline's request, withdrawing from the Union. Kline also suggested
the addition of the postscript: "I am doing this of my own accord." 17
$efore mailing the letter, however, Simpson notified the Union that
the had been forced to write the letter and asked that no attention be
paid to it. ' On two prior occasions, according to R. Simpson,- Kline
had requested the writing of such a letter of withdrawal, but each
time R. Simpson had refused.
Higdon testified that Kline had asked Simpson and himself to
withdraw from the Union, but both had 'refused. Thereafter, on
October 29, 1941, when Higdon learned that Simpson had written the
Union requesting the cancellation 'of his membership, he did like-
wise. Higdon testified that he would not have requested the with-
drawal of his application had Simpson not done so. Kline testified
that he saw Higdon's letter before it was signed.' Since Higdon's
letter would not have beep written had 'not Simpson written his, and
since Kline solicited Simpson's letter, Kline must be deemed respon-
sible for Higdon's also. It is obvious therefore that Kline, initiated
each of the withdrawal letters and that' they do not represent volun-
tary acts on the part of the signers. Accordingly, notwithstanding
'these withdrawal letters, the Union represented six- of the nine drivers
in the appropriate unit.
We find that by the questioning of Wagner, Ford, and Higdon on
August 12, 1941,'and by the solicitation of Simpson, Main, and Hig-
don to withdraw from the Union, the respondent interfered with,
restrained, and coerced his -employees in the 'exercise of the rights
guaranteed in Section 7 of the Act.
The Trial Examiner found, and we find, that on and at all times
after August 18, 1941, the Union was the duly designated representa-
tive of a, majority of employees in the, aforesaid appropriate unit,
and that, by virtue of Section 9 (a) of the Act, the Union was at all
times material herein and is the exclusive 'representative of all the
employees in such unit for the purpose of collective bargaining in
1° Kline at first did not recall this incident , but later denied it . The Trial - Examiner
found , and we find , Main's testimony more credible.
11 Kline testified that Simpson had, at his own initiative , written the letter, although
he admitted talking with Simpson about it prior to it being written . We credit Simpson's
version, as did the Trial Examiner
i
RICHARD F. KLINE 1063
respect to rates of pay, wages, hours of employment, or other condi-,
tions of employment.18
3. The refusal to bargain
On August 12, 1941, Jantz and Patti-called on Kline in Frederick,
told him the Union represented a majority of his drivers, and left
with him a copy of a proposed collective bargaining agreement for
his consideration. Kline asked to see the union application cards,
but Patti replied that they would be shown him at a proper time and
place. Kline then left his visitors in his office, returned shortly with
Wagner and in the presence of Jantz and Patti,' asked Wagner
whether he belonged to the Union. Wagner replied that he did not.
Kline then brought Ford in and put the same question to'him. Ford
replied that he had been a member but had changed his mind. The
third employee to whom the question was put was' Higdon, who
replied that he would do what the rest of the men did. The con-
ference broke up, after a discussion about Snurr's discharge, with
Jantz's remark that the Union would get in touch with Kline shortly.
In the next month, Jantz's telephone operator telephoned Kline
from Baltimore three or four times, but never succeeded in reaching
him.19 On September 15, 1941, the Union filed charges with the
Board, accusing Kline of failing to bargain and of the unlawful dis-
charge of Hardman.
On September 22, Kline wrote the Union that on the recommenda-
tion of the Board's regional representative he was "going to nego-
tiate with you." On September 27 he again wrote to the Union
submitting, what he described as a "counterproposal" to the Union's
proposed contract, but adding :
' You understand of course that, union recognition 20 of my part
will have to be based upon your presenting me with definite proof
that you represent a majority of my employees.
A few days later 21 Kline met with Jantz and Patti in Baltimore and
the Union's demands were discussed.22
At this conference, Kline again asked to see the application'cards
signed by the employees. Jantz replied that they were then, in the
Baltimore office of the Board and that the Union would get them.
Kline, however, suggested waiting until the conference was over.
' The respondent in his brief admitted that the Union represented Main, Higdon, R.
Simpson, and Snurr, nor did he question its representation of Hardman prior to the,
latter's discharge.
Kline denied receiving any of these messages. We do not find, nor did the Trial
Examiner find, that Kline directly or indirectly received any of these messages.
20 "Recondition" 'in the original. '
21 The record does not disclose the exact date
21 Jantz testified that he believed Kline at that conference made a sincere effort to reach
an agreement.
1064 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jantz then gave Kline a typewritten list of Kline's employees who had
signed applications. for membership in the Union. At the end of the
conference Patti offered to accompany Kline to the Board's Balti-
more offices where he could inspect the Union's application cards, but
Kline suggested another occasion, claiming that it was too late in the
afternoon. Arrangements were then made for continuing the dis-
cussions at a later date.
On October 7, Kline wrote to the Union complaining that it was
uncompromising in its demands. The letter closed with this sentence :
"For us to meet again would be of no avail unless you decide to
consider the welfare of my men and myself as well as those of the
Union." Nothing was said about the Union's right to act as bar-
gaining representative of the drivers.
Jantz and Patti thereupon arranged a conference for October 13.
On that morning, however, they telephoned Kline that they Shad been
detained and would be a half hour late for their appointment. Kline
replied that he had other appointments and could not see them any
more that day.
That same day Kline wrote to the Union as follows :
Since you could not keep your appointment with me at 11: 00
o'clock this morning I cannot arrange my schedule to see you any
more this week.
