Ryder Truck Rental, Inc.

National Labor Relations Board - Board Decisions

Oct 17, 1967

167 N.L.R.B. 811 (N.L.R.B. 1967)

RYDER TRUCK RENTAL
Ryder Truck Rental , Inc. and Truck Drivers &
Helpers Local Union No . 317, an affiliate of the
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America.
Case 3-CA-3135
October 17, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On July 14, 1967, Trial Examiner Paul Bisgyer
issued his Decision in the above-entitled proceed-
ing, finding that Respondent had engaged in and
was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the Respondent filed exceptions to the Trial Ex-
aminer's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
brief, and the entire record in the case, and hereby
adopts the findings,' conclusions,2 and recommen-
dations of the Trial Examiner as modified below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, Ryder Truck Rental,
Inc., Syracuse, New York, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order, as
herein modified:
Delete from paragraph 2(d) that part thereof
which reads "to be furnished to" and substitute
therefor "on forms provided by."
' The Respondent 's exceptions to the Trial Examiner 's Decision are in
large part directed to the credibility resolutions of the Trial Examiner We
will not overrule the Trial Examiner's resolutions as to credibility , unless
a clear preponderance of all relevant evidence convinces us that they are
incorrect Upon the entire record , such conclusion is not warranted here
Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362
(C A 3)
2 We find, in agreement with the Trial Examiner, that the Respondent,
by discharging employee McNamara because he had engaged in pro-
tected , concerted , and union activity , violated Section 8(a)(3) and (I) of
the Act . We note, with regard to the issue of Respondent's knowledge of
811
McNamara's union activity, that employee Darling, who testified credibly
in other respects, also testified that the Union was mentioned at the meet-
ing with Wolf, Respondent's district manager, on January 7, 1967, during
which meeting McNamara was discharged However, even assuming that
the Respondent did not discharge McNamara because of union activity,
but only because he had engaged in concerted activities protected in Sec-
tion 7 of the Act, such conduct would, nevertheless, as the Trial Examiner
held, violate Section 8(a)(I) of the Act Whether Respondent's conduct be
deemed in violation of 8(a)(3) and (1), or only 8(a)(1), the remedy would in
any event be the same N.L R B v Washington Aluminum Company, 370
U S 9, Alabama Roofing & Metal Co, Inc, 142 NLRB 882
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL BISGYER, Trial Examiner: This proceeding, with
all the parties represented, was heard before me on April
18, 1967, in Syracuse, New York, on the complaint of the
General Counsel' and the answer of Ryder Truck Rental,
Inc., herein called the Respondent. In issue is the
question whether the Respondent discharged employee
Edward McNamara on January 7, 1967, because of his
union and concerted activities for mutual aid and protec-
tion and thereby violated Section 8(a)(3) and (1) of the
National Labor Relations Act, as amended. At the close
of the hearing, the Respondent moved to dismiss the com-
plaint for failure of proof. This motion, on which ruling
was reserved, is not denied for the reasons indicated
below. In so doing, careful consideration has been given
to the briefs submitted by the General Counsel and the
Respondent in support of their respective positions.
Upon the entire record, and from my observation of the
demeanor of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a Florida corporation, is engaged in
the truck leasing business at facilities located in various
States in the United States. The only facility here in-
volved is the one in Syracuse, New York. During the 12-
month period preceding the issuance of the complaint, the
Respondent's gross revenue derived from its business
operations exceeded $500,000.1 During the same period,
it purchased, transferred, and delivered directly in in-
terstate commerce to its various locations, trucks valued
in excess of $50,000.
The Respondent concedes, and I find, that it is engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act. I further find that effectuation of the policies
of the Act warrants the assertion of jurisdiction by the
Board.
