Wagner Transportation Co.

National Labor Relations Board - Board Decisions

Dec 6, 1954

110 N.L.R.B. 1179 (N.L.R.B. 1954)

WAGNER TRANSPORTATION COMPANY 1179
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. Thereafter, the Respondent filed ex-
ceptions to the Intermediate Report and a supporting brief.
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
Intermediate Report, the exceptions and brief, and the entire record
in the case , and finds merit in the Respondent's exceptions.
In accordance with the Board's previous determination in the
representation case in which the Union was certified,' the Trial
Examiner recommended that the Board should assert jurisdiction
herein. The Respondent contends, among other things, that the Board
should decline jurisdiction because it is purely a local operation.
In the representation case, a majority of the Board followed the
then prevailing policy and assumed jurisdiction over the Respond-
ent as a franchised Plymouth and Dodge automobile dealer. Recently,
the Board has considered this question and concluded that it will not
effectuate the policies of the Act to assert jurisdiction over an auto-
mobile dealer solely because it operates under a franchise from a
national enterprise but that it will take jurisdiction if the automobile
dealer satisfies some other criterion of the Board's revised jurisdic-
tional plan.' As the Respondent is an independent retail establishment
which neither makes direct out-of-State sales in the amount of
$100,000 per year, nor purchases materials in the amount of $1,000,000
a year coming directly from outside the State or in the amount of
$2,000,000 coming indirectly from outside the State,' we find that it
will-not effectuate the policies of the Act to exercise jurisdiction herein.
Accordingly, we will dismiss the complaint in its entirety, without
passing on any other question raised by the Respondent.
[The Board dismissed the complaint.]
i Case No. 1-RC-3395, 107 NLRB 1499.
'William T . Wilson and Mabel J. Wilson, a Partnership, d/b/a Wilson Oldsmobile, 110
NLRB 534. Member Murdock, who dissented in that case , considers himself bound by the
majority's decision therein.
3 William T. Wilson and Mabel J. Wilson, a Pa, tnershsp, d/b/a Wilson Oldsmobile,
supra, and J. R. Knott and Hugh H. Hogue d/b/a Hogue and Knott Supermarkets, 110
NLRB 543. Members Murdock and Peterson, who dissented in the latter case , consider
themselves bound by the majority' s decision therein.
ROSCOE WAGNER D/B/A WAGNER TRANSPORTATION COMPANY and GEN-
ERAL TEAMSTERS , WAREHOUSEMEN AND HELPERS UNION, LOCAL No.
483, AFL. Case No. 19-CA-977. December 6, 1954
Decision and Order
On August 23, 1954, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled proceeding, finding that the
110 NLRB No. 192.
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in certain other unfair labor prac-
tices and recommended that the complaint be dismissed in that respect.
Thereafter, the Respondent filed exceptions to the Intermediate Re-
port and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and brief, and the entire record in this
case, and hereby adopts the findings,' conclusions, and- recommenda-
tions of the Trial Examiner with the following modifications.
1. We concur in the Trial Examiner's findings that the Respondent
violated Section 8 (a) (1) of the Act by interrogation, threats, and
suggestion of surveillance of its employees' protected activities.
2. The Trial Examiner found that the Respondent had discrimina-
torily discharged Cecil Weyer. While we concur in the result reached
by the Trial Examiner, we do so for different reasons.
