Trumbull Asphalt Co., Inc.

National Labor Relations Board - Board Decisions

Sep 26, 1975

220 N.L.R.B. 797 (N.L.R.B. 1975)

TRUMBULL ASPHALT CO., INC.
Trumbull Asphalt Co., Inc. and Chauffeurs, Team-
sters, Warehousemen and Helpers Local Union No.
135 affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America and Marvin P . Hamilton. Cases
25-CA-6631 and 25-CA-6791
September 26, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On May 19, 1975, Administrative Law Judge Rob-
ert Cohn issued the attached Decision in this pro-
ceeding. Thereafter, the Respondent and the Charg-
ing Party filed exceptions and supporting briefs. The
General Counsel filed limited exceptions and the
Charging Party filed a "statement in support of Gen-
eral Counsel's brief."
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified herein.
The Administrative Law Judge found that the Re-
spondent terminated employee Marvin P. Hamilton
for reasons proscribed by the Act. We agree, but in
our view we find it unnecessary to decide whether the
Respondent violated Section 8(a)(3) of the Act. That
is, the record amply supports the Administrative Law
Judge's finding that Hamilton was discharged be-
cause he called Superintendent John Freitag's atten-
tion to the Respondent's failure to follow its own
longstanding practices in assigning work to full-time
employees. Thus, on August 5, Hamilton alerted
Freitag to the fact that he had been assigned to a
better run than fellow employee Larry Miller and,
further, that the run should have been assigned to
Miller because he had more seniority than Hamilton.
Freitag "angrily" retorted that he was the supervisor
and could assign the runs the way he wanted to. Two
days later, on August 7, Hamilton protested to Frei-
tag about the assignment of two runs to part-time
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule and Administrative Law Judge 's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc. 91
NLRB 544 (1950), enfd . 188 F.2d 362 (C.A. 3, 1951). Ws have carefully
examined the record and find no basis for reversing his findings.
797
employee Bud Bohner because he , Hamilton, felt
that a full-time driver could handle the additional
assignment and further because Bohner would re-
quire the use of the truck Hamilton was then driving.
As the Administrative Law Judge found , the Re-
spondent assigned the better runs on the basis of se-
niority . He also found that , as a matter of policy, the
Respondent assigned work to part-time drivers only
when the full-time employee drivers were unavail-
able. Obviously , these matters were of considerable
concern to the employees because they bore an inti-
mate relation to their daily duties . See, generally,
Hugh H. Wilson Corporation v. N.L.R.B., 414 F.2d
1345 (C.A. 3, 1969), enfg . 171 NLRB 1040 (1968).
Clearly then, Hamilton was engaged in an instance
of protected concerted activity when , on his own be-
half and that of his fellow employees , he protested
the asserted misapplication of these longstanding
policies . Therefore, we find that the Respondent vio-
lated Section 8(a)(1) of the Act by discharging Ham-
ilton for engaging in this activity . See Ben Pekin
Corp., 181 NLRB 1025 (1970), enfd . 452 F.2d 205
(C.A. 7, 1971); see also Merlyn Bunney and Clarence
Bunney, Partners, d/b/a Bunney Bros . Construction
Company, 139 NLRB 1516 (1962); Interboro Contrac-
tors, Inc., 157 NLRB 1295 (1966), enfd . 388 F.2d 495
(C.A. 2, 1967).
In reaching this decision , we have carefully consid-
ered the fact that after speaking to Freitag on August
7 Hamilton left the plant and refused to perform his
final assignment of the day. The Respondent claimed
that his conduct was tantamount to "insubordina-
tion," but, in our view , Hamilton did not exceed the
permissible bounds of his protected activity. For all
that the record shows is that Hamilton presented his
grievance to Freitag and, by the latter's admission,
never uttered a "curse word or unpleasant word."
After he had finished this brief discussion, Hamilton
simply departed without incident and reported for
work the following day. Furthermore , as the Admin-
istrative Law Judge found , such conduct was not
"unheard of," for employees Gilbert Grubbs and El-
mer Hamilton testified that they had refused to "pull
a load" without suffering any disciplinary conse-
quences . The difference , as Freitag testified with re-
spect to Grubbs' refusal , was Hamilton 's "attitude."
Thus, it is clear that the Respondent resented Marvin
Hamilton's challenging its authority in presenting the
protests and the manner in which he did so.
At the most , Hamilton's conduct appears to have
been impulsive . But we , with judicial approval, have
long recognized that some leeway is accorded em-
ployees in the exercise of protected activity. See, e.g.,
Thor Power Tool Company, 148 NLRB 1379 ( 1964),
220 NLRB No. 120
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
enfd. 351 F.2d 584 (C.A. 7, 1965).2 Certainly we can-
not say that Hamilton's alleged insubordinate con-
duct could fairly be characterized as "indefensible."
N.L.R.B. v. Washington Aluminum Co., supra, 370
U.S. at 17.
In sum , we find that the Respondent violated Sec-
tion 8(a)(1) of the Act by discharging Marvin Hamil-
ton because of his concerted protected activities, as
alleged in the complaint. Accordingly, we shall order
that the Respondent cease and desist from engaging
in such conduct.
AMENDED CONCLUSIONS OF LAW
Renumber paragraphs 4 and 5 of the Administra-
tive Law Judge's Conclusions of Law as paragraphs 5
and 6, respectively, and delete paragraph 3, substitut-
ing therefor the following:
3. By terminating the employment of Marvin
Hamilton because he engaged in concerted activities
protected by the Act, the Respondent has engaged
in, and is engaging in, unfair labor practices within
the meaning of Section 8(a)(l) of the Act.
"4. By ordering employees to remove all CB radi-
os from the trucks driven by its employee drivers at
its Brookville facility, the Respondent has engaged
in, and is engaging in, unfair practices within the
meaning of Section 8(a)(3) and (1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent,
Trumbull Asphalt Co., Inc., Brookville, Indiana, its
officers, agents, successors , and assigns, shall take
the action set forth in the said recommended Order,
as so modified:
1. Substitute the following for paragraph 1(a):
"(a) Discharging or otherwise discriminating
against any employee because he presents grievances
to us concerning the terms or conditions of his em-
ployment."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportu-
nity to give evidence, the National Labor Relations
Board has found that we violated the National Labor
Relations Act, and has ordered us to post this notice
and abide by the following:
WE WILL NOT coercively interrogate employees
with respect to their own or other employees'
union activities and desires.
WE WILL NOT threaten employees with dis-
charge or other reprisals if they engage in union
activities.
WE WILL NOT promise benefits to employees if
they refrain from engaging in union activities.
WE WILL NOT prohibit our employees from in-
stalling and utilizing CB radios in the trucks
driven by them provided that they secure all
necessary licenses and otherwise comply with all
lawful rules and regulations pertaining to such
radios.
WE WILL NOT discharge or otherwise discrimi-
nate against any employee because he presents
to us grievances concerning the terms or condi-
tions of his employment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of their rights under Section 7 of the Act.
