RSR Corp.

National Labor Relations Board - Board Decisions

Mar 30, 1976

223 N.L.R.B. 470 (N.L.R.B. 1976)

470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Quemetco, Inc., a subsidiary of RSR Corporation and
Local 135, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca and Jerald L. Moore. Cases 25-CA-6599 and
25-CA-6780
March 30, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
On September 16, 1975, Administrative Law Judge
Thomas E. Bracken issued the attached Decision in
this proceeding. Thereafter, the Respondent and the
General Counsel filed exceptions and supporting
briefs, and the Respondent filed an answering brief
to the General Counsel's exceptions. The General
Counsel also filed a brief in support of the Adminis-
trative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge to the
extent consistent herewith.
1. We agree with the Administrative Law Judge
for the reasons set forth in his Decision that the sus-
pension of Mack Dixon for I week from October 13
to 20, 1974,' during the height of the union cam-
paign, was a clear warning to the other employees as
to what could happen to them if they continued to
support the Union, and that by this conduct the Re-
spondent violated Section 8(a)(3) and (1) of the Act.
2. We find merit in the General Counsel's excep-
tions to the Administrative Law Judge's finding that
the Respondent did not violate Section 8(a)(1) by
Shipping Manager Day's inquiry of Dixon, over a
"friendly" beer in a tavern, what Dixon thought of
the Union, and what the drivers thought of Day. Day
is the supervisor whose duties brought him into clos-
est contact with the drivers. The inquiry plainly in-
vaded Dixon's Section 7 rights to support or not sup-
port the Union, to keep his views to himself if he
chose, and to refrain from indicating his fellow em-
ployees' views. The Administrative Law Judge con-
cluded that this invasion was excused by (1) the
friendship theretofore existing between Day and Dix-
on, (2) the beer, and (3) the tavern ambience. None
' All dates are 1974 unless otherwise noted.
of these prevented Day from threatening Dixon, in
the same conversation, with possible loss of employ-
ment if the Union were successful in organizing the
employees-a threat which we also find violates Sec-
tion 8(a)(1). Nor did friendship and beer insulate
Dixon from further threats to his employment from
Day, nor from the eventual fulfillment of those
threats by Dixon's discriminatory layoff, all of which
we also find violate the Act. In the light of these facts
establishing Day's and Respondent's initial, sharp,
and unrelenting hostility to the Union, it is plain that
friendship and beer provided no effective barrier to
the interference and coercion inherent in Day's inter-
rogation of Dixon.
A more serious error lies in the premise that a
"friendly" interrogation does not interfere with an
employee's Section 7 rights. An employee is entitled
to keep from his employer his views concerning
unions, so that the employee may exercise a full and
free choice on the point, uninfluenced by the
employer's knowledge or suspicion about those views
and the possible reaction toward the employee that
his views may stimulate in the employer. That the
interrogation may be suave, courteous, and low-
keyed instead of boisterous, rude, and profane does
not alter the case. It is the effort to ascertain the
individual employee's sympathies by the employer,
who wields economic power over that individual,
which necessarily interferes with or inhibits the ex-
pression by the individual of the free choice guaran-
teed him by the Act.
Accordingly, we find this interrogation of Dixon
by Day to be a violation of Section 8(a)(1).
3. We also find merit in the General Counsel's ex-
ceptions to the Administrative Law Judge's finding
that the General Counsel has not proven by a pre-
ponderance of the evidence that the Respondent dis-
criminated against Henry S. (Bob) Jones, Jr. Jones
was first hired as a truckdriver on April 18, and quit
his employment on August 30 to take another job.
On September 23, Tom Day, the Respondent's ship-
ping and receiving manager, was notified by a regu-
lar driver, Jerald Moore, that he was unable to take
his scheduled trip to Kansas. Day was unable to lo-
cate a replacement, so he called Jones 2 at or about 1
a.m. on September 24, informed him that he had a
"hot load that had to go," and asked Jones, who was
admittedly a good driver and an experienced one, if
he would accompany Day on a trip to Kansas. Jones
tried to bargain for a full-time job but Day told him
that he did not have any openings at that time but
that he would try to work something out. Jones ac-
cepted the assignment. Delivery was made to the cus-
2 Day knew that Jones, having become dissatisfied with his other job. was
looking for work.
223 NLRB No. 53
QUEMETCO, INC. 471
tomer in Kansas by both Day and Jones. Upon re-
turning from Kansas, Jones asked Day if he would
get a truck so that he could reinstall his Citizens
Band radio equipment in it, to which Day replied
that he would probably have a truck, and for Jones
to call him the next morning.
On September 26, Day asked Jones to take another
trip, this time to Dallas, because the regular driver
was ill. Jones did so and returned to the plant on
September 29 with material which. he delivered to
Muncie, Indiana, on September 30. Between Jones'
trips to Kansas and to Da Day introduced Jones
to driver Frentz as "a part-time. employee." Also dur-
ing that same week Day told Dale Stairs, another
driver, that he was going to use Jones in "a part-time
position, in case one of [the other drivers] was sick
... [or] wanted a day off, [the Respondent] was
going to use [Jones] in that utility position" Moore
testified that Day told him that he (Day) had put
Jones back to work.
On or about September 26, Jones filled out an au-
thorization card for the Union? Several days after
the Dallas trip, driver Jerald Moore asked Day if
Jones was working. Day replied that he found out
that Jones and Mack Dixon were two of the main
instigators in getting the union cards signed, called
them obscene names, and stated that as far as Day
was concerned Jones "no longer worked there."
Jones called the Respondent's dispatch office several
times following the Dallas trip but the Respondent
did not assign him to drive. Jones was told that "it
was slow," but was never told that he was. dis-
charged.
The Administrative Law Judge found, and we
agree, that Jones was a part-time employee of the
Respondent while operating the tractor-trailer to and
from Kansas and Dallas. Contrary to the Adminis-
trative Law Judge, however, we find that the reason
assigned by the Respondent for the discharge of
Jones was a pretext. Admittedly Jones was a good
and experienced driver, but the uncontradicted evi-
dence proves that the Respondent knew and resented
that Jones, along with Mack Dixon, another discri-
minatee , was one of the main instigators of the
Union. His discharge came at or about the same time
that the Union filed a petition for an election on Oc-
tober 2. In these circumstances we do not credit the
Respondent's contention that Jones' services were
simply not needed to take care of emergency trips
7 The Administrative Law Judge apparently relied in part on the fact that
Jones showed that he had "grave doubts about . [his] status of employment
on September 25" because he "didn 't know whether he was still employed
or not" and therefore did not sign a union card for Dixon on that day.
However , any doubts he had about his status on the 25th were removed on
the 26th when he was called by Day to take another trip for the Respondent,
and consequently he executed an authorization card.
following the Respondent's discovery of Jones' union
activity. Accordingly, in view of the fact that the Re-
spondent believed that Jones was one of the main
instigators in getting the union cards signed, and the
clear hostility to that activity demonstrated by the
credited evidence, we find that the Respondent dis-
charged Jones for his union activities. We conclude,
therefore, on the basis of all the evidence in the rec-
ord, that the discharge of Jones was in violation of
Section 8(a)(3) and (1) of the Act.
4. We also agree with the Administrative Law
Judge that, in the 3 months following the beginning
of the Union's campaign in September, the Respon-
dent did not discriminatorily reduce the drivers' wag-
es. Contrary to the Administrative Law Judge, how-
ever, we also find no merit in the allegation that the
Respondent discriminatorily reduced the mileage of
the "prounion" drivers Moore, Dixon, Stairs, Gib-
son, and Frentz.
The Administrative Law Judge based his finding
on a summary of mileage data which purportedly es-
tablished, inter alia, that the number of miles driven
by the prounion drivers during the fourth quarter of
1974 was less than the average of all nine drivers,
while on the other hand the antiunion drivers were
assigned more mileage than the average. For several
reasons, that analysis is too simplistic.
Our analysis of these figures shows that six of the
nine drivers on the payroll4 were over the average
and the remaining three drivers were under that aver-
age. Frentz, who was hired in September, was 149
miles under the average. Dixon, a driver who we
have found was discriminatorily suspended for 1
week, and whom our Remedy and Order make
whole, was 1,409 miles under the average. His mile-
age may well have been up to the average but for the
1-week suspension. The only remaining driver whose
mileage was under the average is Jerald Moore, who
had 3,412 miles under the average. However,
Moore's own testimony reveals. that at his own re-
quest, for personal reasons, the Respondent did not
give him long trips for a period which extended into
the first week of November. Thus, for at least 5
weeks of that quarter, Moore was not assigned the
Dallas run, an 1,800-mile trip. Thus, leaving aside the
mileage records of Moore and Dixon for the reasons
stated, the only other so-called prounion driver who
drove less than the average mileage was Frentz, who
drove only 149 miles less than the average. -Consider-
ing the large numbers involved, that deficiency is in-
significant. Furthermore, the other three "prounion"
drivers all drove considerably more mileage than the
average-Stairs by 1,652, Gibson by 2,502, and Bell
by 2,226.
4 Lawson, Fleming, Demaree , Stairs, Gibson, and Bell.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In any event, the record shows that mileage varia-
tions 3 were a common occurrence for any week,
month, or even quarter. Moreover, the Respondent
used a 6-month period to attain its goal of mileage
equalization .6 Thus, it is apparent that the Adminis-
trative Law Judge failed to consider that the Respon-
dent, in order to equalize mileage for all drivers, used
a 6-month period or two quarters, rather than the
3-month period relied on by the Administrative Law
Judge.