If you wish you can write me and let me know what days you
will be in your office next week, and in no case will I discuss the
contract with you until you present me with proof that my men
are a member of your union.
Upon the receipt of this letter the Union complained to the Balti-
more office of the Board of the respondent's insincerity.
On October 20, a conference was held at the offices of the Board
in Baltimore which was attended by Aicher, the Board's Regional
Director, the Union's representatives, by Kline and his attorney,
Nathan Hamburger, and by all of the respondent's drivers.
At the beginning of the conference Aicher asked the parties why
they could not resume their conferences. The Union's representatives
stated -that they were willing but Kline replied that he could not
deal with the Union because he had learned since October 13 that his
employees no longer wanted, the Union to represent them. Ham-
burger suggested that an election be held but Aicher replied that. an
election was not necessary or proper.
The Union then submitted its application blanks to Kline who
looked at each one of the signatures, while the employees present were
given an opportunity to deny the genuineness of their signatures. The
only one who did so was Wagner.
RICHARD F. KLINE 1065
The conference ended with Aicher's recommendation made to Kline
in the presence of the Union's representatives that he bargain with
the Union. According to Aicher, Kline replied that he would prefer,
a trial of the issue.
On October 25, Kline wrote to Aicher that he could not deal with the
Union " ... because the Union does not represent the majority of
the men nor did you give me a proper opportunity to'either call-wit-
nesses in my behalf or present documentary evidence which I possess
that would have proven these facts.,"
4. Conclusions
Negotiations between the respondent and the Union broke down'
after October 13, 1941, and on October 20, 1941, the respondent re-
fused to negotiate further with the Union. The respondent in his
letter of October 13 insisted that he would not deal with the Union
until presented with proof that the Union represented a majority of his
employees. Yet at the very moment that it was insisting on such, proof
the respondent was engaged in an effort to undermine the Union's
majority by soliciting his employees to withdrawn from the Union.
When on October 20, 1941, the Union showed its original application
cards signed by the respondent's employees to the respondent in the
presence of the applicants themselves, the respondent still professed
himself dissatisfied with that type of proof. Yet, even after the con-
ference of October 20, the respondent continued his efforts to induce
the more active union members to cancel their affiliations.
The respondent's real attitude, not his public protestations, is
revealed by the remark made by him to Snurr on December 24 23 that
he would grow a beard down to his knees before he would bargain
with the Union. We find, as did the Trial Examiner, that the re-
spondent's claim that the Union had not been designated as the repre-
sentative of his drivers was not made in good faith but solely as a
pretext to avoid bargaining with the Union. The respondent's course
of conduct was dominated not by any honest or reasonable doubt of
the Union's majority, but by a fixed intention not 'to deal with the
Union at all.
We find that the respondent on October 20, 1941, and at all times
thereafter has refused to bargain collectively with the Union as the
exclusive representative of the employees in an appropriate unit,
and-has thereby interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
29 Kline admitted a conversation with Snurr on December 24 about the Union but denied
this remark . The Trial Examiner found, and we find, that Snurr's testimony is deserving
of more credence.
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the several States and tend
to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
ORDER
Upon the basis of the above stipulation, findings of fact, and-the
entire record in the case, and pursuant to Section 10 (c) of the
National Labor Relations Act, the National Labor Relations Board
hereby orders that the respondent, Richard F. Kline, Frederick,
Maryland, his agents, successors, and assigns, shall:
1. Cease and desist' from :
(a) Discouraging membership in Local 355, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and Helpers
(AFL), or any other labor organization of his employees, by dis-
criminating in regard to their hire or tenure of employment or any
term or condition of employment;
(b) Refusing to bargain collectively with Local 355, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
(AFL), as the exclusive representative of all its regular drivers;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purposes of collective bargaining. or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a)' Offer to David Hardman immediate and full reinstatement to
his former or substantially equivalent employment without prejudice
to his seniority or other rights and privileges;
(b) Make whole David Hardman for any loss of earnings he may
have suffered by reason of the respondent's discrimination against
him by payment to him of the sum of $220;
(c) Upon request bargain collectively with Local 355, Interna-
tional Brotherhood • of Teamsters, Chauffeurs, Warehousemen and
Helpers (AFL), as the exclusive representative of all its regular
drivers in respect to rates of pay, wages, hours of employment, and
other conditions of employment; and, if an agreement is reached on
any such matters, embody said agreement in 'a signed contract with
RICHARD F. KLINE 1067
Local 355 , International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers ( AFL), if requested by that union to do so;_
(d) Post immediately in conspicuous places throughout its offices
in Frederick , Maryland , and maintain ' for a period of at least sixty
(60) consecutive days from the date of posting, notices to its em-
ployees stating : (1) that the respondent will not engage in the con-
duct from which it has been ordered that it cease and desist in para-
graph 1 (a), (b), and ( c) of this Order; and (2) that it will take
the 'affirmative action set forth in paragraph 2 (a), (b), and (c) of
this Order;
(e) Notify the Regional Director for the Fifth Region in writing
within twenty ( 20) days from the date of this Order what steps the
respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint , insofar as it alleges that
the respondent engaged in unfair ,labor practices within the meaning
of Section 8 (1) of the Act by engaging in surveillance of the meet-
ings and meeting places of his employees and by encouraging them
to form a dominated labor organization be, and hereby is, dismissed.