WE WILL offer to Marvin P. Hamilton immedi-
ate and full reinstatement to his former job or, if
that job no longer exists, to a substantially
equivalent position, without prejudice to his se-
niority or other rights and privileges, and WE
WILL make him whole for any loss of pay he may
have suffered by reason of his discriminatory
termination.
TRUMBULL ASPHALT CO., INC.
DECISION
STATEMENT OF THE CASE
ROBERT COHN , Administrative Law Judge: This proceed-
ing, heard before me at Brookville, Indiana , on January 29,
30, and 31, 1975, with all parties present and represented
by counsel, involves a complaint issued 1 pursuant to Sec-
2 This is especially applicable in the circumstances of the instant case
where, as far as the record shows, there was no established grievance proce-
dure. In such cases, the employees must "speak for themselves as best they
[can]." N L.R.B. v. Washington Alununum Co, 370 U.S. 9. 14 (1962).
1 Dated January 15, 1975, based upon an original charge in Case
25-CA-6631 filed by the Charging Union on October 23, 1974 (amended
December 9, 1974). and upon an original charge in Case 25-CA-6791 filed
by the individual Charging Party on January 6, 1975.
TRUMBULL ASPHALT CO., INC.
tion 10(b) of the National Labor Relations Act, as amend-
ed (herein the Act), alleging that Trumbull Asphalt Co.,
Inc. (herein Company or Respondent), interfered with, re-
strained , and coerced its employees in the exercise of rights
guaranteed under Section 7 of the Act by engaging in cer-
tain conduct described more fully herein, including dis-
crimination against employees in order to discourage mem-
bership in and activities on behalf of Chauffeurs,
Teamsters, Warehousemen, and Helpers Local Union No.
135 affiliated with International Brotherhood of Team-
sters , Chauffeurs, Warehousemen and Helpers of America
(herein the Union), all in violation of Section 8(a)(1) and
(3) of the Act. By its duly filed answer, Respondent gener-
ally admitted the jurisdictional allegations of the com-
plaint, but denied the commission of any unfair labor prac-
tices?
At the close of the hearing oral argument was waived;
however, counsel for all parties filed helpful posthearing
briefs which have been duly considered. Upon the plead-
ings, stipulation of counsel , the evidence, including my ob-
servation of the demeanor of the witnesses ,3 and the entire
record in the case , I make the following:
FINDINGS OF FACT
1. COMMERCE
Respondent is, and has been at all times material, a cor-
poration engaged in the business of manufacture , sale, and
distribution of asphalt and related products. Its principal
office and place of business is located in Summit , Illinois,
with plants in various States of the United States including
the facility involved in this proceeding which is located in
Brookville , Indiana (herein the Brookville plant).
During the past year, a representative period, Respon-
dent, in the course and conduct of its business operations,
caused to be delivered to its Brookville plant from sources
2 At various stages in the proceeding, i.e, before , during, and subsequent
to the hearing counsel for Respondent have vigorously sought to introduce
into evidence material in support of their contention that, by engaging in
discriminatory practices among certain minority groups, the Charging
Union has violated certain Federal Civil Rights laws. During the hearing, an
interlocutory appeal was taken by Respondent from the ruling of the Ad-
ministrative Law Judge granting the Charging Union's petition to revoke
certain aubpenas calling for production of material pertaining to the compli-
ance of the Charging Party with such laws. (This ruling , as well as all other
rulings made by the Administrative Law Judge on this issue , was based
upon the ground that such material was not relevant to any issue extant-or
which could be properly raised by Respondent-in the present posture of
the proceeding ; i.e., the General Counsel has made no effort to amend the
complaint to allege a violation of Sec . 8(a)(5) of the Act. Even if he had
done so , the foregoing statement should not be construed as indicating that
the ruling would have necessarily been otherwise.)
On March 13 , 1975, the Board denied Respondent's request for special
permission to appeal such ruling without prejudice to Respondent 's right to
raise the matter again before the Board in any exceptions and briefs which
may be filed to the decision of the Administrative Law Judge in this pro-
ceeding.
Pursuant to the request of Respondent to have such interlocutory appeal
and the Board 's response thereto made part of the record herein, it is hereby
ordered that said interlocutory appeal be denominated as Resp . Exh 20 and
the Board 's Order be denominated as Resp . Exh. 21, and received in evi-
dence.
3 Cf. Bishop and Mako, Inc., d/b/a Walker's, 159 NLRB 1159, 1161
(1966).
799
outside the State of Indiana goods valued in excess of
$50,000. In a like period , Respondent sold and- shipped
products valued in excess of $50 ,000 to points located out-
side the State of Indiana.
I find , as Respondent admits , that it is now, and has
been at all times material , an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material , a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
During the spring of 1974,° Respondent employed at the
Brookville plant approximately eight production employ-
ees and five full-time truckdrivers.5 Respondent also em-
ployed two regular part-time truckdrivers: Elmer Hamilton
(brother of Marvin Hamilton) and Bud Bohner.6
It was the policy of the Company to utilize the services
of the regular, full-time drivers on a seniority basis; i.e., the
older drivers in point of service with the Company received
the better "runs." It was also a policy of the Company to
utilize the regular drivers prior to using the part-time driv-
ers. That is to say, the part-timers were used only in two
basic situations: (1) where the Company needed material
in an amount which the regular drivers could not, working
full time, fulfill; 7 and (2) where a regular driver is unable
to work because of sickness or other good reason.
At the Brookville plant, Respondent manufactured two
basic products: (1) asphalt materials used in roofing, etc.,
and (2) an automotive saturant used for deadening noise in
automobiles. For the manufacture of such products, Re-
spondent used two principal raw material sources: (1) Die-
go Oil which it received primarily if not solely from a refi-
nery in Hammond, Indiana (referred to in the record as the
"Chicago run") and (2) "flux" which apparently is another
type of oil which Respondent secured from other sources
primarily from a terminal on the Ohio River called the
"Boswell terminal."
The wages of the truckdrivers were based upon the num-
ber of trips they made per week (as distinguished from pay
based upon number of hours worked, although there would
be, of course, some correlation). Distances from the Brook-
ville plant were marked off in zones and the parties are
generally agreed that "the longer the trip the better the
pay." That is to say, a truckdriver would net more from a
long run, such as the "Chicago run," than performing dur-
All dates hereinafter refer to the calendar year 1974, unless otherwise
indicated.
5 The truckdrivers are the only employees directly involved in the instant
proceeding. They are, in order of seniority, Ray Miller, Gilbert Hensley,
Larry Miller (brother of Ray Miller), Marvin Hamilton, and Gilbert
Grubbs.
6 Bohner had, in the past, been a regular, full-time driver for the Compa-
ny, but had retired He was subsequently rehired on a part- time basis.
The number of hours a truckdriver is allowed to drive is limited by the
Interstate Commerce Commission to 10 hours per day
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing the same period of time a number of short runs such as
the "River run," i .e., a drive to the Boswell terminal on the
Ohio River. The parties are in general agreement that, in
the spring of 1974, the "Chicago run" was looked upon by
the drivers as the most desirable work and it was normally
assigned to the drivers with the most seniority.