For all of the foregoing reasons, we find that the
General Counsel has failed to establish by a prepon-
derance of the evidence that the Respondent discrim-
inatorily reduced the mileage of the drivers. Accord-
ingly, we shall dismiss this portion of the complaint.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusions of Law 4
and 5, and delete Conclusion of Law 6:
"4. By discriminatorily laying off Mack Dixon on
October 13, and discharging Henry S. (Bob) Jones,
Jr., on September 30, thereby discouraging employ-
ees in their exercise of Section 7 rights, the Respon-
dent has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(3) and
(1) of the Act.
"5. The General Counsel has failed to prove by a
preponderance of the evidence that the Respondent
unlawfully promised economic benefits including the
promise to make loans of money to its employees, or'
that the Respondent unlawfully reduced the amount
of work by reducing the average mileage of its driv-
ers as alleged in the complaint, and the allegations of
the complaint in those respects shall be dismissed."
ORDER
The Respondent, Quemetco, Inc., a subsidiary of
RSR Corporation, Indianapolis, Indiana, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively threatening employees with eco-
nomic reprisals or discharge for their union activities.
(b) Coercively criticizing or interrogating employ-
ees with respect to their union support or union ac-
tivity.
(c) Discouraging membership in or activities on
behalf of Local 135, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, or any other labor organization of its
employees, by laying off, suspending, discharging, or
in any like or related manner discriminating in re-
gard to hire or tenure of employment or any term or
condition of employment of its employees.
(d) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Make whole Mack Dixon for the loss of wages
and benefits suffered by him by reason of his dis-
criminatory layoff in accordance with the formula set
forth in "The Remedy."
(b) Offer to reinstate Henry S. (Bob) Jones, Jr., to
his former position or, if that position is no longer
available, to a substantially equivalent one, together
with whatever seniority rights or privileges he may
have had, and make him whole for any and all losses
of wages and benefits resulting from his discrimina-
tory discharge, in accordance with the formula set
forth in "The Remedy."
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its facility in Indianapolis, Indiana,
copies of the attached notice marked "Appendix."'
Copies of said notice, on forms provided by the Re-
gional Director for Region 25, after being duly
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifi-
cally found.
S The weekly mileage figures in the record show extreme variations for the
first week of September 1974, before the advent of the Union, from 1,015
miles by Dixon to 2,577 miles by Stairs . Another typical example shows that
Dixon drove 2,310 miles while Stairs recorded only 970 miles during the
third week of November. Similar extremes for other drivers are also evident.
6The testimony of witnesses for the General Counsel establishes that one
of the duties of the Respondent's dispatcher is to equalize the mileage over
a 6-month period.
7 In the event that 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 National Labor Relations Board " shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
QUEMETCO , INC. 473
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a hearing , that we violated Federal law by lay-
ing off and discharging employees for supporting a
union, and by otherwise interfering with our employ-
ees' right to join and support a union , we have been
ordered to post this notice:
WE WILL make whole Mack Dixon together
with 6-percent interest for all losses of pay and
benefits suffered by him by reason of our dis-
criminatory layoff of him.
WE WILL offer to Henry S . (Bob) Jones, Jr.,
reinstatement to his former position or, if that
position no longer exists , to a substantially
equivalent one, and WE WILL make him whole for
any and all losses of wages and benefits suffered
by him by reason of our discriminatorily dis-
charging him.
WE WILL NOT lay off or discharge any of you
for supporting Local 135 , International Brother-
hood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America , or any other union.
WE WILL NOT coercively threaten you with
economic reprisals or discharge or question you
about your union activities.
WE WILL NOT in any other manner interfere
with , restrain, or coerce you in the exercise of
your rights under Section 7 of the National La-
bor Relations Act.
QUEMETCO , INC., A SUBSIDIARY OF RSR COR-
PORATION
DECISION
STATEMENT OF THE CASE
THOMAS E. BRACKEN , Administrative Law Judge: This
case was heard at Indianapolis, Indiana, on April 16, 17,
18, and 19, 1975.1 A charge was filed by the Union on
October 15, 1974, and a complaint was issued on Novem-
ber 29. On December 27, a charge was filed by Jerald L.
Moore, and on January 23, 1975, the two cases were con-
solidated and an additional complaint was issued on Janu-
ary 23, 1975. The primary issues are whether the Company,
the Respondent, (a) unlawfully interrogated and threat-
ened employees during the Union's organizing drive; (b)
discriminatorily discharged one active union supporter,
and laid off another; (c) unlawfully promised economic
1 All dates are in 1974 unless otherwise stated.
benefits to employees in the nature of loans ; (d) discrimi-
nated against five employees by reducing the amount of
work available to such employees ; all in violation of Sec-
tion 8(a)(1) and (3) of the National Labor Relations Act.
Upon the entire record ,2 including my observation of the
demeanor of the witnesses , and after due consideration of
the briefs filed by the General Counsel and the Company,
I make the following:
FINDINGS OF FACT
1. JURISDICTION
The Respondent , a Delaware corporation , is engaged in
the manufacture , sale, and distribution of lead products in
plants located in five states of the United States including
the subject facility at Indianapolis , Indiana . During the
past 12 months it shipped goods valued in excess of
$50,000 from its Indianapolis facility directly to customers
located outside the State, and in the same period received
goods valued in excess of $50 ,000 at its Indianapolis facili-
ty directly from customers located outside the State. The
Respondent admits , and I find , that it is an employer en-
gaged in commerce within the meaning of Section 2 (2), (6),
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. Business of Respondent
The Respondent , Quemetco , Inc., operates a smelting
and refining plant in Indianapolis , Indiana, and is a sub-
sidiary of the RSR Corporation , with the RSR principal
office and plant located in Dallas, Texas . Albert P. Lospi-
nozo is the executive vice president of RSR , and the key
home office official in dealing with the Respondent. In
addition to the Indianapolis and Dallas plants , RSR oper-
ates plants in Middletown , New York, Los Angeles, Cali-
fornia, and Seattle, Washington. RSR and its subsidiary
plants are engaged in the business of recycling scrap lead,
and producing therefrom lead ingots , both in pure form
and in various alloys, as well as producing oxide powders.
The Indianapolis plant was acquired by RSR in Novem-
ber 1972 , and has been in operation since the summer of
1973. The Indianapolis plant can produce six lead alloys,
out of the total of 26 alloys that the parent corporation
offers its customers. The Indianapolis plant also manufac-
tures three oxide powders . The main plant in Dallas has
been operating for 40 years and can produce all 26 lead
alloys, but not the oxide powders produced at the India-
napolis, New York, and California plants.
The basic material for the manufacture of RSR's fin-
2 Errors in the transcript have been noted and corrected.
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ished products is derived from used whole batteries. These
batteries are crushed so that the lead may be extracted, and
such lead is then recycled for sale to customers who manu-
facture electrical batteries, paints, and glass. The Indianap-
olis plant, unlike the Dallas and New York plants, is not
equipped to crush whole batteries so as to extract the lead.
The Indianapolis plant does process battery scrap which
consists of plates that had been separated from the whole
battery.
The Dallas headquarters of RSR handles all customer
contacts and sales , as well as the purchasing of used batter-
ies or battery scrap. The Dallas sales department issues a
weekly shipping schedule to each of the other plants, in-
cluding Indianapolis , listing the customers , the items to be
shipped, and the deadline for delivery. It then becomes the
function of each plant to make the specified deliveries us-
ing the trucks and drivers based at that plant.
2. Trucking operation
Each of the RSR divisions located in the five above-
named cities has its own trucking operation , whose prima-
ry responsibility is the delivery of purchased manufactured
products to its customers , and secondarily to pick up used
batteries for delivery to its various plants for the recycling
process. The delivering of the customer's order is called by
the Company the direct shipment , as it is the main reason
for the overall vehicle operation. The hauling of used bat-
teries or battery scrap is termed by the Company the back-
haul, as it is secondary to the operation of the business.
This terminology results in Respondent 's drivers being dis-
patched out of Indianapolis with a load of used batteries
for delivery to Dallas being referred to by Respondent as
backhaul, whereas the load of manufactured lead alloy
picked up in Dallas by the same driver for delivery to a
customer is referred to by the Respondent as the direct
shipment. The Respondent's drivers refer to the initial trip
as the direct shipment , and the return trip as the backhaul,
regardless of what is hauled in their trailers.
Since July 1974, the Indianapolis plant has been author-
ized by the Dallas headquarters to employ nine drivers,
and to have fleet equipment consisting of 10 leased Hertz
tractors, 6 leased vans , and 8 flatbed trailers owned by
RSR. The Indianapolis plant uses its own truck fleet not
only for the delivery of finished products to customers and
pick up of used batteries , but also for interplant shipments
to the Dallas and New York facilities. For shipments to
RSR's Seattle or Los Angeles plants , it uses commercial
carriers . Rail services are occasionally specified by a cus-
tomer, but the Company prefers to ship by its own trucks.
Respondent's truckdrivers perform their duties under the
direction of the shipping and receiving manager or, in his
absence , under the direction of the dispatcher who assumes
the duties of the department head. The shipping and re-
ceiving manager reports to the plant manager . Shipping
instructions are released weekly by Dallas to the Indianap-
olis plant . When this weekly shipping release is received
from Dallas , the shipping and receiving manager, on Fri-
day, makes out a work schedule for the following week,
assigning each driver to a designated run. Drivers are paid
on a mileage basis, receiving 13-1/2 cents a mile for pulling
loaded trailers, and 11-1/2 cents a mile for pulling empty
trailers. The shipping and receiving manager keeps exten-
sive records of the mileage driven by each driver. It is the
Respondent's avowed policy to equalize the mileage as-
signed to each driver over monthly periods, so that the
income of the drivers would be equal.