II. THE LABOR ORGANIZATION INVOLVED
Truck Drivers & Helpers Local Union No. 317, an af-
filiate of the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
' The charge, on which the complaint is based, was filed on January 12,
1967, and a copy was duly served on the Respondent the same day
by registered mail
167 NLRB No. 114
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
1. Events preceding Edward McNamara's discharge
In the early morning of January 7, 1967, Harvey Wolf,
district manager in charge of the Respondent's Syracuse
operation, discharged Edward McNamara, a mechanic in
its employ for a year and a half, under circumstances
described below. McNamara was senior to all but one of
the seven or eight mechanics the Respondent employed
under the supervision of Edward Paul Morrison, the ser-
vice manager, to maintain and repair trucks leased to its
customers. Until November 19662 at least, McNamara
was a satisfactory and capable mechanic, having received
several increases, the last one the first of that month.'
Thereafter, according to the Respondent, McNamara's
work and attitude progressively deteriorated.
It appears that in mid-October or the beginning of
November, a number of mechanics were quite unhappy
with their working conditions and were considering en-
listing union assistance to remedy the situation.
Prominent in these discussions and efforts to improve
their terms and conditions of employment was Mc-
Namara who secured from the Union, in which he was a
member, "cards" for distribution among the employees.
However, after McNamara and several mechanics had
talked the matter over among themselves, it was decided
to defer taking union action until they first discussed their
complaints with Wolf.4 McNamara was designated by
these employees to communicate with Wolf to arrange for
a meeting with them. Thereafter, in the latter part of the
week, McNamara telephoned Wolf at his home at or
about 10.30 p.m. and advised him of the mechanics'
desire to discuss their problems with him. In a half hour
or so, Wolf arrived at the shop and met with McNamara
and three fellow employees. In the ensuing discussions,
in which McNamara played an active part, Wolf heard
the mechanics' complaints concerning the Company's
pay scales, the inequitable distribution of overtime, the
unfair work practices of Harry Goodenough, the lead
mechanic on the night shift, and the poor working condi-
tions at a customer's Jordan installation where a
mechanic was periodically detailed to service the leased
trucks. McNamara also used this occasion to voice his
personal resentment against Goodenough, with whom he
worked on the night shift, for the treatment Goodenough
accorded him and for Goodenough's conduct in preempt-
ing overtime.-, The meeting closed on a pleasant note with
Wolf promising to look into their complaints.6 A few days
later Goodenough was transferred to the day shift.7
Because a number of shop problems still remained un-
resolved, McNamara and other employees again con-
ferred with Wolf 2 or 3 weeks after their first meeting.
Here, too, a complaint was voiced that Harry
L All dates related to 1966 except as otherwise indicated
s The record shows that McNamara was last recommended for a merit
increase on October 15, which he received about November I
, For this reason , McNamara refrained from soliciting signatures at that
time
5 Other employees had similar complaints
, The foregoing findings concerning this meeting are based on portions
of the testimony of McNamara and Wolf, which I deem credible
Goodenough was giving a junior employee a hard time.
Also raised were such subjects as overtime and pay
scales. This meeting was followed by another one called
by Wolf toward the close of November or the early part
of December at which Wolf explained the Company's
policies and pay scales.
About a week before Christmas, McNamara and em-
ployee Raymond arranged a luncheon meeting with Wolf
and Morrison where they protested that the shop was
dirty and that uniforms were not being returned to em-
ployees Wolf and Morrison rejected their complaint
about the shop, stating that the employees would have to
bear with those conditions until the Company built a new
shop. As for the uniforms, Wolf advised the employees
that that problem would be rectified
On Friday afternoon, January 6, 1967, about
lunchtime, McNamara discussed with employees
Darling, Lane, and Anderson the advantages of joining a
union and all indicated that they favored the idea. Thereu-
pon, McNamara distributed among the group the cards,
not otherwise described, which he had previously ob-
tained from the Union. While McNamara immediately
signed his card and declared that he would consult with
the Union, the other employees kept theirs without sig-
ning them at that time. In the evening, Darling informed
McNamara that he was going to speak to Harvey Mac-
Dougall, one of the mechanics on the night shift, to give
him a chance to sign a card. Accordingly, Darling
telephoned MacDougall at the shop and arranged for
MacDougall to meet with him and McNamara at the City
Line Grill at 12:30 a.m. after work.8
2. The unexpected encounter at City Line Grill,
McNamara 's discharge
Instead of employee MacDougall keeping his appoint-
ment, District Manager Wolf and Service Manager Mor-
rison appeared at the City Line Grill at 12:30 a.m. (Janua-
ry 7). Undeniably, they were not invited; nor obviously
was their appearance anticipated Explaining their
presence, Morrison testified that Lead Mechanic
Goodenough informed him that McNamara had a
"problem" and wanted to meet with MacDougall; that
Goodenough expressed apprehension that his shift might
be changed again, as it had been on two prior occasions
when McNamara "had a serious problem"; that therefore
Goodenough requested Morrison "to check on it";9 and
that he (Morrison) then called Wolf, conveyed this infor-
mation to him and both decided to proceed to the bar and
grill. Morrison and Wolf admitted that they went to this
meeting without any intention of discharging McNamara.