B. The Union Campaign, and its Aftermath
It appears that in the spring of 1974, some of the truck-
drivers, being dissatisfied with some of the working condi-
tions of Respondent's Brookville plant, discussed unioniza-
tion.8 Sometime in May, Larry Miller contacted Pete King,
a representative of the Union, and advised him of the situ-
ation. As a result of that conversation, a meeting of the
interested truckdrivers was held at a truck stop in nearby
Harrison, Ohio, on June 5. At that meeting, union authori-
zation cards were distributed and the four employees who
attended signed cards.' The authorization cards were re-
turned to the union representative, on the basis of which a
petition was filed by the Union with the NLRB on or
about June 11,10 Following customary Board procedures, a
copy of the petition was mailed to the Company on the
same date, and was received by John Freitag, superinten-
dent of the Brookville plant, on or about June 12 or 13.
Freitag testified that the receipt of the copy of the peti-
tion, along with the Board's covering letter (G.C. Exh. 7),
constituted his first knowledge of the union activity among
the employees; that he thereafter asked Ray Miller if the
latter knew anything about such activities, and that Miller
responded, "Yes, that we were all for it." Freitag further
testified that he immediately telephoned Aikens Miller,
vice president of the Company, whose offices were in Sum-
mit, Illinois. The latter advised Freitag to mail him the
letter and "not to talk to nobody about this matter." How-
ever, the evidence shows that Freitag did, in fact, talk to
some of the truckdrivers following receipt of the letter, and
it is on the basis of some of these conversations that the
General Counsel alleges that Respondent interfered with,
restrained, and coerced employees in violation of Section
8(a)(1) of the Act.
C. Alleged Interference, Restraint, and Coercion
1. By John Freitag
Most of the conduct allegedly engaged in by an individ-
ual which was assertedly violative of Section 8(a)(1) of the
Act was attributable to John Freitag, the plant superinten-
dent. This individual, who had previously worked for Re-
spondent at its Medina, Ohio, plant, commenced work at
the Brookville facility in mid-1973. He acknowledged that
in January or February he advised an employee in Brook-
ville that Respondent, at the Medina facility, had dis-
9 It appears that the old manager of the plant (Boles ) died , and the Com-
pany , in 1973 , brought in the new management team of Freitag and Kleine.
The changes resulted in a deterioration of the working relationship between
management and the employees.
9 They were Ray Miller , Larry Miller , Gilbert Grubbs, and Marvin Ham-
ilton.
10 That case is docketed as 25 -RC-5719.
charged employees for attempting to bring in the Union
there.I I
Employee Larry Miller testified that one day in May, he
and Gilbert Hensley were at work at the "dump box" when
Hensley said that if the Company "Got too rough on us we
would go to the union." Freitag, who was present at the
time, responded that "If we did he would fire all of us." 12
I find the foregoing threat to be clearly coercive and inti-
midatory to the exercise of employee rights under Section 7
of the Act, and therefore violative of Section 8(a)(1) of the
Act.
Larry Miller also testified as to a conversation he had
with Freitag on the day the latter received the notification
from the National Labor Relations Board that the Union
had filed a petition. Miller testified that he was fueling his
truck when Freitag came over and told him that he had
received a letter from the Labor Board that the Union
wanted a vote, and that "There is going to be a union vote
here." Miller responded, "John, it is nothing personal
against you but we just feel that we would be better off
with the union." Miller then asked what Freitag thought
the Company would do if the Union was successful, to
which Freitag responded, "They would probably find out
who was in back of it and fire them, the one or two people,
whoever was in back of it at the time." I find, based upon
the credited testimony of Miller, the foregoing threat to be
violative of Section 8(a)(1) of the Act.13
Marvin Hamilton testified that on the day that Freitag
received the notification from the NLRB of the union peti-
tion, he was in Freitag's office on some business relating to
the availability of trips, when Freitag showed him the letter
and asked him if he knew anything about it. Hamilton
stated "No." 14 I find that this interrogation concerning
union activities, taking place in the sanctum of the
superintendent's office, without any assurance against re-
crimination, constitutes coercive interrogation violative of
Section 8(a)(1) of the Act.15
11 He explained that this had occurred prior to his employment at Medi-
na.
Since this statement occurred outside the Sec. 10(b) period, it is not al-
leged by the General Counsel as violative of Sec. 8(a)(1), but was only
submitted for the purpose of background evidence.
12 The foregoing finding is based upon the credited testimony of Miller
who impressed me as a candid and honest witness. Hensley was not called
as a witness by either party. Although Freitag denied making such a state-
ment, I do not believe that Miller was the kind of person who would fabri-
cate it particularly where he placed another employee there and could not
have known that the Company would not call that employee as a witness
against him . I also note that Miller was still an employee of Respondent at
the time of the hearing, and I have taken such fact into consideration in my
credibility findings. See Georgia Rug Milt, 131 NLRB 1304, 1305, fn. 2
(1961), enfd . as modified 308 F.2d 89 (C.A. 5, 1962); AstroSystems, Inc, 203
NLRB 49 (1973); Federal Envelope Company, 147 NLRB 1030, 1036 ( 1964).
13 As previously noted, Freitag acknowledged interrogating Miller about
the union activity shortly after he received the letter from the N.L.R.B.
Although he testified that shortly thereafter he contacted the vice president
of the Company who advised him not to say anything about the matter to
anyone , I believe that Freitag had certain conversations with employees,
one of whom was Miller, in order to ascertain just what the situation was. In
line with his previous statements concerning his own and the Company's
view toward union activities of its employees , I find that the statement
attributed to him by Miller has a definite ring of logic and plausibility
attached to it.
14 He explained at the hearing that he deliberately lied on this occasion in
order to protect the other drivers.
15 See N L.R B v. Cameo The, 340 F.2d 803 (C.A. 5, 1965); Bourne v.
TRUMBULL ASPHALT CO., INC.
On the same day, later in the afternoon , employee Elmer
Hamilton came into the "lab" (the place where the drivers
received -their assignments) to see how many "runs" he
had. Freitag was there and had the letter from the NLRB
with him . The latter asked Hamilton "Do you know any-
thing about this?" Hamilton replied, "What's that?" Frei-
tag responded "The union , the right to vote on the union."