B. The Union Organization Campaign
On or about September 24, Mack Dixon and Jerald
Moore, both road drivers for the Respondent, went to the
union office and secured about seven or eight union au-
thorization cards from Union Agent Schmidt.3 In the next
several days, Dixon visited the homes of various drivers
and left cards with fellow drivers Jude Frentz, Dale Stairs,
Henry S. (Bob) Jones, Jr., and Bill Bell . Frentz, Jones, and
Stairs signed and returned their cards to Dixon. Moore
completed his authorization card on September 29 and on
September 30 Moore, together with Dixon, returned to the
union office, turning the completed authorization cards
over to Schmidt. On October 2, the Union filed a represen-
tation petition on behalf of the Respondent's drivers. After
an active campaign to defeat the Union was waged by the
Respondent, an election was conducted for the drivers on
December 13. The final tally of ballots was six votes cast
for the Petitioner Union, four votes against, and on April 3,
1975, the Union was certified as the collective-bargaining
representative of the driver employees of the Respondent
at the Indianapolis plant.
C. Respondent's Supervisors
Roy Gelpke has been the plant manager of the Respon-
dent since July 15, and was its first full-time manager. Los-
pinozo had served as acting plant manager for a period of
8 months after its acquisition by RSR and, upon the hiring
of Gelpke, returned to his duties as executive vice president
of the parent corporation in Dallas. Susan Smith has been
the personnel and safety manager since August 4, 1973.
Tom Day was employed as the shipping and receiving
manager on January 15, and remained as such until Octo-
ber 21. It was stipulated that Gelpke, Smith, and Day were
supervisors within the meaning of the Act.
The complaint alleged that Richard Veers was a statuto-
ry supervisor, and General Counsel elicited many pages of
testimony thereon and devoted a substantial portion of his
brief in support thereof. The Respondent in his brief would
dispose of the issue by a footnote, and, although denying
that Veers was a supervisor, stated "since Veers was not
implicated by evidence in any of the allegedly unlawful
conduct of Respondent, the issue need not be resolved." It
is true that Veers was not named in the complaint as parti-
cipating in any of the alleged independent violations of
Section 8(a)(1), and no testimony was presented that he
participated in any such violations, nor was any effort
made by General Counsel to link him with the alleged dis-
7 At this time the Respondent 's drivers were the only RSR production
employees throughout its five plants not represented by a labor union. All
other plant and driver employees were organized , including the plant em-
ployees at Indianapolis.
QUEMETCO, INC.
charge of Jones or the layoff of Mack Dixon. However, the
General Counsel in section 6 of the consolidated complaint
does charge the Respondent with a Section 8(a)(3) viola-
tion in that:
(b) The Respondent has reduced and is reducing
the amount of work made available to the following
employees: Dale Stairs, Mack Dixon, Jerry Gibson,
Jude Frentz and Jerald L. Moore.
It is therefore necessary to determine the status of Veers,
as the record is clear that he played a substantial role in the
matter of the amount of work made available to the five
above-named drivers.
Veers went to work for the Respondent on January 23,
and described his job title as shipping and receiving clerk.
From the time of his hire until Day's cessation of employ-
ment on October 21, Veers' duties were admittedly clerical,
chiefly performing paperwork for Day , and he was referred
to by the drivers as "assistant dispatcher ." After Day's ter-
mination , Veers was referred to as the "dispatcher" by the
drivers and plant manager , and he assumed many duties of
the shipping and receiving manager. For a portion of the
months of December and January 1975, the Respondent
employed Cedric Denny as the shipping and receiving
manager , and Veers reverted to the job relationship he had
had with Day. Clearly, when Day and Denny were serving
as the shipping and receiving manager , Veers was a clerical
employee, and was not a supervisor within the meaning of
Section 2( 11) of the Act. We then examine his duties for
that period after October 21 when he served as the dis-
patcher . Veers described his functions as follows : "Since
the departure of Mr . Day, my duties have increased drasti-
cally. I am responsible for all the paper work connected
with shipping and receiving and I have gotten into dis-
patcher and driver pay rolls."
As dispatcher, Veers was in close contact with the RSR
sales department in Dallas about the shipping schedule and
deliveries to customers . On Friday afternoons he made up
a schedule of runs listing the drivers , and the runs to be
made for the following week , so as to make ontime delivery
of the product to the customers . He determined the
amount of expense money to be advanced to the driver and
secured all necessary permits . When the driver was out on
the road, Veers had the authority, on a call from a driver,
to issue purchase orders , to have necessary repairs made to
company tractor-trailers . Drivers were in repeated tele-
phone contact with the dispatcher, as they were required to
call and report to him upon the making of their delivery;
when they encountered route problems or difficulties
which prevented them from making deliveries at the sched-
uled time ; and, at least once each day that the driver was
on the road. When the driver returns, Veers reviews the
driver's records and checks for correct mileage, road ex-
penses , and general accuracy. It. was Veers' responsibility
to see that drivers were dispatched so as to equalize the
mileage for the runs assigned to the drivers , as the drivers
were paid on the mileage between cities as listed in the Oil
Haulers Guide . Veers was a salaried employee, but was
required to punch a clock; and he received overtime pay.
Day and the other supervisory employees did not punch a
clock , received no overtime pay, and received greater
475
fringe benefits than Veers.
Unlike Day, the evidence produced clearly shows that
Veers had no authority to hire, fire, transfer, suspend, lay-
off, discharge, or discipline employees, or effectively to rec-,
ommend such action. The question that remains is whether
the facts in this case are such , nevertheless, as to meet the
"responsbility to direct" criterion for supervisor status as
set forth in Section 2(11) of the Act. I find that they do.
Veers, as the dispatcher, was solely responsible for assign-
ing the nine truckdrivers to the particular runs they would
operate tractor-trailers over each week. He could direct a
driver to take a 1,900-mile trip to Dallas, or take a 20-mile
trip across the city. While those drivers were out on the
road, he was their primary source of direction and authori-
ty. He could change their destination and daily work as-
signment at- any time that in his judgment he thought it
necessary to do so. He used independent judgment all day
long in making decisions which affected the wages, hours,
and working conditions of these road drivers. To hold that
Veers was not a supervisor would mean that nine over-the-
road truckdrivers were driving thousands of miles per
week, from points between Indianapolis and Dallas, and
Indianapolis and New York without a supervisor directing
them what to do. I am persuaded that Veers was a statuto-
ry supervisor when he was the dispatcher after Day's de-
parture.
However, assuming that Veers was not a supervisor, he
was an express agent of the Respondent acting on its be-
half. The principal scope of his employment related to-the
assignment of the drivers to their daily and weekly runs.
He regularly. gave to Plant Manager Gelpke for review a
sheet showing the month-to-date mileage and the year-to-
date mileage of all the drivers. Veers worked under the
control and direction of Gelpke, and his acts came to the
attention of Gelpke. Veers was clearly an agent of the Re-
spondent.
D. Alleged Discharge of Jones
Henry S. Jones, Jr., referred to generally as Bob Jones
throughout the hearing, first applied for a job with the Re-
spondent in December 1973, in response to a newspaper
advertisement. He filled out an application for employ-
ment at the plant, but was advised the position had been
filled. In April, the Respondent ran another advertisement
and Jones again went to the Company seeking employ-
ment, testifying this date to. be a day or two before his
hiring date of August 18. Jones testified that he was only
interviewed by Day, who inquired as to his driving record,
type of equipment he had operated, accidents, and traffic
tickets.
Day asked Jones what his feelings were toward a non-
union shop, and Jones advised that it-"didn't make any
difference to me , as long as I made a decent living." Jones
stated that a day or two later, Day received his driving
record from the Indiana State Police, and Day then sent
him out on a student trip to Logansport, Indiana, with
Dixon as observer. When Jones returned, Dixon discussed
Jones' driving ability with Day, and Jones stated that he
was then hired on April 18. Jones stated only then he was
interviewed by Personnel Manager Smith, who just took
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his picture , explained company insurance benefits , and had
him fill out tax withholding forms . Smith testified that she
interviewed Jones on April 10, before Jones talked to Day,
and after her interview, took him to Day and "He was
given a driver's test also had a road test." After completion
of these tests, Smith stated that she ran a check on his
license , found there were no points against him, and Jones
was hired on April 18 . 1 credit Smith 's version of the hiring
of Jones, as she testified while holding his employment ap-
plication in her hand , and referred to it for dates . It is also
more probable that a time period of 8 days elapsed in se-
curing the driving record of Jones from the Indiana State
Police, rather than a time period of I or 2 days. Smith
described a very detailed , structured personnel department
hiring procedure for new employees , that was equally ap-
plicable to exemployees who would apply for rehire.
Day assigned Jones to truck number 39 , and Jones in-
stalled his own CB radio equipment and bedding in his
assigned truck . In late June or early July, Day was hospi-
talized, and was temporarily replaced by Winston Coffey,
the traffic manager from Dallas . Coffey assigned a run to
Jones that was not to Jones' liking and he refused the as-
signment, telling Coffey to stick the job. Jones called Day
in the hospital telling him of the situation , and Day asked
him to "hang loose," until he could handle the problem.
Day candidly described Jones as a good driver, one of his
better drivers, better than a fair driver, and proceeded to
intercede with company officials and saved Jones' job.
Jones was off work 2 to 3 weeks during this period. On
August 19, Jones was given a written warning for making a
late delivery to a customer in Muncie, Indiana . On August
30 Jones formally quit the job , removing his equipment
and telling Day that "I didn't like the way they were cut-
ting my miles and my hours on my lay-overs." On cross-
examination Jones reluctantly admitted that another rea-
son for his quitting was that he wanted less overnight trav-
el.