In fact, according to Morrison's further testimony, Wolf
told him that "the reason for going there was to straighten
[out] the problem between the two ... so that we
wouldn't lose either of them."
' About a month later, after McNamara was transferred to the day shift,
at his request, Goodenough was returned to the night shift when Mc-
Namara again complained to Wolf that he was unable to work with
Goodenough
8 The foregoing findings are based on an evaluation of McNamara's and
Darling's testimony
9 It is noted that neither Goodenough nor MacDougall were produced
as witnesses
RYDER TRUCK RENTAL
After parking their car, Wolf and Morrison met
Darling, who was the first to arrive, near the entrance to
the grill Evidently surprised, Darling inquired what they
were doing there and received the response that they un-
derstood that McNamara had a "problem" and that they
wanted to know what it was. Darling replied that Mc-
Namara was expected shortly and that he could tell them
himself. Thereupon, Wolf, Morrison, and Darling entered
the grill, soon to be followed by McNamara After Wolf
bought the group beer, they sat down in a booth to talk.
The ensuing conversation, which lasted about 10 minutes
or so, is the subject of a serious conflict in testimony.
According to McNamara's version, which Darling cor-
roborated in substantial respects, the following trans-
pired: Wolf opened the conversation by asking Mc-
Namara what this was all about. McNamara answered
that he had nothing to say. Wolf then remarked that he
was tried of being called out in the middle of the night. 10
This evoked McNamara's response that it was not he
who had called him out. At or about this point Wolf told
McNamara that he was "done." In reply to McNamara's
inquiry as to what he meant , Wolf said that he was fired
and to pick up his tools in the morning. McNamara
thereupon asked Wolf the reason and received the answer
that he was "a troublemaker and an agitator" who stirred
up trouble, adding that he could not see how McNamara
could do this to him after what he had done for Mc-
Namara and mentioned, in particular, bills paid by "medi-
cal insurance" furnished by the Company. Continuing,
Wolf, in obscene language, charged McNamara with tak-
ing advantage of the Respondent. When McNamara
stated that he did not understand this charge, Wolf ex-
plained that he was referring to the long coffeebreaks Mc-
Namara had been taking in the morning," and the com-
pany time he had spent at a competitor's garage having
coffee.12 Wolf then declared that these were additional
reasons for McNamara's discharge, but mentioned no
others. With this, the conversation ended.