Hamilton responded , "No sir, I don't." Freitag continued
"If I find out who started this-the guy or the guys-I will
get rid of them ...." 16 Freitag then went on to explain
why he did not like unions , and told Hamilton of a place
he used to work prior to his coming with the Respondent;
that a union represented the employees there but failed to
stand behind Freitag when the Company terminated him
presumably without cause.17
I find , based upon the credited testimony of Hamilton,
that the foregoing interrogation and threat constituted an
additional violation of Section 8(a)(1) of the Act.18
2. By Aikens Miller, Jr.
The complaint alleges that on or about August 1 the
above-named vice president of the Company promised em-
ployees certain benefits , including air-conditioning in their
trucks , if they refrained from becoming or remaining mem-
bers of the Union. The evidence shows that Aikens Miller
did, in fact, make a speech to the truckdrivers on July 31
for the apparent purposes of: (1) ascertaining what trig-
gered the union movement , and (2) attempting to persuade
the employees that the Company and the employees could
work out their differences better without a union than with
one. Ray Miller testified that in response to Aikens Miller's
question as to what triggered the union movement, he re-
plied that there was lack of communication with local
management and that the employees wanted better work-
ing conditions . In that connection , he mentioned better
N.L.R.B., 332 F .2d 47 (C.A. 2, 1964). 1 note that one of the factors consid-
ered by the courts in weighing the lawfulness of company interrogation of
employees is "truthfulness of the reply " I find it significant that Hamilton,
as well as the other truckdrivers , were well aware of the Company 's hostility
toward the Union , and this was one of the principal reasons for carrying on
such activities in secrecy , and was also no doubt responsible for the manner
in which Hamilton replied to Freitag's question.
i6 Testimony of Elmer Hamilton.
i7 In its brief, Respondent made several references to the fact that Freitag
was a former union member, from which it is argued that , therefore, his
sympathies would tend to fall on the Union 's side . However , Freitag's own
statement of his disenchantment with the Union for not supporting him
would seem to belie such argument.
is Freitag generally denied telling any of the drivers that if he found out
who started the Union he would get rid of them. He acknowledged having
a conversation with Hamilton about a week before the election (on August
2) in which he advised the latter of his dislike for the Union at his ( Freitag's)
prior employment because the Union did not support him in a grievance
which he had with management. However , I am convinced that , as noted
previously , Freitag made an extensive effort on the day he received the
letter from the NLRB to ascertain the strength of the union movement
among the truckdrivers, and I find that the conversation took place essen-
tially as Elmer Hamilton testified.
This conviction is further supported by the testimony of Ray Miller who
testified that about 8 to 10 days after he signed the card for the Union, he
was fueling his truck one morning when Freitag came out and asked him if
he knew anything about the drivers signing up for the Union , and who they
were . Miller responded , "Yes, we all did, John . We all signed up for it."
Freitag responded , "Okay, I didn't know," and turned and walked away.
801
seats in the trucks and air-conditioning. Both men testified
at the hearing that Aikens Miller stated that he could not
promise. the employees air-conditioning or better seats in
the trucks, or other benefits, but that if the Union was not
successful in the election he could come back and talk
about those things the following Saturday.19
Respondent argues, and I agree, that there is no evidence
in the record that Aikens Miller, at the meeting on July 31,
or at any other time, directly promised employees benefits
of any kind in return for their vote against the Union. In-
deed, Miller told the employees that he could not promise
them any benefits at that time, but did commit himself to
come back after the election (if there was no union in-
volved) and sit down and discuss those matters.20 -
Under these circumstances, including the context of un-
fair labor practices engaged in by Freitag hereinabove dis-
cussed, I cannot agree with Respondent that the Board's
recent decision in Uarco, Inc.21 disposes of this issue. In
Uarco a panel majority of the Board (one member dissent-
ing) found no violation of Section 8(a)(l) of the Act where
an employer held a series of meetings with employees at
which employee grievances and complaints were aired. The
majority reiterated the theory of violation that an employer
interferes with employee rights during an organizational
campaign where he solicits grievances with the implied
promise .to correct those inequities he discovers as a result
of the inquiries. "However, the Board went on to point out
that it was not the solicitation of grievances itself that is
coercive and violative of Section 8(a)(1), but the promise to
correct grievances or a concurrent interrogation or polling
about union sympathies that is unlawful; the solicitation of
grievances merely raises an inference that the employer is
making such a promise, which inference is rebuttable by
the employer."
In Uarco, as in the instant case, the employer's represen-
tative at the meeting made an express "no promise" re-
sponse to the employees' complaints. The Board majority
held that "In the circumstances of that case" this response
disspelled "any logical anticipation of improved conditions
which the employees otherwise might have had."22 The Board
made particular reference to the fact that the record in
Uarco was "Devoid of any showing of union animus on the
part of Respondent, and there is not one scintilla of evi-
i9 The election was scheduled to be held on Saturday, August 2, which
was 2 days subsequent to the July 31 meeting. The Saturday of the following
week would have been August 9
20 Miller's testimony on this point is as follows-
I told them that I would certainly find out from the leasing compa-
nies why the new equipment had not had air conditioning on it I said
'to go any farther to tell you that I am going to put air conditioners on
or anything like that I can't do that ' I said 'I can't promise you or tell
you that I will put air conditioners on at this moment'
• a a
BY MR . LEDERER.
Q. Do you remember any other questions that arose in this meeting?
A Yes. There was a question concerning one of the rates or the pay
zones . I told them at that time I could not again discuss that with them.
I said that 'if after the election there is no union involved I can come
back and sit down and we can talk about these things Under the
circumstances the way it is right now I cannot discuss it.'
2i 216 NLRB No. 2 (1974)
22 216 NLRB No. 2
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dence that Respondent 's preelection activities were con-
ducted in the context of other unfair labor practices."
Here, unlike Uarco, the meeting did take place in the
backdrop of the commission of serious unfair labor prac-
tices . Equally important , the "no promise" statement of
Aikens Miller was made in a context which told the em-
ployees, in effect, that he was presently unable to make any
promises , but assuming there was no union in the picture a
week from the election, he would come back to Brookville
and "talk about these things."
Under these circumstances , it would seem highly unreal-
istic to equate the "no promise" response in this case to
that in Uarco. Certainly, the employees here could reason-
ably anticipate that their employer would listen sympathet-
ically to their grievances, and in all probability do some-
thing to alleviate them in a subsequent meeting
conditioned upon their rejection of the Union. According-
ly, I find that the implied promises made by Aikens Miller
at the July 31 meeting constituted interference , restraint,
and coercion in violation of Section 8(a)(1) of the Act 23
D. The Alleged Discrimination
The complaint alleges that since on or about April 24,
Respondent discriminated against its employees in viola-
tion of Section 8(a)(3) of the Act by engaging in certain
described conduct 24 We come now to a consideration of
the evidence in support of these contentions.
1. The discontinuance of the "Chicago run"
Within several weeks following the receipt of the notifi-
cation that the Union had filed a petition for an election,
Respondent decided to-and did-eliminate the "Chicago
run" for the Brookville truckdrivers. It substituted, for that
source of supply, transportation by railroad tank car.
Counsel for the General Counsel noting the timing of such
exchange of means of transportation , argues that it was a
retaliatory measure instituted by Respondent to dissuade
the employees from their adherence to the Union. Respon-
dent urges that it was prompted by purely economic mo-
tives.