On the termination notice filled in by Day, Day wrote as
the reason for termination "Another job less travel." Day
also marked "No" to the question "Would you recommend
rehire?" When asked by the Administrative Law Judge
what was his reason for not recommending the rehiring of
Jones, Day responded "For the verbal abuse primarily that
he gave to Elton Jones , Dick Veers and Winston Coffey,
plus the fact that he had stated to me that on one time in
particular that he thought we were screwing him out of his
wages and everything and he was very dissatisfied with our
mileage system and the way we paid the hourly rates, and
the overtime."
Jones proceeded to work as a city truckdriver for a local
company for several days, but found that work not to his
liking and quit, stating "it wasn't the job that I thought it
would be."
Sometime around September 21, Jones went out to the
Respondent 's plant to see if Dixon or Moore was in. While
in the dispatch office he talked to Day and Veers, and in
response to a question from Day asking him what he was
doing, Jones responded "I told him nothing." Jones testi-
fied that he made no application for work, and no offer of
reemployment was made by Day. Day testified that Jones
asked if there was any chance of getting back on, to which
Day replied "I said at the present time, no because we have
a full complement of drivers."
Late in the evening of September 23, Moore notified
Day that he would be unable to make his scheduled run to
Olathe, Kansas, because his wife was sick. Day was unable
to locate a replacement driver from company personnel
and recalled Jones' recent visit to the plant. Jones was
home asleep, when around 1 a.m. on September 24, he was
awakened by a phone call from Day, at which time Jones
testified on direct examination that the following conversa-
tion took place:
A. (Jones) And said he [Day] needed an experi-
enced driver, a good driver, that he had a hot load that
had to go.
Q. (General Counsel) And what response, if any,
did you make to him?
A. I told him, if I was going back to work, that it
would be on a fulltime basis, or I wouldn't come.
Q. What, if anything, did he say to you?
A. He told me to come on, that he was intending to
hire me back as a permanent employee.
On cross-examination Day admitted that Jones said
something about getting back on full time to which Day
replied . . . "I don't have any openings now but I said I'll
try to work something out and he finally agreed to come in
and go to Olathe, Kansas, with me." Jones came into the
plant at or about 2 or 2:15 a.m., was not required to fill out
any employment papers, and at 2:30 a.m. Day and Jones
pulled out of the Respondent's yard. Delivery was made to
the Kansas customer, and Day and Jones turned around at
Olathe and drove back to Indianapolis, arriving between
10 p.m. and midnight. Jones testified that during the 19-21
hour period of travel he did not discuss with Day the basis
in which he would be scheduled out, or the trips he would
receive.
On September 25 Dixon, without notice, dropped by
Jones' house with a union authorization card. Jones did
not complete his card as he had some doubts as to his
employment status with the Respondent. Dixon testified as
to Jones' cards as follows: "They were all completed except
one-Mr. Bob Jones. And there was something in there.
He didn't know whether he was still employed or not at the
Company. They hadn't never called him back or some-
thing." Jones did complete the card on September 26.
On September 26, Jones called Day about another trip.
Stairs, the assigned driver, was sick, Dixon was off ill, and
Moore did not want long trips because of his wife's condi-
tion, so Day asked Jones to take the load to Dallas and he
did so. Jones returned from Dallas on Sunday evening,
September 29, and made delivery to Muncie, Indiana,
Monday morning, September 30.
Stairs, the driver whom Jones had replaced on the Sep-
tember 26 trip to Olathe, testified that on September 25 he
had a conversation with Day about the status of Jones'
return to work, which he described as follows: "I asked
Tom if Bob was back to work and he made the statement
that he was going to utilize him in a part-time position, in
case one of us was sick, we wanted a day off, he was going
to use Bob in that utility position."
While Jones was driving back from his September 26 trip
QUEMETCO, INC.
to Dallas, Moore was in the dispatch office and was told by
Day that he put Bob Jones back to work. At that time
Moore had the union authorization cards in his possession,
but to the best of Moore's belief, Day had no knowledge of
this fact. Several days after the Dallas trip, Moore was in
Day's office and asked him if Bob was working. Day re-
plied "that he found out that Bob Jones and Mack Dixon
were two of the main instigators in getting the union cards
signed," called them some obscene names , and stated "as
far as he was concerned, Bob Jones no longer worked
there."
Frentz went to work for the Respondent in the week
commencing September 23 as their eighth driver. He testi-
fied on direct examination that, shortly after he was hired,
Day introduced him to Jones and referred to Jones as "a
part-time employee." General Counsel on redirect exam-
ined Frentz closely on the use of the term "extra board" in
the trucking industry. Frentz testified that he had been a
truckdriver for 15-20 years and that extra board was com-
mon terminology in the industry, and was a matter of crit-
ical importance to drivers. Frentz then went on to state
that "in the trucking industry, casual, extra board, or part-
time all three would mean the same thing." 4
Jones returned from Muncie to the plant in Indianapolis
at 10:30 or 11 a.m., on September 30, and asked Day when
he would be going out again, and Day told him to call the
next morning. While there, Jones testified that he learned
for the first time of the hiring of two new drivers, Jude
Frentz and Oren Demeree, when he saw their names on the
dispatch board. The dispatch board is located just outside
of the dispatcher's office, and lists the drivers' names, truck
numbers, and destinations. Jones admitted that he did not
see his name on the board.
Jones called Day or Veers every couple of days for 2 or
3 weeks thereafter, and each time was told "they didn't
have anything, it was slow." Jones received his final pay-
check for making the runs to Olathe and Dallas under the
same payroll number that he had been assigned during his
previous period of employment that had ended on August
30. Smith testified that the former payroll number was uti-
lized so as not to have to set up a new computer number
for that one check. In March 1975, Jones left the Indianap-
olis office to accept employment in Texas.
Veers testified that, subsequent to the time that Jones
completed his Dallas trip, there had been no occasion to
use an extra driver, or to use a plant employee, to make a
trip that normally would be made by a full-time driver. No
evidence was offered to rebut this testimony.
E. The Layoff of Mack Dixon; the Loan of Money
Dixon 5 had been hired by the Respondent on January 7
as an over-the-road driver, at the bottom of the seniority
list. Turnover of drivers was frequent and by September he
had risen to be the third senior driver out of a complement
Oren Demeree was not called as a witness , but G.C. Exh. 12 lists him as
the Company's ninth driver , who first drove for the Respondent in the week
commencing September 30.
5 From his demeanor on the stand, Dixon impressed me as basically an
honest witness, trying to tell the truth as best his memory would allow him.
477
of nine. Dixon and Manager Day, who was hired within a
few days of Dixon, became close personal friends on and
off the job, frequently visiting together in taverns and at
their homes. Dixon testified that sometime in September 6
after work, he and Day were having a beer at Norris' Tav-
ern, when Day said "he thought we was trying to get the
Union in there and he asked me what I thought about the
Union and what the men thought about him ...." Dixon
replied that he "didn't know whether it was going union or
not," and Day stated that if this Company did not want a
union, "they could run their loads LTL." Dixon testified
that he did not know what LTL meant, but believed it to
indicate that the Company would ship by other freight
lines.
On September 25, in the period during which Dixon was
soliciting union cards from his fellow drivers, Dixon testi-
fied that Day telephoned him "-madder than hell and
said I was going out and badgering, trying to force the guys
to sign union cards." Day testified that he had called Dix-
on and "I said, I don't know what you think you are doing
but I don't enjoy getting these phone calls from some of
the drivers telling me that you are trying to force them to
sign Union authorization cards."
Dixon had had medical problems with his kidneys for
some time, and, during the week ending September 29, he
had been absent from work for 3 or 4 days. He returned to
work on September 30 with a note from his family doctor
reporting that he was able to work. On October 1, Day was
dispatched on a run to make a delivery in Olathe, Kansas,
and a pick up in Wichita, Kansas, for delivery to Dallas.
En route to Dallas in Oklahoma, Dixon became ill with his
recurring kidney problem and reported this condition by
phone to Day. Upon arrival in Dallas, Dixon was taken to
a clinic by the RSR dispatcher, Roy Dancer. However,
after waiting several hours for a doctor, Dixon decided to
leave, and returned to the RSR plant. He slept 6-7 hours in
the cab of his truck, and then drove north with a load of
new lead for the Western Electric Company in Cierco, Illi-
nois, for delivery on Friday, October 4.
Around Benton , Arkansas, Dixon's kidney problem
flared up again and upon seeing a sign on the road marked
"Clinic," he stopped. No medical treatment was available
at the Clinic, and he was directed to "a little hospital or
whatever they call it across the street," where he received
some sulfur pills. Dixon phoned Day and told him of his
illness and Day advised him if he was that sick to bring the
load home, to Indianapolis. Dixon drove north, laid over
for 8 hours in West Memphis and then proceeded again.
The following day, October 4, in Effingham, Illinois, the
tractor's right front tire blew out, knocking out the head-
light and damaging the fender. Dixon called the plant
around noontime, and upon receiving authorization had
the tire replaced at a truck stop. Shortly after getting back
on. the road, a trailer tire went flat. Dixon phoned Veers at
his home around 6:30 p.m., and received a purchase -order
number to cover the tire repair. Veers told Dixon that he
had him scheduled off for a week because of his sickness,
as Day had called from Dallas and had instructed Veers
6 In the complaint the date was set forth as in May. In any event the
matter was fully litigated by all parties.
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about noon "to leave the schedule open as far as Mack was
concerned until we found out definitely what was wrong
with him."
Dixon drove the loaded tractor-trailer into the Indianap-
olis yard about 5:20 a.m., Saturday, October 5. About 9
a.m. Dixon spoke briefly to Plant Manager Gelpke, who
knew that Dixon had been ill out on the road and was long
overdue. On Monday the load of lead was delivered to
Western Electric in Illinois.