Wolf, supported by Mornson's testimony, described
the verbal exchange between him and McNamara which
led to the latter's discharge, as follows: When he, Mor-
rison, McNamara, and Darling were seated in the booth,
he asked McNamara what was his problem. McNamara
replied that he had many problems, asserting that,
although he had spoken to both him and Morrison on
many occasions, he obtained no results. Without ascer-
taining what these problems were, Wolf retorted that he,
too, had problems with McNamara and charged "that he
had been dogging it for over a three-month period." Mc-
Namara reacted to this accusation by pointing his finger
at Wolf and declaring that he had,been "sticking it to
[him] - and riding for over three months and will con-
tinue to do so."13 Wolf responded by discharging Mc-
° Wolf conceded that he might have made that remark
The Respondent , however, does not contend that this was a ground
for McNamara 's termination Besides, the record indicates that Mc-
Namara's coffeebreak practices were no different from other employees',
nor was he ever reprimanded for such conduct
12 This refers to an incident that occurred on December 13 when, after
finishing a road service assignment , McNamara stopped over at a com-
petitor's garage to have a cup of coffee and parked his company truck in
front of the establishment Wolf testified that he did not recall mentioning
this incident dunng the discharge conversation on January 7
11 On cross-examination, Wolf quoted McNamara as saying, "I've been
stuffing you for three months and will continue to do so "
813
Namara on the spot. Under cross-examination, Wolf
testified that he used the phrase "dogging it" to mean
"dogging on the job, wasting time," adding that it also in-
cluded poor repairs on the trucks, although he conceded
that he did not mention "poor repairs" in this conversa-
tion.'4 McNamara and Darling categorically denied the
defiant remarks attributed to McNamara.
From my evaluation of the evidence, I find Mc-
Namara's testimony regarding the circumstances of his
discharge more candid and credible than Wolf's. First, I
am not convinced of the innocence of Wolf's purpose in
visiting the bar and grill at 12:30 in the morning purport-
edly at the request of Leadman Goodenough to verify
the latter's suspicion that McNamara was about to in-
stigate another change in Goodenough's work shift. Not
only is it obviously beyond McNamara's power to force
such a change, but no plausible reason was given why
Wolf could not wait until later in the morning when Mc-
Namara reported for work, as he was scheduled to do, to
see whether a shift change was his objective. Especially
is Wolfs unexpected appearance at the bar and grill in-
comprehensible - except perhaps for an improper reason
- in view of his anger vented upon McNamara for being
called out in the middle of the night when it was con-
cededly not he who had alerted him to the meeting. More-
over, I find it highly unlikely that McNamara would
defiantly admit the truth of Wolfs accusation that he was
taking advantage of the Respondent and brazenly warn
Wolf of his intention to persist in such conduct, at the
risk of discharge at a time when he was interested in
retaining his job until he secured another one and, indeed,
was exerting himself to improve working conditions at
the Respondent's shop. For these reasons and consid-
ering McNamara's account in the context of all the eiv-
dence, I credit his testimony's
Following his discharge McNamara came to the shop
only to return the shop keys and to remove his toolbox.
About a week later employee Darling engaged Service
Manager Morrison in a conversation in the latter's office.
According to Darling's uncontroverted testimony, which
I credit, he asked Morrison "what was so bad about the
Union." Morrison replied that the Union would not affect
him at all but that "it would effect [sic] Mr. Wolf and it
would only effect [sic] him in the respect how it would
look to the Miami office.... [T]hey would think that he
couldn't run a shop without Union management...."
B. Concluding Findings
As shown above, the mechanics were dissatisified with
their working conditions in the shop and McNamara
furnished the leadership in calling management ' s atten-
tion to their complaints and grievances . When these ef-
11 Wolf also testified that he did not recall Mornson saying anything
during this conversation Morrison , at first, testified that he made no state-
ment while in the booth However, in answer to the next question put to
him under cross -examination, he testified that he told McNamara that his
work had been " sloppy and poor " In view of the contradicting testimony
of McNamara , Wolf, and Darling, I do not credit Morrison 's testimony
concerning his criticism of McNamara's work.
11 In crediting McNamara I have carefully weighed all the factors bear-
ing on his credibility Ideal Donut Shop; 148 NLRB 236 Moreover, he
was corroborated in substantial respects by Darling who was still in the
Respondent's employ and therefore not likely to lie Georgia Rug Mill,
131 NLRB 1304, 1305,fn 2
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forts failed to remedy the situation, McNamara turned to
the Union for assistance and accordingly began distribut-
ing union cards among the mechanics, for their signa-
tures.'s Within several hours, he was summarily dis-
charged by District Manager Wolf at the City Line Grill
where McNamara and employee Darling were supposed
to meet Harvey MacDougall, a mechanic on the night
shift, after work to discuss the Union. I find that Wolf
terminated McNamara because of his legitimate union
and concerted activities and in order to prevent the
Union from gaining a toehold in the shop.