The evidence shows that Respondent had utilized rail
service as a source of supply in years past, but that such
was discontinued approximately 4 years ago because the
Company had changed sources of supply. Aikens Miller
testified that approximately 2 years ago he was informed
that rail service to Brookville had been discontinued alto-
gether. However, upon his visit to Brookville on June 21
(which he testified was occasioned primarily because of a
pollution problem), he noticed that there was a boxcar on
his neighbor's railroad siding. He inquired of Plant Manag-
er Kleine how it was that such a boxcar was there in view
of the discontinuance of rail service, and Kleine replied
that there was service but that it was slow and could handle
only certain size cars . When he returned to Chicago, Ai-
23 See Reliance Electric Company, 191 NLRB 44 (1971)
24 The date set forth in the complaint must have been an inadvertancy,
since the union activity did not commence until May and there is no evi-
dence that Respondent became aware of it until on or about June 13
kens Miller checked into the matter and ascertained that
shipping by tank car was feasible and cost $2 a ton less
than shipping by truck. Accordingly, he instructed the traf-
fic department of Respondent to start the tank cars imme-
diately. As of the time of the hearing, Respondent was still
utilizing tank cars as the means of transportation of its
supply of Diego oil from its Hammond, Indiana, source of
supply.
In early August, Respondent transferred two of its
trucks from its Brookville plant to its Summit , Illinois,
plant because it had commenced using at that location oil
from a new source of supply-Robinson, Illinois 25 The
trucks were secured from the Brookville facility because of
their relative lack of use apparently due to the discontin-
uance of the Chicago run as well as the fact that during the
summer months the manufacture of automotive saturant is
diminished because of the model changeover in automobile
production. However, the Company determined, in Au-
gust, that it could profitably utilize the Robinson oil at
Brookville, and deliveries were commenced there in Sep-
tember. Deliveries were made by a contract carrier called
Refiners which was utilized because of the presence of the
Brookville trucks in Summit. The Refiners company con-
tinued to deliver the Robinson oil to Brookville until Janu-
ary 1975 at which time the contract apparently was termi-
nated and the Brookville drivers commenced hauling the
Robinson oil.
It is true that the timing of the discontinuance of the
Chicago run renders the motive suspicious in view of the
evidence that Respondent clearly desired to run its Brook-
ville plant without the presence of the Union there. Howev-
er, there is scant evidence in refutation of Respondent's
assertion that the foregoing changes in sources of supply
and the means of transporting them were motivated by
economic circumstances. 6 Also, while I have found exten-
sive violations of Section 8(a)(1) committed by the plant
superintendent, I note the lack of any threats by higher
supervision with respect to changes in source of means of
supply. Indeed, on one occasion in June, Plant Manager
Kleine told Ray Miller that the Company had discontinued
the Chicago run but that it had no bearing on the Union
whatsoever-that they were "going to get in by rail [be-
cause] it is cheaper for us to bring it in by rail than it is by
truck." 27
Accordingly, after a consideration of all the evidence in
the record, I find that the General Counsel has failed to
sustain this allegation by a preponderance of the evidence
and will therefore recommend that the complaint, to that
extent, be dismissed.
2. The removal of the CB-(Citizen Band) radios
In late winter or early spring, four of the five regular
25 All of Respondent 's trucks are leased from a company known as HMT
Leasing, on a 3- to 5-year basis. The tank car trailers must be specifically
constructed to withstand the heat of molten asphalt, so that their availabili-
ty is limited and they must be ordered months in advance.
26 Counsel for the General Counsel sought to prove that there was some
additional cost involved because the railroad tank cars had to be "steamed
out" on occasion while truck tank cars did not . However, Respondent
showed that any cost involved in this procedure was negligible.
27 Testimony of Ray Miller.
TRUMBULL ASPHALT CO., INC.
truckdrivers installed CB -radios in their trucks (the radios
were the employee 's personal property, purchased individ-
ually by each employee). Each employee installed his radio
in the truck which he customarily drove , without seeking or
securing permission from Respondent 28 Freitag testified
that he first learned of the radios in April when he noticed
the antennas on the trucks , but he took no action at that
time . He further testified that he discussed the matter with
Kleine in May, but still no action was taken . It appears
that the matter of the CB-radios was discussed among
Messrs . Kleine, Aikens Miller, and Freitag when Aikens
Miller visited the plant on June 21 , but still nothing was
said to the employees concerning the matter . Following the
June 21 meeting , Aikens Miller returned to his office and
thereafter took a vacation until on or about July 5. It was
not until he returned from that vacation that he asked his
safety director, a Mr. Short, to check into the legality of the
employees having CB-radios in the trucks . About a week
later he was informed by the safety director that having
such radios in the trucks without proper authority or licen-
ses from the Federal Communications Commission was il-
legal, but that with proper licenses the radios themselves
would be legal. As a result of this information , plus being
advised by Kleine of a newspaper article in which it was
stated that CB-radios were being used to break laws and
speed traps , Miller made the decision that the radios
should be removed . However, he determined that such an
order if given immediately prior to the election would have
an upsetting effect , and so delayed the order until the latter
part of August.
In its brief, Respondent asserts that its motive in or-
dering the removal of the CB-radios was "to further legiti-
mate business interests in ordering their removal (lower
speeds, less likelihood of accidents ), and to avoid adverse
FCC reaction against Respondent and the effect of the
order was not one that was inherenty (sic) destructive of
employee exercise of Section 7 rights , or even mildly im-
pinged on the exercise of those rights." 29
It is difficult to fully credit the veracity of this statement
for several reasons : ( 1) the lapse of some 3 months between
the learning of the existence of such radios by Respondent
and the decision to remove them . Certainly if Respondent
was as concerned about the existence of the radios as it
would have us believe , it would not have waited so long to
take some action to either regulate or remove them; (2) it
appears from Aikens Miller's own testimony that the radi-
os are not illegal per se, but only if unlicensed . Yet, Re-
spondent did not warn the employees to that effect, and
made no condition in its order of removal that the employ-
ees could retain the radios upon securing proper licenses;
(3) there is no evidence in the record of any problems or
adverse incidents accruing to Respondent resulting from
the existence of the radios ; and (4) finally, Respondent
apparently did not order the radios removed from its
2e The apparent reason for the installation of the radios was to enable the
drivers to make their trips in a shorter space of time . This because the radios
were used for communication among truckdrivers to advise each other of
traffic tie-ups, speed traps, and other such impediments . In addition, it is
well known that the radios provide a means of combatting loneliness for
lone hauls of over-the-road truckdrivers.
2 Resp . br., p. 26.
803
trucks at the Medina, Ohio, facility 30
In sum, I find that Respondent's defense on this aspect
of the case does not withstand scrutiny, and therefore find
and conclude that the order for removal of the CB-radios
in August was in retaliation for the employees' protected
activities, and therefore discriminatory and coercive in vio-
lation of Section 8(a)(3) and (1) of the Act.
3. The use of part-time employees in lieu of full-time
drivers
The complaint alleges, in essence , that following receipt
of notification that the truckdrivers were engaged in an
organizational campaign, Respondent "utilized part-time
employees in lieu of full-time drivers." I find that the evi-
dence does not support this contention.