Day testified that on Thursday, October 3, he became
concerned about Dixon 's health , and since the Respondent
had a load to go to Dallas , he decided to make the run with
driver Bill Bell "to look for Mack on the road in case he
needed assistance ." Day arrived in Dallas on Friday morn-
ing at 10:30 a .m., and left at 6 p.m. to return to Indianapo-
lis. Day's search for Dixon along the route was futile, and
Day arrived back at Indianapolis on Saturday morning at
11:30 a.m., to find Dixon's tractor-trailer parked in the
yard. Day observed that there was some damage to the
right front of the tractor, and that there were two torn up
tires behind the cab and one more torn up tire in the trail-
er. Gelpke was present at the time and he and Day dis-
cussed the condition of the unit . Day was skeptical as to
the blowout of a tire causing such damage to the tractor.
On Monday afternoon , October 7, Dixon telephoned
Day and told him that his kidney infection was flaring up
again and that his doctor had advised him to take a few
days off. On Thursday morning, October 10, Dixon
phoned Day and asked if he "was going to have a run out,"
and Day said "Yeah, we have you scheduled for Olathe,
Kansas , to leave out on Sunday morning." Day told Dixon
that he would have to have a statement from his doctor
authorizing his return to work.
That evening between 9 and 9:30 p.m. Day phoned Dix-
on and asked him to come out and look at his new house.
Dixon, his wife , and children proceeded to meet Day, who
guided them to the new house. After talking about Dixon's
scheduled run to Kansas on Sunday , Dixon testified that
Day said he had brought him out there "to talk to you
about the union," and Day proceeded to ask Dixon why he
felt the drivers needed a union ; and said the Company
could benefit Dixon better without a union. Day also said
that, if the drivers voted the Union in, that the Company
would ship some of the merchandise by other means. After
further discussion Dixon stated that all the cards were
signed "and if you want to fire me , you can," and that Day
responded "No, I'm not going to do nothing like that, but
you are skating on thin ice." Mrs. Dixon was a completely
forthright and credible witness. She corroborated her
husband 's testimony and had a much more detailed re-
membrance of that evening 's family visit . She stated that
Day said he had been to Dallas, "and they left it in his
hands to persuade the drivers to vote against the Union;
and he told Mack if they went ahead and voted it in, that
he was going to lose his job, and he told Mack that he, also,
was walking on very thin ice as far as his job was con-
cerned."
On cross-examination , Day was questioned by the Gen-
eral Counsel about Mrs. Dixon's testimony that Day stated
he would lose his job if the Union was voted in.7
Q. Isn't it a fact that you told the Dixons if they got
a union in you would lose your job?
A. No, I don't think so; I don't recall it.
Day did admit that "there was some talk about thin ice
because of the Dallas trip with all the blown tires and ev-
erything and the shaky explanation he gave us."
On the morning of October 11, Dixon secured a written
release from his doctor, went to the Respondent's dispatch
office and gave Dr. Walter McMannis' report to Veers,
which stated "Mr. Dixon. can return to work on 10-13-74."
On Saturday, October 12, Gelpke advised Day that Dal-
las had requested that they not send Dixon out until he had
completed an accident report, brought his logs up to date,
and given a detailed report about the Dallas trip. Vice
President Lospinozo wanted this information because of
the failure to make the delivery to Western Electric on
October 4. Dixon was out of town on Saturday,' and on
Sunday evening, October 13, he went to the plant to get his
unit to begin his assigned trip to Olathe. The plant guard
had been instructed by Day not to let Dixon take his unit
out, and Dixon was so notified by the guard.
The next morning Dixon went to the plant and met with
Gelpke, Smith, Day, and Veers. Dixon did not want to fill
out an accident report as, in his opinion, the blowout of the
right front tractor tire did not constitute an accident. Dix-
on was told that he would not be permitted to run until he
submitted an accident report, completed his logs for the
Dallas trip, and submitted a report from the clinic at which
he had stopped in Benton, Arkansas.
Dixon filled out an accident report, brought his logs up
to date, and on Friday, October 18, submitted a report
from the Saline County Health Clinic showing that he had
in fact been at that clinic in Benton . He was thereupon
scheduled for the next available run, Tuesday, October 22,
the drivers being scheduled for a safety meeting on Octo-
ber 21.
Dixon testified that "around May, June" prior to the
union campaign he had gone to Day three or four times to
try to borrow some money from the Company, one time
for $400, and a couple of times for $200. Each time Day
would call back and refuse the loan.
In mid-November, several weeks before the scheduled
election, Stairs went to Personnel Manager Smith and
asked for an advance of $200 to pay bills and to buy
Christmas presents. Smith told him that, because the elec-
tion was coming up, she wanted to talk to the Respondent's
counsel to see what to do, as she remembered that in the
past the Company had advanced money to Moore during
his wife's pregnancy, and had advanced over $100 to a
driver named Goodman for bail money. Dallas, after re-
viewing past practice with legal counsel, authorized the ad-
vance to Stairs of $200.
About I week later, Dixon went to see Gelpke about
getting a loan. Dixon did not recall how he began this
conversation with Gelpke but, during its course, he stated
he was "considering dropping this labor thing" and re-
7 This was one of the very few times that Day equivocated in answering
any question , either on direct or cross-examination . Normally, Day testified
with directness and bluntness in rapid fire order. I credit Mrs. Dixon's
testimony.
QUEMETCO, INC. 479
ferred "to his labor charge against the Company." B There
was discussion about Day's leaving the Company, on Dix-
on being third on the seniority list of drivers, and finally
Gelpke referred Dixon to Smith for this handling of the
load. On November 27, Dixon received from Veers $200 in
the form of four $50 checks.
Shortly thereafter, upon requests by drivers Moore and
Bill Bell, the Company made similar advances in the range
of $150 or $200 to Moore and Bell.
F. Gelpke-Gibson Conversation
Gibson, who had been hired in the middle of July, was
outside the dispatch office late in October or early Novem-
ber, when he engaged in a brief conversation with Gelpke.
On direct examination General Counsel asked Gibson:
Q. Now during your employment at Quemetco,
have you had any conversations with anyone other
than the drivers, about the Union?
A. One incident . . . in front of Dick's office. I was
talking to Roy [Gelpke], and he asked me if I had been
affiliated with the Union before, and I said "yes."
On cross-examination, Gibson amplified the actual conver-
sation that took place in that hallway conversation.
Q. You were talking about the Union?
A. No, we were not. We were talking about how
things were; he had talked to me before. It is nothing,
but generally ..., how our equipment was, if we were
having any difficulty, that sort of thing.
Q. Then, out of the clear blue sky he said, "You
have been with the Union a while, haven't you?"
A. This is the way it was. Something to that effect.
Gibson then testified that the question was dropped and
not pressed any further. Gelpke testified that he knew Gib-
son had formerly worked for Kroger and McLean, two
large unionized companies, and he assumed Gibson be-
longed to the Union.
G. The Reduction of Work and Wages for Moore, Dixon,
Frentz, Stairs, and Gibson
On December 27, Moore filed a charge with the Board,
alleging that the Respondent had refused to provide Stairs,
Dixon, Gibson, Frentz, and himself 9 with the number of
miles of driving that had been assigned to them in the past.
Since the Company paid the drivers at 13-1/2 cents per
loaded trailer mile and 11-1/2 cents per unloaded trailer
mile, the number of miles a driver drove per week was the
primary basis of his weekly wage.
It was also a. firm rule of the Respondent, as contained
in the drivers' handbook, that the miles driven by the driv-
ers be equalized. Not only was this contained in the driv-
ers' handbook, but Gelpke, Smith, Day, and Veers all testi-
fied as to their support of this principle of equalization of
B Dixon had not filed the charge, as the charge was actually filed by the
Union on his and Jones' behalf.
9 Moore, Stairs, Gibson, and Frentz were responsive, credible witnesses.
Also, all four drivers testified against the Respondent while still in its em-
ploy, further supporting their credibility.
mileage. Gelpke succinctly stated his position: "I felt very
strongly that we have to keep all our drivers on an equal
mileage basis." Prior to February 1975, Veers equalized the
mileage of the drivers by considering the previous week,
the previous month, and the previous quarter, bringing the
mileage up to "fair" equality at the end of the quarter.
After February 1975, Veers still equalized the mileage but
did it over the prior 6-month period.
Shipping and Receiving Manager Day testified that on
various occasions he was asked by his drivers what could
happen to them if the Union won the election. His typical
answer was:
I had my own tractors one time and I know of a com-
pany called Peterson Manufacturing Company in Los
Angeles, that at one time they had six drivers and six
road rigs. Their drivers decided to go Teamsters, at
which time, this was an individually owned company,
Peterson Manufacturing Company, at which time he
had all leased equipment and when they went Team-
sters he turned his equipment back in, fired all the
drivers, and went to common carriers.
Gibson testified that on two occasions Day talked to him
about the Union. The first time, early in October while
standing outside of Day's office, Day said to him, "He told
me that the Company frowned upon the Teamsters, there
was a great possibility that, if they did get in that there was
nothing to keep the Company from turning the trucks back
into Hertz, and sending their freight by common carrier."
Several weeks later, while out on the company lot, Day
again talked to Gibson stating that the Company did not
have to have Indianapolis drivers, that the Company could
ship by Dallas drivers or New York drivers or common
carriers.
Drivers Dixon, Moore, Stairs, Gibson, and Frentz all
testified that the drivers talked freely about the Union in
the presence of Day on. any number of occasions. They
were not ashamed of their union support, and it was not
something they tried to hide. Day, in turn, admitted that he
had many discussions with the men about the Union and
told them that he did not like the Union. Day knew that
Dixon, Moore, Stairs, Gibson, and Frentz supported the
Union. He also knew, by their own statements, that Law-
son and Fleming were strongly antiunion, and that Demer-
ee had not signed a union authorization card.