Despite the Respondent's protestations to the contra-
ry, I have little doubt that Wolf and Service Manager
Morrison were aware, or at least suspected, the purpose
of the City Line Grill meeting and McNamara's union ad-
vocacy. This they undoubtedly learned indirectly from
MacDougall in whose stead they met with McNamara
and Darling at the bar and grill. Indeed, such knowledge
is betrayed by the transparency of Wolf's and Morrison's
professed reason that they went there at the behest of
Lead Mechanic Harry Goodenough to check on Mc-
Namara's suspected demand for Goodenough's transfer
from the night shift. Not only is there not the slightest
evidence that the scheduled appointment with MacDou-
gall had this objective (neither MacDougall not
Goodenough were produced as witnesses), but it strains
one's credulity to believe that management, which
manifestly possesses the exclusive power to effect job
transfers, would intrude upon a private employee meeting
at a bar and grill at midnight, for such purpose, unless it
had a more questionable reason for the mission. Espe-
cially is this so in view of Wolf's expressed annoyance at
being summoned in the middle of the night.
Also revealing of the Respondent's union knowledge
and, indeed, its motivation, is Morrison's disclosure to
Darling about a week after McNamara's discharge that
Wolf was concerned if the shop were unionized because
the Respondent's Miami office would regard this as proof
that he could not run the shop without a union. In the con-
text of all the events that occurred herein, it is no explana-
tion, as the Respondent in effect offers in its brief, that
this comment was prompted by the Union's intervening
request for recognition as the employees' bargaining
representative.
The inference that antiunion considerations dictated
McNamara's termination is further impelled by Wolfs
characterization of McNamara as "a troublemaker and an
agitator" who stirred up the men. It is not uncommon in
the area of industrial relations for aggressive employee
advocates of union and concerted activities to be
euphemistically described in those terms."
The Respondent, however, denies that it discharged
McNamara because of his union or concerted activities.
Rather, it insists that McNamara precipitated his own ter-
mination on January 7 when he admitted Wolfs accusa-
tion that his work was sloppy and simultaneously hurled
abusive and insulting language at Wolf. It further urges
that, were it not for a tight mechanic labor market in the
area, it would have dismissed McNamara sooner because
of his poor job performance and previously announced in-
tention to look for other employment.
It is, of course, established law, as the Respondent
points out, that an employer may discharge an employee
for any reason, good, bad, or indifferent, provided he is
not motivated by union considerations. It is equally well
settled that a "justifiable ground for dismissal is no
defense if it is a pretext and not the moving cause." 111
I have previously found, contrary to the Respondent,
that McNamara actually did not make the abusive re-
marks attributed to him. Nor am I persuaded that Mc-
Namara's purportedly deficient job performance or his
announced intention to search for other employment
motivated his discharge. As noted above, Wolf and Mor-
rison testified that when they went to the City Line Grill
they had no intention of terminating McNamara but ac-
tually desired to retain him. Taking their admission at
face value, it inevitably follows that, whatever his
shortcomings' 9 - and I make no findings in that respect -
they could not possibly have entered into Wolfs decision.
Moreover, the tight labor market which the Respondent
cites as an excuse for not discharging McNamara before
January 7, when it did, also prevailed on the latter date.
In these circumstances, I find that it was the injection of
the Union as a factor in McNamara's efforts to secure im-
provements in working conditions with the attendant un-
welcome prospect of dealing with that organization as the
representative of the mechanics that brought about his
dismissal. Such conduct clearly constitutes "discrimina-
tion in regard to . tenure of employment to ...
discourage membership in ... [a] labor organization,"
which Section 8(a)(3) of the Act prohibits. The fact that
about 25 to 40 of the Respondent's terminals might be
unionized does not immunize the discrimination practiced
against McNamara.