As set forth more fully in the Intermediate Report, Roger Wagner
learned on February 6, 1954, that the Union had commenced organiz-
ing the Respondent's employees. On February 16, Roger Wagner
interrogated certain employees, including Weyer, as to "how are you
and the Union doing?" and "I hear you fellows are organized." When
Roger Wagner inquired if Weyer had not in fact signed an applica-
tion card for the Union, Weyer answered that there was no need for
him to do so in view of the extensive period of his membership in that
labor organization. At that juncture, Roscoe Wagner, brandishing a
piece of paper, told Weyer that Weyer was a liar because "I can tell
you right where you signed this application and the day and every-
thing, all about it." Advancing in a menacing manner and threaten-
ing to strike Weyer, Roscoe Wagner announced that he did not "want
to talk to a Communist," that "You are going to resign," and "I don't
want no union man around here" because "They are just nothing but
a bunch of Communists." Turning to Roger Wagner, Roscoe Wagner
instructed him to prepare Weyer's "resignation papers." When
Roger Wagner returned with the papers drawn, Weyer inquired as to
how the Wagners found out about his union membership. Roger
Wagner refused to divulge this information, but stated "You know
how Roscoe feels about the union, you know what happened to Dick
'Although the Trial Examiner detailed in his Intermediate Report the jurisdictional
facts concerning the impact of the Respondent 's operations upon interstate commerce, he
did not find that the Respondent was engaged in commerce within the meaning of the
Act. We so find.
WAGNER TRANSPORTATION COMPANY 1181
Gear and Bob Sauers and some more of them." Weyer accepted the
resignation papers and left the Respondent's premises.
In defense to the charge that it discriminatorily terminated Weyer's
employment, the Respondent contended that Weyer was actually dis-
charged because he characterized Roscoe Wagner as a "damned liar"
during their conversation on February 16,1954. According to Roscoe
Wagner, this characterization resulted from his admonishing Weyer
for having spent an inordinately long time at a stopover in Nevada,
The Trial Examiner, who had the advantage of observing the de-
meanor of the witnesses, discredited Roscoe Wagner's assertion that
Weyer actually called Roscoe Wagner a liar.
The Trial Examiner concluded that the Respondent discharged
Weyer because the latter had aroused the anger of Roscoe Wagner by
untruthfully answering an unlawful inquiry. Viewing the entire
record in this proceeding, however, we are persuaded that the Respond-
ent's real reason for discharging Weyer was not Weyer's equivocation
in response to Roscoe Wagner's inquiry concerning Weyer's union
membership, but the fact that Weyer had actually joined the Union
and was an active member. We believe that Roscoe Wagner seized
upon his violent argument with Weyer as an excuse to rid himself
of a union adherent. We are fortified in this conclusion by Weyer's
undenied and credited testimony that Roscoe Wagner informed Weyer
on February 16, 1954, that "you are going to resign" because "I don't
want no union man around here," as well as by Roger Wagner's state-
ment to Weyer that "You know how Roscoe feels about the union,
you know what happened to Dick Gear and Bob Sauers and some
more of them." These circumstances, viewed in connection with the
Respondent's threats of discharge or loss of employment to Gear and
Funk if the Union was successful in its organizational campaign, con-
vince us that Weyer was discharged because he had allied himself
with the Union. Accordingly, we find, like the Trial Examiner, that
Weyer's discharge was in violation of Section 8 (a) (3) and (1)
of the Act.
Order
Upon the basis of the entire record in this case, and pursuant to
Section 10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that Roscoe Wagner
d/b/a Wagner Transportation Company, Twin Falls, Idaho, his
agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in General Teamsters, Warehouse-
men and Helpers Union, Local No. 483, AFL, or in any other labor
organization, by discharging any of his employees or by discriminat-
ing in any other manner in regard to hire, tenure of employment, or
any term or condition of employment.
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Discharging, by threats or interrogation, or in any other man-
ner interfering with, restraining, or coercing employees in the exercise
of the rights to self-organization, to form labor organizations, to join
any labor organization , to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for the
purposes of collective bargaining or other mutual aid or protection,
or to refrain from any or 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 in
Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Make Cecil Weyer whole for any loss of pay he may have
suffered by reason of the discrimination against him in the manner
set forth in the section of the Intermediate Report entitled "The
Remedy."