General Counsel in his brief states: "Beginning with Oc-
tober Respondent's drivers lost most of the work hauling
batteries to Dallas and returning metals manufactured at
Dallas which had been previously assigned to them. Partic-
ularly dramatic was the loss of work delivering lead from
Dallas to the Delco Renny plant in Muncie, Indiana."
The Indianapolis to Dallas return ,trip was by far the
favorite run of the great majority of the drivers for many
reasons. It provided the most money in the shortest period
of time, as a driver could run to Dallas in 2 or 3 days, and
make more money than running to Muncie for 5 days.
Also, he only had to get up three mornings instead of five.
It was snow free. It was flat without the mountains and
curves of the eastern runs. It had higher speed limits. It
was, as all drivers testified, an easy run.
Veers testified that Day at times consulted with low
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mileage drivers as to which trips they would like to make
the next week . As of October 22, when Veers took over as
dispatcher, he made no attempt to let drivers select pre-
ferred trips. Veers stated that "We tried to dispatch the
men so that things would come out even-, so I dispatched
strictly on a mileage basis."
The equalization of mileage required that if a driver ran
2,000 miles I week he would probably make short runs the
next week . Seniority played no basis in earning opportuni-
ty.
Lospinozo testified credibly and knowledgeably on the
manufacturing and distribution system of the parent cor-
poration and its four subsidiaries, including the Respon-
dent. He stated that there was a corporation purpose in
placing plants in five sections of the country because of the
substantial freight charges per mile involved in hauling
lead. The object was to cut down on shipping expenses by
having plants service customers within 300 to 400 miles of
each plant.
The 40-year-old Dallas plant had the capacity to pro-
duce 50 percent of the total tonnage of new lead that could
be produced by all five RSR plants. The Indianapolis plant
was having start-up problems in the summer of 1974, and
the Dallas plant had the manufactured alloys ready for the
midwestern customers.
The vice president further stated that, after Gelpke's hir-
ing in July as the first full-time plant manager, the India-
napolis plant boosted its production of alloys 30 percent,
and it no longer became necessary for Indianapolis trucks
to go to Dallas to pick up the same alloy as they were
making in their own Indianapolis plant. Conversely, the
Indianapolis drivers no longer handled used batteries to
Dallas.
Lospinozo testified that the Indianapolis plant could not
produce high antimony alloys required by Delco in Mun-
cie, and that the Dallas plant therefore manufactured it,
and Dallas drivers delivered it to Delco. Dallas had a com-
plement of 35 drivers. Under the corporation's plantwide
system, the drivers employed at the manufacturing plant
had the primary responsibility to deliver the plant's own
products so as to best ensure the delivery on schedule.
Lospinozo also testified that most of their alloys are for
new car electrical batteries or replacement batteries, and
with the national decline of the sale of automobiles, the
sale of batteries had correspondingly gone down. As fur-
ther causes of a decline in driver's mileage , he stated that
Delco in Muncie has requested that at least half of their
shipments be by rail, and that DuPont in New Jersey has
requested the same shipping arrangement.
General Counsel introduced into evidence voluminous
records of the Respondent , General Counsel Exhibit 13
through 31, pertaining to trips made and mileage driven by
Indianapolis drivers. General Counsel's Exhibit 12 was a
compilation of miles driven by Respondent's drivers from
July 8, 1973, to February 23, 1975. From General
Counsel's Exhibit 12, General Counsel compiled a summa-
ry of miles driven and wages earned for the months of July,
August, and September as well as for the months of Octo-
ber, November, and December. The summary for these
two quarters as presented in the General Counsel's brief,
are set forth below:
JULY-SEPTII BER 1974
Miles Wages
Moore 22706 $3775.69
Lawson 22650 $3534.14
Dixon 21826 $3619.22
Fleming 23276 $3716.37
Stairs 22015 $3456.85
Gibson 18875 $2985.10
Bell 14172 $2307.83
Frentz 1915 $288.53
OCTOBER-DECEMBER 1974
Moore 12862 $2211.51
Lawson 19708 $3390.82
Dixon 14865 $2627.32
Fleming 19199 $3289.74
Stairs 17926 $2978.71
Gibson 18776 $2919.36
Bell 18500 $3133.24
Frentz 16125 $2676.78
Demeree 18502 $2870.01
H. Analysis and Conclusions
1. Interference, restraint, and coercion
The complaint alleges eight specific incidents of viola-
tion of Section 8(a)(1). The evidence in the incidents in-
volving Dixon has been set forth hereinbefore, and conclu-
sions for such incidents will be now considered. The
evidence and conclusions with respect to the remaining
allegations of 8(a)(1) violations will be discussed below in
the same order in which they are pleaded in paragraphs 5
and 6 of the complaint.
In the Norris Tavern incident, while Day and Dixon
were having a friendly beer after work, Day did inquire
briefly of Dixon what he thought about the Union and
what the men thought about him. Under the strong friend-
ship between the two, in the neutral atmosphere of the
neighborhood tavern, I find nothing coercive in Day's in-
quiry. Day further stated that the Company "could run
their loads LTL" if the Company did not want a Union.
Dixon did understand this to mean that if the Union got in,
the Company would get rid of its own trucks and drivers,
and ship its merchandise by common carrier freight lines.
Dixon understood Day's statement as an implied threat of
economic reprisal. Accordingly, the threat described above
QUEMETCO, INC. 481
was coercive and the Respondent violated Section 8(a)(1)
of the Act.
The next incident relates to Day's telephoning Dixon
and angrily accusing him of badgering employees to sign
union authorization cards. This call by Day was an unlaw-
ful infringement on Dixon's statutory rights . Day's angry
criticism was a restraint on Dixon, and interfered with the
employees' rights to engage in lawful union activity. I find
that the incident violated Section 8(a)(1).
The next incident involved the evening of October 10,
when Day invited Dixon and his family late in the evening
to come out and look at his new house. After they arrived
Day candidly laid it on the line, that he brought Dixon out
to talk to him about the Union, and interrogated him
about why he felt the drivers needed a union. Day again
told Dixon that, if the drivers voted for the Union, the
Company would ship by other means . Day admitted that
he had mentioned that Dixon was on thin ice, but stated
his use of that term was because of Dixon's Dallas trip with
its attendant problems. However, this was clearly a threat
by Day to Dixon to divorce himself from his union activi-
ties or he could be fired, using the Dallas trip as the excuse
for the firing. Day's interrogation and threats were coercive
and constituted a violation of Section 8(a)(1) of the Act.
As Day testified, he told the drivers several times about
the owner of the Peterson Company who employed six
drivers and leased six rigs , and when "they went Teamster,
he turned his equipment back in, fired all the drivers, and
went to common carriers." [Emphasis supplied.] There is
no doubt but that Day's listeners could infer or deduce
from Day's remarks that their employment would be im-
periled by a union victory. Day was in fact telling the driv-
ers that the Respondent could fire them just like Peterson
"fired all the drivers," simply because "they went Team-
ster," and that they would be replaced by common carriers
transporting the Respondent merchandise, Accordingly, I
find that Day's threat described above is clearly coercive
and a violation of Section 8(a)(1) of the Act.
The incidents of Gibson's conversation with Day outside
of Day's office and his conversation with Day out on the
lot several weeks later largely coincide with the language
that Day regularly used; that, if the Teamsters got in, the
Company could turn the trucks back to Hertz and ship by
common carrier. In the second conversation, Day pro-
posed another way that the Company could get rid of its
Indianapolis drivers, and that was by using the New York
drivers and Dallas drivers to haul in and out of the India-
napolis plant. I find that Day's threats described above are
clearly coercive and a violation of Section 8(a)(1) of the
Act.
I turn now to Gelpke's conversation with Gibson while
standing outside the dispatch office. Gibson's testimony
shows that he and Gelpke were involved in informal shop
talk, about trucks and trailers and general transportation
matters. In the context of that conversation, I can find
nothing coercive in Gelpke's brief, ambiguous comment,
"You have been with the Union a while, haven't you."
Gibson had been a member of the Teamsters union for 10
years, and openly proclaimed such membership. Accord-
ingly, I shall recommend that this allegation of the com-
plaint be dismissed.
2. The alleged discharge of Jones
There is no question but that Jones Ill was a regular, full-
time employee of the Respondent from April 18 to August
30, when he quit. The instant issue is whether he again
became an employee, and what kind of an employee, com-
mencing September 24. Jones buttresses his entire case on
the brief telephone conversation he had with Day shortly
after midnight on September 24. Jones claims that when
Day called to tell him he needed "a good driver, that he
had a hot load that had to go," that he wrung from Day an
agreement that he would come back "on a full-time basis."
Day agreed that Jones did raise the question of getting
back on full time , but claimed he only told Jones that "I'll
try to work something out." I credit Day in this instance. tl
At the last minute , Day had found himself without a
driver to pull the load to the Olathe customer, when Moore
had notified him that he would be unable to make the run.
In Day's past 9 months with the Company, he had occa-
sionally used Willie Campbell, the shipping supervisor, and
Kato Sanford, a plant leadman, as an emergency substi-
tute, but this time they were not available. Day, who had
had years of experience in the motor freight transportation
field, was desperate for a driver to pull that "hot load that
had to go," and at 1 a.m. he was not going to argue with
Jones. Instead he equivocated with Jones, gave him an am-
biguous answer, and got him to come in to move that load.
Clearly, Jones was an employee of the Respondent while
operating that tractor-trailer to and from Kansas. If he had
had a collision with another vehicle, the Respondent would
have been just as liable for his negligence as if the unit had
been operated by its most senior driver.