Even were I to find - which I do not - that Wolf was
not apprised that McNamara was sponsoring the Union
in furtherance of his efforts to better working conditions,
it cannot be seriously claimed that Wolf was not aware
that since mid-October or the first part of November Mc-
Namara was actively engaged on behalf of employees in
pressing their complaints and grievances concerning
terms and conditions of employment. Undeniably, his
discussions with management, in which other employees
also participated, covered such items as pay scales, over-
time, shop cleanliness, Leadman Goodenough's prac-
tices, and the physical working conditions at a customer's
installation where Respondent's mechanics were periodi-
cally assigned to perform repairs on leased trucks. Cer-
'S The record is not clear whether these were membership or authoriza-
tion cards which designated the Union as the employees' bargaining
representative
"See, for example , American River Constructors, 163 NLRB 551
and General Finishers Corporation, 133 NLRB 999, 1007
18 N L R B v Solo Cup Company, 237 F 2d 521,525 (C A 8)
19 1 have serious doubts that McNamara 's capabilities had deteriorated,
as the Respondent suggests, to a point warranting discharge Apart from
the fact that McNamara might not have been responsible for some of the
repairs claimed to have been required because of his faulty work, it is
noted that as of December 13, the date the Respondent purportedly con-
sidered discharging McNamara, it could only produce at the hearing
evidence of four repair jobs he allegedly had performed poorly out of a
total of well over 500 jobs he did per year, and only two deficient jobs
since that date Significantly, McNamara was never warned that he was
subject to dismissal for poor work but, on the contrary, as recently as
November 1, he was given a merit raise Moreover, both Wolf and Mor-
rison conceded that other mechanics also did unsatisfactory repair jobs,
resulting in frequent customer complaints and the jobs being redone by
different mechanics Yet, these mechanics suffered no discipline, much
less discharge
RYDER TRUCK RENTAL
tainly, these are matters of legitimate concern to em-
ployees. I, therefore, find that McNamara's activities,
calculated as they were to promote these interests, con-
stituted concerted activities for mutual aid and protection
which Section 7 of the Act guarantees employees.20 I
further find that, by discharging McNamara because he
was "a troublemaker and an agitator" who stirred up the
men, the Respondent independently violated Section
8(a)(1) of the Act.21
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent, set forth in section
III, above, occurring in connection with its operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Pursuant to Section 10(c) of the Act, I recommend that
the Respondent cease and desist from engaging in the un-
fair labor practices found and take certain affirmative ac-
tion designed to effectuate the policies of the Act.
I have found that the Respondent unlawfully
discharged employee Edward McNarama because of his
union and concerted activities. To redress these unfair
labor practices, I recommend that the Respondent offer
him immediate and full reinstatement to his former or a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for any loss of earnings he may have suffered by
reason of the discrimination against him by payment to
him of a sum of money equal to that which he normally
would have earned from January 7, 1967, the date of the
discharge, to the date of the offer of reinstatement, less
his net earnings during the said period. Backpay shall be
computed with interest on a quarterly basis in the manner
prescribed by the Board in F. W. Woolworth Company,
90 NLRB 289, 291-294, and Isis Plumbing & Heating
Co., 138 NLRB 716.
To facilitate the computation, as well as to clarify the
named employee's rights to reinstatement, the Respond-
ent shall make available to the Board, upon request,
payroll and other records necessary and appropriate for
such purposes. I further recommend that the Respondent
notify this employee of his right to reinstatement, upon
application, if he is serving in the Armed Forces of the
United States. The posting of an appropriate notice is
also recommended.
In view of the nature of the unfair labor practice here
found which "goes to the very heart of the Act,"22 there
exists the danger of the commission by the Respondent of
other unfair labor practices proscribed by the Act. Ac-
cordingly, I recommend that the Respondent cease and
desist from in any other manner infringing upon the rights
guaranteed employees in Section 7 of the Act.23
20 Insofar as relevant, Section 7 provides that "[e]mployees shall have
the right to engage in . concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection
21 Section 8(a)(I) of the Act makes it an unfair labor practice for an em-
815
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of
employment of Edward McNamara to discourage mem-
bership in, and activities on behalf of, the Union, the
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) of the Act.