(b) Post at his place of business in Twin Falls, Idaho, copies of
the notice attached to the Intermediate Report and marked "Ap-
pendix." 2 Copies of said notice , to be furnished by the Regional
Director for the Nineteenth Region, shall, after being duly signed by
the Respondent, be posted for sixty (60) consecutive days thereafter
in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(c) Make available to the Board or its agents all payroll or other
records convenient for a computation of the amount of back pay due
under the terms of this Order.
(d) Notify the Regional Director for the Nineteenth Region, in
writing, within ten (10) days from the date of this Order, what steps
he has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint , insofar as it charges that
the Respondent violated Section 8 (a) (3) of the Act by discharging
Raymond S. Clement and Arlen Weeks, be, and it hereby is, dismissed.
2 This notice , however, shall be and it hereby is amended by striking from the first
paragraph thereof the words "Recommendations of a Trial Examiner" and substituting
in lieu thereof the words "A Decision and Order " In the event that this Order is en-
forced by a decree of a United States Court of Appeals , there shall be substituted for the
words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order."
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges filed by General Teamsters, Warehousemen and Helpers Union,
Local No. 483, AFL, herein called the Union, the General Counsel of the National
Labor Relations Board issued a complaint dated June 8, 1954, against Roscoe Wagner
d/b/a Wagner Transportation Company, Twin Falls, Idaho, herein called the Re-
spondent, alleging that the Respondent had engaged in and was engaging in unfair
WAGNER TRANSPORTATION COMPANY 1183
labor practices within the meaning of Section 8 (a) (1) and (3 ) and Section 2 (6)
and (1) of the National Labor Relations Act, as amended, 61 Stat. 136, herein
called the Act.
In respect to unfair labor practices, the complaint alleges that on dates subsequent
to February 1, 1954, the Respondent interfered with, restrained, and coerced his
employees in the exercise of rights guaranteed in Section 7 of the Act by means of
interrogation, threats, and discharges and that the Respondent discouraged mem-
bership in and activity on behalf of the Union by the discharge of Cecil A. Weyer,
Raymond S. Clement, and Arlen Weeks.
Respondent's answer admits the jurisdictional allegations of the complaint, denies
the commission of unfair labor practices, and asserts that Weyer, Clement, and
Weeks were discharged for lawful cause.
Pursuant to notice a hearing was held before the duly designated Trial Examiner in
Twin Falls, Idaho, on July 14, 1954. All parties were represented by counsel, were
permitted to examine and cross-examine witnesses, and to introduce evidence per-
tinent to the issues . During the course of the hearing I granted Respondent's un-
opposed motion to dismiss the complaint in respect to the discharge of Raymond
S. Clement.
Upon the entire record of the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Roscoe Wagner d/b/a Wagner Transportation Company, with headquarters in
Twin Falls, Idaho, operates trucks under a certificate from the Interstate Commerce
Commission to and through the States of Idaho, Oregon, Nevada, Washington,
Utah , and California . Respondent's gross annual revenue from trucking services
is approximately $350,000, of which about $250,000 is derived from the transporta-
tion or commodities in interstate commerce. Respondent is primarily a carrier of
livestock and produce.
It. THE LABOR ORGANIZATION INVOLVED
General Teamsters, Warehousemen and Helpers Union, Local No. 483, AFL, is
affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Heipers of America, AFL, and is a labor organization admitting to membership
employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
Roscoe Wagner is the active manager of his business and is assisted by his brother
Roger. Many of the drivers employed by the Respondent were hired by Roger
Wagner and some discharged by him. Roger Wagner testified that his actions in
respect to hiring and firing were subject to the final approval of his brother, but the
evidence is clear and I find that Roger Wagner is a supervisor within the meaning
of the Act. The Respondent has been in the business of trucking livestock and
produce for several years. In 1951 the Respondent and the Union bargained con-
cerning a contract. According to Roscoe Wagner no agreement was reached that
would permit him to continue doing business with the number of trucks then be-
ing used and in consequence he disposed of some of his equipment and curtailed
his operations. In early 1954 Respondent's business had again expanded to a point
where he was operating about 13 trucks with approximately 25 drivers. Early in
February, probably Saturday, February 6, according to the import of the testimony
of Roger Wagner, the Respondent learned that the Union was again attempting to
organize the drivers. On February 16 both Wagners called on Cecil F. Jones, the
Union's business representative. Roscoe Wagner, according to Jones' substantially
undenied and credited testimony, asked why the men wanted a union and asserted that
he was paying good wages, leaving no reason for dissatisfaction. Jones answered
that wages appeared not to be a source of grievance to the employees, but that cer-
tain other working conditions perhaps were. Roscoe Wagner said that there woLild
be no necessity for holding an election, that he was willing to sign an agreement,
but that he could not pay the rates applicable to some other freight trucking opera-
tions; that before he would sign such a contract he would sell his trucks and dismiss
his employees. The next morning Roscoe Wagner and Jones inet again briefly.