Jones himself showed that he had grave doubts about
the status of his employment on September 25 when Dixon
dropped around with a union authorization card. Jones
had just completed his 1-day trip to Kansas and yet, when
asked by Dixon to fill out the authorization card he did not
do so, as Dixon testified "He didn't know whether he was
still employed or not at the company."
On September 26, when Stairs was sick and no other
driver available, Day asked Jones to take the load to Dal-
las. Jones once again made a trip and once again was an
employee of the Respondent during that trip, that lasted
until Monday morning, September 30.
The possibility of the Respondent setting up an extra
board of casual or part-time employees was a matter of
vital concern to the regular drivers because of its known
danger of taking work away from full-time drivers and
thereby diluting their income. Stairs and Frentz, both low
seniority men, were each told by Day that Jones was going
to work as a part-time man in case of an emergency. Jones
was present when Day informed Frentz of this status, yet
he made no comment or objection.
Jones admitted that he saw Frentz' and Demeree's name
10 Jones was not an impressive witness. His testimony was evasive and
shifting.
11 It is beyond question that as Administrative Law Judge , I am not re-
quired to discredit all of Day's testimony because I have discredited some of
it. See N. L. R. B. v. Universal Camera Corporation, 179 F.2d 749, 754 (C.A. 2,
1950), vacated and remanded on other grounds, 340 U.S. 474 (1951).
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the dispatch board on September 30, with their destina-
tions set forth , and that he did not see his name. Jones
made no protest about his name being omitted. Although it
was his position that he had been hired by Day on Tues-
day, September 24, as a regular full-time employee, Jones
well knew that the schedule had been made up on the pre-
vious Friday, September 27, and if he had been a regular
employee, he would have been scheduled out on the Sep-
tember 30 schedule.
The General Counsel in his brief infers that Demeree
was hired after Jones ' September 24 trip to Kansas. While
the record does not supply Demeree's date of hire, his
name was listed on the September 30 dispatch board,
which had been taken from the schedule made up on Sep-
tember 27. The record does show that the Respondent had
a very long and detailed procedure for checking out driv-
ers, traffic records, and work records, and it may be fairly
inferred that Demeree was hired prior to September 24.
I find that the Respondent did hire Jones as an irregular
part-time employee for individual trip assignments to be
used to take care of emergency trips when a regular driver
was not available. No evidence was presented by the Gen-
eral Counsel that any emergency trips were required or
made after September 30.
Accordingly, I find that based on the record as a whole
the General Counsel has not proven by a preponderance of
the evidence that the Respondent discriminated against
Jones.
3. The layoff of Dixon
There is no need to recount in detail the events that
happened to Dixon on his long trip to Dallas . He was sick
along the way , he did have a substantial amount of tire
trouble with five tires being replaced . There was damage to
the tractor , and the load was not delivered to Western
Electric on schedule . However, all of this was known to
Day and Gelpke on Saturday , October 5, after Dixon
parked his unit in the plant yard . On October 7, Dixon
telephoned Day and told him that his kidney infection was
flaring up again , and that his doctor had told him to take a
few days off. From that Monday to Thursday, Dixon
heard nothing from Day, Gelpke, Smith , Veers, or any rep-
resentative of the Respondent.
Dixon himself called Day on October 10 to inquire if he
was going to have a run out and he was told he was sched-
uled for a Sunday run to Kansas . Day then made the rea-
sonable request that Dixon bring a statement from his doc-
tor authorizing him to return to work, and in fact his
family doctor did authorize him to return to work on Oc-
tober 13. It is thus clear that Dixon's lack of work for the
week of October 6 through 12 was due to his bona fide
medical problem , and was not due to any discrimination
by the Respondent.
It was not until late Thursday evening, October 10, that
Dixon next heard from any representative of the Respon-
dent . The initial invitation from Day was ostensibly from a
friend to come out for a social visit and see his new home.
However, shortly after Dixon 's arrival, the real purpose of
Day's invitation became apparent when Day informed him
he had brought him out there "to talk to you about the
Union." And Day did proceed to express his union hostili-
ty, and to plead for help from Dixon telling him that, if the
Union got in, he would lose his job. Day, who most of the
time testified rapidly, forcefully, and directly, when asked
if he had not told the Dixons that he would lose his job if
the Union got in, did not deny that he had done so, but
hesitated and equivocated, stating, "No, I don't think so. I
don't recall it." It was obvious that he did recall it. Day
well knew that Dixon was the spearhead of the union cam-
paign, and he proceeded to illegally interrogate Dixon
about the Union, and to threaten him with fear of dis-
charge by telling him he was "skating on thin ice."
The next morning Dixon took his medical authorization
into the dispatch office and gave it to Veers. Nothing was
said to Dixon about filling out an accident report, or secur-
ing a report from the clinic in Arkansas, or on bringing his
logs up to date. Finally, on Sunday when he went to the
yard to pick up his tractor-trailer to start his already sched-
uled run, he was turned away from the plant by the Re-
spondent guard.
On the following Monday, 9 days after he talked with
Day and Gelpke on the company parking lot standing near
his tractor-trailer, he met with the top executives of the
Respondent, Gelpke, Smith, and Day, and was told cere-
moniously that, before he could go out with a run, he had
to submit an accident report, complete his logs for the Dal-
las trip, and submit a report from the Arkansas clinic.
Both Day and Smith testified that the reason for the
demand for these documents was because the Dallas sales
office was saying they had to give Western Electric a rea-
sonable excuse why the load was not delivered on October
4, because the failure to deliver "caused the plant to be
shut down." As a matter of fact, Dallas officials well knew
that Dixon had been sick on the entire trip. On Wednesday
morning, October 2, Day had received a telephone call
from Dixon in Dallas, telling him he was sick. Day told
Dixon to see Coffey, the Dallas traffic manager, to see if
Coffey could get him to a doctor. Ray Dancer, the Dallas
dispatcher, took Dixon to a clinic that day. Day himself
was in Dallas all day Friday, October 4, for the dual rea-
sons of concern over Dixon's sickness, and to take a load
to the Dallas plant. It is certainly reasonable to infer that
Day discussed Dixon's sickness with Dallas officials during
the course of that day, as Day well knew of Dixon's long
history of kidney trouble.
The reasonable excuse for the failure to deliver the load
to Western Electric on October 4 was that the driver Dixon
was delayed by sickness throughout his trip. There is no
evidence that Western Electric called on RSR to produce a
medical report that Dixon had been sick during the trip.
The driver's logs and an accident report from Dixon were
clearly internal affairs of the Respondent, and of no value
to Western Electric.12
Day's invitation to Dixon to come to his house on the
evening of October 10 was the high water mark for the
12 The failure of the load to be delivered to Western Electric did not
"cause the plant to be shut down ," as claimed by Day and Smith . Lospinozo
testified that the failure to deliver only caused a department to shut down,
not the plant . Since the load was delivered the following Monday morning,
the department was closed down for a weekend, at most.
QUEMETCO, INC. 483
Respondent to secure Dixon 's cooperation against the
Union . When being nice did not cause Dixon to turn
against the Union, the Respondent turned to the harsher
method of putting obstacles in Dixon 's return to work. The
suspension of the union leader was a clear warning to the
other employees as to what could happen to their jobs if
they continued to support the Union.
The reason advanced by the Respondent for Dixon's
layoff is unbelievable in the light of the entire record, and
does not withstand scrutiny . He filled out the accident re-
port , brought his logs up to date , and secured a statement
from the Saline County Health Unit, all by Friday, Octo-
ber 18, all things that he could and would have done in the
previous week if the Respondent had so requested.
The inference of discriminatory motivation "is sustained
and buttressed by the fact that the [explanation offered by
the employer] failed to stand under scrutiny." N.L.R.B. v.
Griggs Equipment, Inc., 307 F.2d 275, 278 (C.A.: 5, 1962);
Stairs' loan as a precedent, authorized the loan to Dixon of
$200.
It was the Respondent's duty in the situation in which it
found itself to determine the question of making the loan
to Dixon, precisely as if a union were not in the picture.
McCormick Longmeadow Stone Co., Inc., 158 NLRB 1237,
1242 (1966); Newport Division of Wintex Knitting Mills,
Inc., 216 NLRB 1058 (1975). Smith realized that the
Company had made similar loans before the Union had
entered the picture, and Stairs' and Dixon's loans were,
thereby authorized. I find that the General Counsel has not
shown that Respondent violated the Act by making the
loan to Dixon.
5. The reduction of work and wages
The record is clear that, on numerous occasions during
the union campaign, Day threatened that the Respondent
would reduce or eliminate the drivers' work in some man-
N.L.R.B. v. Thomas W. Dant, et al., d/b/a Dant & Russell, ner, such as by turning the leased trucks back to Hertz, or
Ltd., 207 F.2d 165 , 167 (C.A. 9, 1953 ). The timing of the by shipping common carrier , or by using other subsidiaries'
layoff , upon the genesis of the union organizational move-
ment, strengthens this inference and strongly supports the
conclusion that the real motive of the Respondent was un-
lawful and discriminatory. As was stated in L.J. "Lee"
Folkens, d/b/a Standard Oil Distributors v. N.L.R.B., 500
F.2d 52 (C.A. 9, 1974): "Circumstantial evidence, includ-
ing the timing of [the] discharge , coupled with [the employ-
er's] apparently fabricated business justifications , is suffi-
cient to support the . . . findings" of discriminatory
motivation . Timing, knowledge , and unusual action of the
Respondent support this conclusion.
"Illegal motive has been held supported by a combina-
tion of factors, such as `coincidence in union activity and
discharge' . . . `general bias hostility toward the union'
... variance from the employer's `normal employment
routine' . . . and 'an implausible explanation by the em-
ployer for its action ..."' McGraw-Edison Company v.