As previously noted, it was always the policy of Respon-
dent to utilize the services of the regular, full-time drivers
reserving the use of the two part-time drivers to situations
where either of the following situations existed: (1) the full-
time drivers were unable to work because of illness, emer-
gency, or they had already worked the time allowed by
ICC regulations; or (2) Respondent required supplies ex-
ceeding the capability of the full-time drivers to fulfill.
On the basis of the record evidence,31 it is apparent that
this contention of the General Counsel has not been prov-
en by substantial evidence. Thus the records show that,
during 1974, most of the runs assigned to part-time em-
ployee Bohner were made during the period in April and
May. It is true that the other part-time employee, Elmer
Hamilton, worked a substantial number of hours during
August and September, but the record also shows that
Hamilton normally came to work in the late afternoon, and
performed his duties after the full-time drivers had com-
pleted their runs for the day. Accordingly, the evidence is
not substantial that Elmer Hamilton was utilized by Re-
spondent to decrease the work opportunities of the regular
drivers. I shall therefore recommend that this allegation of
the complaint be dismissed.
4. The alleged discriminatory discharge of Marvin
Hamilton
Hamilton was employed by the Company as a truckdriv-
er in September, 1973, and worked continuously until his
discharge on August 7. Respondent asserts that the reason
for the firing of Hamilton was because of his insubordina-
tion to Plant Superintendent Freitag that day. Counsel for
the General Counsel and the Union argue, on the other
hand, that the assigned reason was a pretext and that the
real reason was because of Hamilton's union and/or con-
certed activities protected by Section 7 of the Act. Since
the issue revolves around the Company's policy and prac-
tices respecting assignment of work, a review of such mat-
ters seems appropriate.
As previously noted, the Company recognized seniority
among the truckdrivers as respects the assignment of work
and its desirability. That is to say, the most senior of the
30 See testimony of Ray Miller to the effect that on a recent trip to Medi-
na he noticed the antennas of such radios on the Company's trucks there.
31 See, e .g, G.C Exh . 8 and Resp. Exh 17.
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
truckdrivers in terms of length of service received the more
desirable runs. Prior to or about February, the system was
that the older drivers received their first assignment of the
day based upon this system, but that the first driver back at
the plant following the first run then received the second
assignment according to the system, and so on. In Febru-
ary, as a result of a complaint of the drivers to Kleine, the
system was changed to one utilizing clipboards. Under the
clipboard system, the drivers were assigned all of their runs
for the following day by means of a clipboard which was
hung in the "lab" (dispatch room). Each driver had a clip-
board, and his assignment for the following day was posted
by Freitag in the afternoon of the preceding day. This
method of assignment of runs was in effect at all times
material subsequent to February.
As respects union and/or concerted activities, the record
shows, as previously pointed out, that Hamilton had signed
a union card on June 5; that Freitag had interrogated him
concerning the union matter on or about June 13, and
Hamilton denied knowledge of it; however, Ray Miller had
advised Freitag that all of the truckdrivers had signed for
it. At the NLRB election, which was held on August 2, the
Union won by an overwhelming majority-only one truck-
driver voted against union representation.
The record shows that several days following the elec-
tion (about 3 days prior to the discharge), Marvin Hamil-
ton noticed on the clipboards that he had been assigned a
better run than Larry Miller. Hamilton, feeling that this
was not proper under the system extant in the plant, called
it to the attention of Freitag, advising the latter that the run
should be switched since Miller had more seniority than
he. Freitag reacted rather angrily, advising Hamilton that
he (Freitag) was the supervisor and that he would assign
the runs the way he wanted to.32
At about this time, as previously noted, the Company
was operating six trucks-four Fords, a Dodge, and an
International. Hamilton normally drove the Dodge. On
August 6, Hamilton drove the Dodge truck on his normal
runs, but when he returned to the plant he told him to take
the International truck the following morning. Hamilton
checked the clipboards and found that he was assigned two
runs to the River the following day. He testified that there
were clipboards up for all of the other regular drivers, but
there was no clipboard up for Bud Bohner, the part-time
driver.
The following day, August 7, he made his first run to the
River returning to the plant around 9 a.m. While his truck
was being unloaded Hamilton went into the lab where he
saw a clipboard for Bud Bohner indicating that the latter
was assigned two runs to the River. Hamilton became up-
set at this point because a regular driver could normally
handle 3 or 4 runs to the River during a normal working
day. Also, the record shows that Bohner normally drove
the International truck, and since the Dodge was inopera-
tive that day Bohner would have had to use the Interna-
tional in order to complete his assignment.
Hamilton proceeded to Freitag's office. On the way, he
passed Bohner , who was sitting in the outer office, and
32 However, the switch in loads was made.
exchanged hello's According to Hamilton's testimony he
told Freitag that "if he (Bohner) is that near broke let him
have my other load too," and left the office.
Freitag's version of the incident that morning is some-
what at variance with that of Hamilton. Freitag testified
that he had heard Hamilton come into the office at about 9
a.m. on August 7 and heard him exchange hello's with
Bohner-that this was after Hamilton had finished his sec-
ond load.33 According to Freitag, Hamilton came into the
office and appeared upset. When Freitag asked him if he
was sick Hamilton responded "I am going home" and
started out of the door. Freitag asked him what was wrong
to which Hamilton replied that Freitag was giving the
loads to part-time drivers and "you are cutting me out."
Freitag then observed Hamilton proceed into the parking
lot and get into his car and start to pull away when he
(Hamilton) apparently had a change of mind, got out of his
car and into his truck; that he pulled the truck into the
parking lot, returned to his car, and drove away. According
to Freitag, no assignments had been posted that day for the
part-time drivers; that Bohner had come in that morning
and asked for work but that Freitag had orally advised him
that when a truck was available he (Bohner) would have
some runs 34
Freitag then contacted Kleine by telephone and told him
what had occurred. Kleine said that he would call Freitag
back in a few minutes, and did so. In that telephone con-
versation, Kleine advised Freitag that Hamilton's conduct
clearly constituted insubordination, and to let him go.
On the afternoon of August 7, Freitag instructed the of-
fice girl to "try and get in touch with Hamilton and find
out what was going on"; however, according to Freitag,
she was apparently unable to contact Marvin Hamilton
that day. 35 Marvin Hamilton testified that he
called the plant about 3 o'clock that afternoon and spoke
to Carolyn (one of the secretaries) at the Company, to in-
quire what was scheduled for the next day. She told him
that "they had only one run and the rest of them was to the
River." 3
Later in the afternoon of August 7 Freitag saw Elmer
Hamilton at the "lab," and advised the latter that he (Frei-
tag) had fired his brother that day. When Elmer Hamilton
later went home, he called his brother (Marvin) and asked
the latter whether he knew that he was fired. Marvin said
that he did not, and Elmer told Marvin of his conversation
with Freitag.