Jones asked Wagner if he would not reinstate Cecil Weyer, who had been dis-
charged a day or two previously. Wagner answered that he would not rehire a
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
man who had called him a liar; that Weyer had been wasting too much time on trips
and had been drinking on the job.' Sometime later in the month the Respondent
and the Union signed a consent-election agreement and an election was held in early
March. The numerical result of the election does not appear in the record, but it
is clear that the Union was not successful . The Regional Director set the election
results aside on some date in June. No refusal to bargain is alleged.
In September 1953 the Respondent hired Cecil Weyer as a driver. Weyer there-
after worked regularly, principally on a run between Twin Falls, Idaho, and Los
Angeles, California, until he was discharged on February 16, 1954. Weyer testified
that he had been a member of the Union for about 15 years and in early February
had signed a new authorization card at the solicitation of Business Representative
Jones. On February 16,2 still according to Weyer, while in a conversation with
other employees in Respondent's shop, Roger Wagner asked, "How are you and
the Union doing? . . . I hear you fellows are organized." Weyer replied that he
knew nothing of it and when Roger Wagner asked if he had not signed an appli-
cation card for the Union, answered that it was unnecessary for him to do so as
he had been a member for 15 years. At this point Roscoe Wagner, who appears to
have been in a position to overhear the exchange, told Weyer that he was a liar
and producing a piece of paper from his pocket held it up and said, "I can tell
you right where you signed this application and the day and everything, all about
it." With that, according to Weyer, Roscoe Wagner approached with doubled fist
and threatened to strike Weyer. Weyer attempted to mollify him but the latter
said that he did not want to talk to a Communist and announced that Weyer would
have to resign. At Roscoe Wagner's direction Roger Wagner took Weyer to the
office where the former typed the following:
To Whom It May Concern: Mr. Cecil Weyer has been in my employ from the
9th month of 1953 to the 2d month of 1954. He left of his own free will.
His services as a truck driver have been satisfactory.
After Roscoe Wagner had signed it, Roger Wagner gave the writing to Weyer,
saying, "You know how Roscoe feels about the Union. You know what happened
to Dick Gear and Bob Sauers and some more of them." Weyer then left.
Roger Wagner testified that Weyer was a competent and industrious employee in-
sofar as his driving was concerned, but that he left time unaccounted for while on
the road. On cross-examination Roger Wagner testified that there was only
one incident of this nature which caused any concern and that it occurred sometime
in December 1953. On the occasion of Weyer's discharge, according to Roger Wag-
ner, he heard only a part of the exchange between Roscoe Wagner and Weyer, but
from what he heard both of the men were using strong language, both were excited
and intemperate in their assertions , and Weyer at some point called Roscoe Wagner
a liar. It was this last expression, according to Roger, that caused Weyer's discharge.
Roscoe Wagner testified that on the occasion of Weyer's termination Weyer and
Roger were in a discussion in which Roscoe intervened. According to Roscoe he
then criticized Weyer for making unauthorized and lengthy stops at some point in
Nevada. Whereupon according to Roscoe, Weyer called him a "damned liar."