N.L.R.B., 419 F.2d 67, 75 (C.A. 8, 1969). All of these fac-
tors are present in the instant case.
Accordingly, it is found that the layoff of Mack Dixon
on October 13, 1974, was in violation of Section 8(a)(3) and
(1) of the Act.
4. The loan of money to Dixon
The evidence is uncontradicted that Day refused to
make loans to Dixon on several occasions prior to the
union campaign . However , when Stairs at a later point
went to Personnel Manager Smith for a loan , she handled
the request in a professional , business-like way. She knew
the election was approaching, she knew that the Respon-
dent had lent money previously to two other employees,
Moore and Goodman , and she intelligently sought legal
advice from company counsel. Acting in good faith on le-
gal advice, she arranged for the loan to Stairs.
One week later, Dixon went to see Gelpke and engaged
in a rambling conversation about "his labor charge against
the company," about Day leaving the Company, about his
seniority status, and also about a loan of $200. Gelpke re-
ferred him to Personnel Manager Smith , and she, with the
trucks, if the drivers persisted in their desire to be repre-
sented by the Union.
General Counsel charges in his brief that the Respon-
dent carried out this threat in two ways, the first of which
we will examine at this time : In the 3 months following the
beginning of the Union's organizational efforts the drivers
suffered a substantial reduction in their wages from the
previous 3 months.
Since the driver's wages are determined by the mileage
they drive, I will .review the salient facts as they apply to
mileage.
The summary contained in General Counsel's brief, tak-
en from mileage and wage data that was supplied by the
Respondent, shows, among other things, the miles and
wages for eight drivers who worked during the July, Au-
gust, and September quarter, with their total mileage being
147,135 miles. The total mileage of the nine drivers listed in
General Counsel's summary who drove in the October,
November, and December quarter is 146,463 miles. How-
ever, Bob Jones, who drove during the months of July and
August, is not listed on the summary. His mileage, taken
from General Counsel's Exhibit 12, shows that he drove
10,628 miles for these 2 months. Jones' 10,628 miles, added
to the other eight drivers 147,135 miles, makes a total of
157,963 miles driven by the Respondent's drivers in the
July-September quarter, compared to 146,463 miles in the
October-December quarter, a difference of 11,500 miles or
a 7.3 percent reduction in mileage.
Lospinozo admitted that there had been a diminishing of
mileage, but he attributed it to many factors: RSR's-plan
to have customers served by subsidiary plants within 300 to
400 miles of the customer; that Gelpke had increased
Respondent's ability to produce additional types of alloys
that formerly had to come from Dallas, particularly a high
antimony alloy used by Delco in Muncie; that there had
been an economic recession in the manufacture of automo-
biles in 1974-75, which caused a reduction in the purchase
of Respondent's alloys and oxides for new and replace-
ment batteries; and that two major customers, Delco Remy
in Muncie and DuPont in New Jersey, had requested that
50 percent of their shipments be by rail. Although Lospino-
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
zo submitted no records to support his testimony, he was a
persuasive witness and the reasons he submitted were both
logical business reasons and commonsense factors that
caused the reduction in mileage of 7.3 percent. I am there-
fore unable to find that the Respondent discriminated
against all of the drivers by reducing their work.
General Counsel's brief sets forth the second claim of
work reduction discrimination as follows: In the 3 months
following the beginning of the Union's efforts among
Respondent's drivers the drivers who the Respondent knew
or suspected were antiunion fared better in wages than the
prounion drivers.
As the evidence shows, Day knew that Moore, Dixon,
Stairs, Gibson, and Frentz were prounion, and that Law-
son, Fleming, and Demeree were antiunion.
The record is crystal clear that the Respondent, as testi-
fied to by Gelpke, Smith, Day, and Veers, was dedicated to
equalizing the mileage of their drivers, so that their wages
would be reasonably equal. An examination of General
Counsel's summary above shows that in the July-Septem-
ber quarter, the drivers who worked the full 3 months,
Moore, Lawson, Dixon, Fleming, and Stairs, were dis-
patched so that their mileage came out reasonably equal.13
By adding together the mileage of Moore, Lawson, Dixon,
Fleming, and Stairs we have total mileage of 112,473 miles;
divided by 5, we have 22,495 miles as the average mileage
for these five drivers. I then compared the mileage actually
driven by each of these five drivers with this average mile-
age figure , and it is readily apparent that the Respondent
did fairly equalize the mileage of its drivers in July through
September.
NAME
MILES
DRIVEN
OVER
AV.
UNDER
AV. OVER UNDER
Moore 22706 211 00.9
Lawson 22650 155 00.6
Dixon 21826 669 02.9
Fleming 23276 761 03.4
Stairs 22015 481 02.1
No one could reasonably complain that the Respondent
did not live up to its avowed policy of equalizing the mile-
age during the July-September quarter. The five drivers
were each within a few hundred miles of the average mile-
age, and all were within a few percentage points of the
average mileage of the group who drove for the full 3
months.
However, an examination of the same summary for the
months of October, November, and December shows a
startling difference in the average miles driven by the driv-
ers during that quarter. All nine drivers drove the full 3
months. Their total mileage was 146,463 miles, making an
average mileage of 17,274 miles for each of the nine driv-
ers. On comparing this average mileage with the miles actu-
ally driven by each of the nine drivers, it is readily appar-
ent that the Respondent did not equalize the mileage of its
drivers during that quarter.
Whereas in the previous quarter, all 3-month drivers ran
virtually the same mileage, separated from each other by
only a few hundred miles, and small fractions of percent-
age points, in the October-December quarter there is a
tremendous difference in mileage, with the drivers being
separated by thousands of miles, and up to 21.1 percentage
points over the average. In actual mileage, Lawson and
Fleming, both known by Respondent to be openly antiun-
ion, drove the most mileage, with Lawson running 6,846
miles more than Moore, and 4,843 miles more than Dixon,
both prounion drivers. Demeree, believed by the Respon-
dent to be antiunion, drove 5,640 more miles than Moore,
although a newly hired driver with the least experience in
operating the Company's trucks and following company
routes. All three of the antiunion drivers drove more mile-
age than four of the five prounion drivers.
MILES OVER UNDER % /.
NAME DRIVEN AV. AV. OVER UNDER
Moore 12862 3412 20.9
Lawson 19708 3434 21.1
Dixon 14865 1409 08.6
Fleming 19199 2925 17.9
Stairs 17926 1652 10.1
Gibson 18776 2502 15.3
Bell 18500 2226 13.7
Frentz 16125 149 00.9
Demeree 18502 2228 13.7
13 The three drivers who did not work the full quarter were Gibson. who
started to work the week ending 7-22-74 : Bell started to work the week
ending 8-18-74; and Frentz the week ending 9-29-74.
QUEMETCO, INC. 485
The Respondent 's avowed policy to equalize mileage
was clearly and fairly shown by the mileage driven by its
drivers in the July-September quarter . However , this poli-
cy was shattered in the October-December quarter (when
the union campaign took place ), as amply shown by the
summaries above . I find that Respondent intentionally ma-
nipulated and reduced the mileage of the union supporters,
Moore , Dixon , Stairs , Gibson, and Frentz , thereby reduc-
ing their wages , because of their assistance and support of
the Union , in violation of Section 8(a)(3) and ( 1) of the
Act. Standard Beverage, Inc., 216 NLRB 283 (1975).
Upon the foregoing findings of fact , and upon the entire
record in this case , I make the following:
assisted and supported the Union , Respondent discrimi-
nated against each of them in regard to his hire and tenure
of employment and the terms and conditions thereof, to
discourage membership in the Union , and thereby engaged
in and is engaging in unfair labor practices proscribed by
Section 8(a)(3) and ( 1) of the Act.
6. The General Counsel has failed to prove by a prepon-
derance of the evidence that Respondent promised to
make loans , as alleged in paragraph 5(a) of the complaint,
and that the discharge of Henry S . (Bob) Jones was dis-
criminatorily motivated , and therefore the allegations of
the complaint in those respects should be dismissed.
THE REMEDY
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce within
the meaning of Section 2(6) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By the conduct set forth in section III,H , I, hereof,
Respondent interfered with , restrained , and coerced its em-
ployees in the exercise of rights guaranteed them by Sec-
tion 7 of the Act, and thereby engaged in , and is engaging
in, unfair labor practices proscribed by. Section 7 of the
Act, and thereby has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a)(1) of the
Act.
4. By discriminatorily laying off Mack Dixon on Octo-
ber 13, thereby discouraging membership in the Union,
Respondent has engaged in, and is engaging in, unfair la-
bor practices within the meaning of Section 8(a)(3) and (1)
of the Act.
5. By reducing the amount of work in the number of
miles assigned to be driven by Jerald Moore, Mack Dixon,
Dale Stairs , Jerry Gibson, and Jude Frentz, because they
Having found that the Respondent has engaged in cer-
tain unfair labor practices , I find it necessary to order the
Respondent to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
The Respondent having discriminatorily laid off Mack
Dixon for the period of October 13 through 21, 1975, I find
it necessary to order the Respondent to make whole Dixon
for the earnings lost by reason of his discriminatory layoff,
with backpay computed on a quarterly basis, plus interest
at 6 percent per annum , as prescribed in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing & Heat-
ing Co., 138 NLRB 716 (1962), for the period of time set
forth above.
The Respondent discriminatorily reduced the amount of
work and manipulated the driving assignments of Moore,
Dixon , Stairs, Gibson, and Frentz . I find it necessary to
order the Respondent to make them whole for the income
they lost, with backpay computed on a quarterly basis plus
interest at 6 percent per annum as prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis Plumb-
ing & Heating Co., 138 NLRB 716 (1962).
[Recommended Order omitted from publication.]