4. By discharging Edward McNamara for engaging in
concerted and union activities for mutual aid and protec-
tion, the Respondent has intefered with, restrained, and
coerced employees in the exercise of their statutory rights
within the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in the case, and pursuant
to Section 10(c) of the National Labor Relations Act, as
amended, it is ordered that the Respondent, Ryder Truck
Rental, Inc., Syracuse, New York, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Truck Drivers &
Helpers Local Union No. 317, an affiliate of the Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or in any other
labor organization, by discharging employees or dis-
criminating against them in any other manner in regard to
their hire or tenure of employment or any term or condi-
tion of employment.
(b) Discharging employees for engaging in concerted
or union activities for mutual aid and protection guaran-
teed to them in Section 7 of the Act.
(c) In any other manner interfering with, restraining,
or coercing employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist
the above-named Union or any other labor organization,
to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities
except to the extent that such right may be affected by an
agreement requiring membership in a labor organization
as a condition of employment, as authorized by Section
8(a)(3) of the Act.
2. Take the following affirmative action which is
to effectuate the policies of the Act:
(a) Offer Edward McNamara immediate and full rein-
statement to his former or a substantially equivalent posi-
tion, without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of earnings
ployer "to interfere with, restrain, or coerce employees in the exercise of
the rights guaranteed in section 7."
22 N.L.R B v Entwistle Mfg. Co, 120 F 2d 532, 536 (C A 4)
23 N.L R B. v Express Publishing Company, 312 U.S 426,433.
816 DECISIONS OF NATIONAL
he may have suffered by reason of the discrimination
against him, in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Notify Edward McNamara if presently serving in
the Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Train-
ing and Service Act, as amended, after discharge from the
Armed Forces.
(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 or useful in analyzing the amount of
backpay due and the right to reinstatement under the
terms of this Recommended Order.
(d) Post at its place of business in Syracuse, New
York, copies of the attached notice marked "Appen-
dix."24 Copies of said notice, to be furnished by the
Regional Director for Region 3, after being duly signed
by Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt thereof,
and be maintained it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices
to its employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 3, in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.25
24 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
25 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 3, in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT discourage membership in Truck
Drivers & Helpers Local Union No. 317, an affiliate
of the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, or any other labor organization, by discharging
any of our employees, or otherwise discriminating
LABOR RELATIONS BOARD
against them in regard to their hire or tenure of em-
ployment or any term or condition of employment.
WE WILL NOT discharge any of our employees for
engaging in concerted or union activities to improve
their terms and conditions of employment and for
any other mutual aid and protection.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
right to self-organization, to form labor organiza-
tions, to join or assist the above-named Union or any
other labor organization, to bargain collectively
through representatives of their own choosing, to en-
gage in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, or
to refrain from any and all such activities except to
the extent that such right may be affected by an
agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized by
Section 8(a)(3) of the Act.
WE WILL offer Edward McNamara immediate and
full reinstatement to his former or a substantially
equivalent position, without prejudice to his seniority
or other rights and privileges, and make him whole
for any loss of earnings suffered by reason of the dis-
crimination against him, as provided in the section of
the Trial Examiner's Decision entitled "The
Remedy."
WE WILL notify the above-named employee if
presently serving in the Armed Forces of the United
States of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act
and the Universal Military Training and Service Act,
as amended, after discharge from the Armed Forces.
All our employees are free to become, remain, or to
refrain from becoming or remaining, members of Truck
Drivers & Helpers Local Union No. 317, an affiliate of
the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other
labor organization, except to the extent that such right
may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as
authorized by Section 8(a)(3) of the Act
RYDER TRUCK RENTAL,
INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, The 120 Build-
ing, 120 Delaware Avenue, Buffalo, New York 14202,
Telephone 842-3100.