The next day, August 8, Marvin Hamilton went to the
plant in the morning to see whether or not there were any
runs posted for him. There were not, and he returned
home. Later in the afternoon he went back to the plant and
33 Freitag asserted that Hamilton had been assigned three runs that day-
one to Phillip -Carey ( in Cincinnati ) and two River runs.
34 Bohner was not called as a witness at the hearing, although it was not
shown that he was unavailable His testimony would have, no doubt , assist-
ed materially in resolving credibility. Without it, I am inclined to credit
Hamilton to the extent that his version differs from Freitag In addition to
demeanor considerations , I note the corroborative testimony of Gilbert
Grubbs who stated that he recalled that on the afternoon of August 6 he
observed the clipboard reflecting that Hamilton had two River runs sched-
uled the following day-the same as Grubbs.
35 Testimony of Freitag. None of the office personnel were called as wit-
nesses.
"Testimony of Marvin Hamilton
TRUMBULL ASPHALT CO., INC.
talked with Ray Miller and Grubbs. As a result of that
conversation , Ray Miller talked to Freitag, and told the
latter that Freitag should either tell Marvin Hamilton that
he was fired or put him back to work. Freitag agreed, went
to the office and secured Marvin Hamilton's check, gave it
to Marvin Hamilton, and advised him at that time that he
was fired . The next day (Friday, August 9) Marvin Hamil-
ton went to the plant to secure his final check . It was at
that time that Freitag advised Hamilton that the latter had
been discharged for insubordination , to which Hamilton
replied, "It has been nice knowing you and I hope to see
you in heaven." 37
Analysis and Concluding Findings
In my view counsel for the General Counsel proved a
prima facie case of discrimination by showing that Marvin
Hamilton had been a regular employee of Respondent for
a substantial length of time , and that there was nothing in
his employment record to indicate that he was other than
an exemplary employee as far as his production and con-
duct was concerned; that he had, shortly before his termi-
nation, become a participant in concerted activities pro-
tected by the Act, to which Respondent was concededly
opposed-indeed, the record supports the finding that the
immediate supervisor of Marvin Hamilton was so vigor-
ously opposed to such activities that he engaged in sub-
stantial unfair labor practices himself; that thereafter
Hamilton was discharged under circumstances which, the
record shows, were at other times condoned. In this pos-
ture, the burden shifts to the employer "to establish that he
was motivated by legitimate objectives since proof of moti-
vation is most accessible to him." 38
As previously indicated, Respondent's defense is predi-
cated upon Marvin Hamilton's asserted insubordination,
i.e., his refusal to "pull a load"; that there is no substanial
evidence that Respondent was aware that Marvin Hamil-
ton was a participant in the Union's organizational activi-
ties ; and that extenuating circumstances existed in other
instances where disciplinary action was not imposed for
employees engaging in conduct similar to that for which
Marvin Hamilton was discharged. Indeed, Respondent
would point to the case of Gilbert Grubbs whose union
activities were similar to that of Marvin Hamilton, and
who failed or refused to "pull a load" a short time follow-
ing the incident involving Marvin Hamilton , but Grubbs
was not disciplined. We come now to an examination of
the evidence involving these matters.
The record testimony reflects that it was not an unheard-
of circumstance for a truck driver in Respondent's employ
to refuse to "pull a load." Employees Marvin Hamilton,
Elmer Hamilton, and Gilbert Grubbs all testified that they
had, in the past, refused to pull a load for one reason or
another and never had any disciplinary action imposed
upon them as a consequence of such conduct. Superinten-
dent Freitag acknowledged that he did not consider a
truckdriver's refusal to pull a load a sufficient cause for
disciplinary action if the driver stated an excuse which he
77 Testimony of Freitag.
38 N. L. R. B. v. Great Dane Trailers , Inc., 388 U.S. 26, 33-34 (1967).
805
(Freitag) considered adequate-such as being sick or tired.
However this is contradicted by the testimony of Gilbert
Grubbs, whom I credit, that in mid-May he refused to pull
a load to Cincinnati because Freitag had assigned a Fort
Wayne, Indiana, trip to Bohner while assigning the Cincin-
nati trip to Grubbs. When Grubbs complained to Freitag
about it, the latter responded that Bohner was the oldest
seniority man in the plant, to which Grubbs replied that
Bohner's seniority did not count because he was a part-
time man . As a result Grubbs went home, but was never
reprimanded for not pulling the load. A second incident
occurred in August, about a week following the election.
According to Freitag's testimony, Grubbs complained to
him at that time because Freitag had assigned a trip 7 to
Bohner while Grubbs was assigned a trip 5 (a trip 7 is a
longer run than a trip 5). Although Grubbs complained to
Freitag about the matter, Freitag decided to "let everything
stand as it was," and Grubbs went home. Freitag took no
disciplinary action because, as he testified, "He (Grubbs)
did not pull a roofers flux and there wasn't any great need
for it. It didn't bother me." 39
Freitag further testified as to why he disciplined Marvin
Hamilton but did not discipline Grubbs in view of the sim-
ilarity of the incidents involving the two men:
Q. Why did you not fire or otherwise discipline Mr.
Grubb and you did fire Hamilton?
A. It was the nature of the reason that Marvin
Hamilton didn't pull his load. It was his attitude to-
ward it.
Q. Tell exactly the difference so the Law Judge and
the Board understand.
A. Marvin was dismissed for his just the way he
refused to pull his load.
Q. What was that?
A. I mean he just accused me of giving that to part-
time drivers, giving all his loads to part-time drivers,
and Gilbert's refusal was there is no big thing about it.
Q. Can you be more specific?
A. That's what I was trying to think. His actions
just weren't the same as Marvin had.
Assuming the veracity of the foregoing testimony,40 one
may reasonably inquire-in view of the similarity of the
incidents-what the distinguishing factor was which
39 It is not contended that Marvin Hamilton's conduct damaged or incon-
venienced Respondent in any way since, presumably , Bohner pulled his
remaining load that day.
40 This qualifying phrase is utilized in view of Freitag's testimony, above
adverted to, in which he testified that no disciplinary action was imposed on
other occasions of refusal to pull loads because the drivers had proper rea-
sonable excuses.
Q Do you remember any instances during 1974 in which any drivers
other than Marvin Hamilton refused to pull loads9
A Not without a good excuse.
Q Do you remember any who refused to pull loads and give excuses
therefor?
A. Yes
Q. Tell any that you remember indicating the date and the circum-
stances each time, and go slowly so that you remember any that you
think occurred?
A I remember Larry Miller he told me he was tired and wanted to
know if he could go home and not pull his extra load. I said fine. Ray,
the same thing He was tired He had-his daughter or daughter-in-law
Continued
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prompted Freitag to terminate Hamilton and not Grubbs.
Freitag's only explanation was that Grubbs "actions just
weren't the same as Marvin had ." Since Freitag acknowl-
edged that Hamilton had never uttered a "curse word or
unpleasant word" to him under any circumstances, one
must look to other events or circumstances in an effort to
ascertain the distinguishing factor . In my judgment, the
answer is reflected in the record by the incident which oc-
curred only a couple of days prior to the discharge, and
which involved a questioning by Marvin Hamilton of
Freitag's supervisory authority as related to the Company's
longstanding policy of making truckdrivers' assignments
based upon seniority. As previously related, Marvin Ham-
ilton, on that occasion, advised Freitag that the latter
shouldn't have given him (Hamilton) a better run than Lar-
ry Miller because Miller was the most senior man and de-
served the better run . Freitag responded , "I am the supervi-
sor here and I will put it where I want to-any runs I give
to the drivers."
The Charging Union argues that, on the basis of this
incident, Freitag determined to set up the circumstances
which would provide him a basis for dicharging Marvin
Hamilton . Although there is some basis in the record to
sustain this theory, i.e., (1) the assignment of two runs to
Bohner although all of the full-time, regular drivers did not
have full work assignments (Marvin Hamilton only had
two runs assigned to him on August 7), and (2) contrary to
his testimony, Freitag had ample time following Marvin
Hamilton 's leaving of Freitag's office on August 7 to warn
him of disciplinary action should he leave the premises
since the record shows that Hamilton did not leave imme-
diately but rather stopped his car and parked the truck
prior to leaving the premises , providing Freitag ample time
for him to contact Hamilton and advise him of any con-
templated disciplinary action , I believe it sufficient to find,
as I do , that Freitag resented Hamilton's questioning of
Freitag's supervisory authority in the manner set forth;
that he believed such conduct to be a corollary and an
exemplification of Marvin Hamilton 's participation in the
union or concerted activities of the truckdrivers to which
Freitag was unalterably opposed. Thus, I find and con-
clude that the discharge was prompted, "at least in part" 41
by his participating in union or concerted activities.
had a baby and she was having trouble with and he had taken off early
for that . That was a good excuse . I had no objection to that.
Ma. Pumiso ' Could the witness be asked to define approximately
when these occurrences happened so that we won't have to go over that
at a later time?
BY Ma . Leoaaea:
Q. Yes, please try to tell us as near as you can when this happened.
A. Larry, his was in July; Ray's was in May or June ; in August Gil
Hensley he took off early . He had to go early to go see his parents.
Q. Did he come to you at that time"
A. Yes.
Q. Did you give him permission"
A. Yes
Q. Anything else?
A. I can 't think of any now that I recall.
41 Breaux Mart, Inc., 217 NLRB No. 56 ( 1975), see also N L R. B. v. Great
Eastern Color Lithographic Corp, 309 F 2d 352, 355 (C.A. 2, 1962 ), cert.
denied 373 U.S. 950 ; N L R.B. v Hanes Hoisery Division, Hanes Corp, 413
F.2d 457, 458 (C.A 4, 1969). I find a lack of substantial evidence in the
record to prove the remaining allegation of paragraph 6(e) of the complaint
Upon the basis of the foregoing findings of fact and the
entire record , I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By terminating the employment of Marvin P. Hamil-
ton because he engaged in union or concerted activities
protected by the Act, and by ordering employees to remove
all CB-radios from the trucks driven by its employee driv-
ers at the Brookville facility, Respondent has engaged in,
and is engaging in, unfair labor practices within the mean-
ing of Section 8 (a)(3) and (1) of the Act.
4. By coercively interrogating employees concerning
their own and other employees' union membership and ac-
tivities, by threatening employees with discharge or other
reprisals if they became or remained members of the
Union, or gave any assistance or support to it, and by
promising employees benefits if they refrained from be-
coming or remaining members of the Union, or giving any
assistance or support to it , Respondent engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(a)(1) and (3) of the
Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act.
Having found that Respondent discriminated against
Marvin P. Hamilton in the manner set forth above, I shall
recommend that the Respondent be ordered to offer him
immediate reinstatement to his former or 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. Backpay shall be computed in
accordance with the formula prescribed by the Board in
F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
Having found that Respondent ordered the removal of
the CB-radios from its trucks for discriminatory reasons, I
shall recommend that Respondent be directed to rescind
such order and to allow the employees to install and utilize
such radios provided that they secure all necessary licenses
and comply with all lawfully promulgated rules and regula-
tions pertaining thereto.
The serious and pervasive nature of the unfair labor
practices committed, including a discriminatory termina-
to the effect that "Marvin Hamilton was demoted to a position of employ-
ment wherein he earned less wages and was thereby forced by Respondent
to refuse the lesser amount of work offered" and will recommend that the
complaint be dismissed to that extent.
TRUMBULL ASPHALT CO., INC.
tion , indicate a hostility to the purposes of the Act. I shall
therefore recommend that Respondent be ordered to cease
and desist from in any manner infringing upon the rights
guaranteed to its employees by Section 7 of the Act 42
Upon the basis of the entire record , the findings of fact,
the conclusions of law, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 43
The Respondent, Trumball Asphalt Co., Inc., Brookville,
Indiana , its officers , agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee in regard to his hire or tenure of employment or
any term or condition of employment in order to discour-
age membership in Chauffeurs , Teamsters , Warehousemen
and Helpers Local Union No. 135 affiliated with Interna-
tional Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America, or any other labor organiza-
tion.
(b) Ordering or directing that employees cease installing
or utilizing CB-radios in the trucks driven by them, provid-
ed that said employees secure all necessary licenses or per-
mits pertaining thereto, and otherwise comply with all law-
fully promulgated rules and regulations applicable to such
installation and use of such radios.
(c) Coercively interrogating its employees about their
own or other employees ' union membership and activities.
(d) Threatening employees with discharge, or other eco-
nomic reprisals, if they become or remain members of the
above-named Union , or continue to engage in activities in
support of the above-named Union.
(e) Promising employees benefits to dissuade them from
42 Entwistle Manufacturing Company, 23 NLRB 1058 (1940), enfd. as mod-
ified 120 F.2d 532 (C.A. 4, 1941)).
03 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions and Order , and all objections thereto shall be
deemed waived for all purposes.
807
becoming or remaining members of the above-named
Union, or engaging in activities in support of the above-
named Union.
(f) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
by the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Make whole Marvin P. Hamilton, in the manner set
forth in the section entitled "The Remedy," for any loss of
earnings suffered by reason of the discrimination against
him.
(b) Preserve and, upon request, make available to the
Board or its agent for examination and copying all payroll
records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary
to analyze the amount of backpay due under the terms of
this Order.
(c) Rescind the order of August 1974 prohibiting the use
of CB-radios in the trucks driven by employees at the
Brookville facility.
(d) Post at its premises in Brookville, Indiana, copies of
the attached notice marked "Appendix." 44 Copies of said
notice, on forms provided by the Regional Director for
Region 25 after being duly signed by Respondent's author-
ized representative, shall be posted by it immediately after
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. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(e) Notify the said Regional Director, in writing, within
20 days from the date of this Order, what steps Respondent
has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it here-
by is, dismissed insofar as it alleges unfair labor practices
not specifically found herein.
44 In the event that the Board 's Order is enforced by a Judgment of the
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."