This, according to Roscoe Wagner, almost precipitated a fist fight and resulted in
Weyer quitting his job. Roscoe Wagner denied that membership in the Union played
any part in Weyer's termination. On April 30 the Respondent offered Weyer re-
employment, which the latter refused
Arlen Weeks, whose termination is also alleged to have been discriminatorily
motivated, did not appear as a witness. The evidence is that Weeks, then having
been employed for a lesser time than any other driver, was told on February 15
that because the Respondent had disposed of two trucks there no longer would be
work for him. Between then and March I Weeks worked as an extra driver on a
trip or two and then, according to the credited and uncontradicted testimony of
Roger Wagner, was again offered full-time employment. Roger Wagner testified
that after accepting this offer and working a few days Weeks quit to take other
employment. There is testimony that the Respondent on February 15 knew that
Weeks was an applicant for membership in the Union However, Roger Wagner
denied that he had such information.
Richard Gear, at the age of 19, was hired in June 1953, as a driver and in early
February 1954 signed an application for membership in the Union. On a date
which I find the evidence to establish as Sunday, February 14, Roger Wagner told him
' Wagner did not give any instance of such an occur rence in his testimony
Weyer said the 15th. Principally because the letter of recommendation then given
to him bears the later date, I am peisuaded that lie is mistaken
WAGNER TRANSPORTATION COMPANY 1185
that because he was under the age of 21 he would have to be discharged. Roger
went on to say, according to the testimony of Gear, that the latter apparently was
not very happy in his employment . Gear replied that he was . Whereupon Roger
said that he disapproved of what Gear had done. After some verbal sparring, Roger
conceded that he had in mind the fact that Gear had joined the Union. Gear pro-
tested that he had not joined the Union yet and Roger asserted that he had at least
signed an application blank. Roger said that Gear had a right to do so but went
on, "You know we will never go union. . . they tried it once and we sold out."
Some further conversation , the details of which Gear could not recall , then took
place in the course of which Roger said that the "good" men, naming two of Re-
spondent 's drivers , were not members of the Union . Roger also said that when
Gear became 21 he probably could be reemployed . The discharge of Gear is not
alleged to be a violation of Section 8 (a) (3) of the Act, and his reinstatement is
not sought . According to Gear his age was common knowledge around the shop.
George Jones, another driver who was discharged in February , testified that in late
1953, learning that Gear was under age and believing this to be a matter about which
the Respondent should be informed , told Roger Wagner about it. According to Jones,
Roger said that he was aware of that circumstance.
Clinton E. Funk, who after some earlier employment with Respondent was re-
hired in November 1953, was discharged in May 1954 . Funk has been a member
of the Union for a number of years and appears to have been the one responsible
for the latest effort of the Union to organize Respondent 's employees . Shortly after
Funk began his activity in this connection , Roscoe Wagner, apparently then unaware
of Funk's activity , said that if the Union ever did "step in" he would be ruined. In
March, at about the time that the representation election was being conducted,,
Roscoe Wagner and Funk had a conversation in which the former said that if the
Union won the election , its wage demands would be beyond Wagner's ability to pay,
with the result that he would be forced to sell his equipment and get rid of his
employees . Roscoe went on to say that the Union was getting to be like a bunch
of Communists , that the business agent was no good but interested only in getting
sufficient members so as to hold his own job . In the same conversation Wagner
said that he had been unaware that Gear was under age and that Weyer was dis-
charged because of "past conduct ." At that time the Respondent had, as previously
mentioned , disposed of two trucks . Roscoe said that a lot more of them would go,
the same way if the Union got in.
Leroy Fox, a driver , testified credibly and without contradiction that about Feb-
ruary 16, Roger Wagner asked if he had been approached by the Union and how he
"felt" about it.
Both Wagners appear to have had means of knowing who of their employees had
authorized the Union as his representative . It seems probable, although it is denied,
that the Respondent was aware that Weeks had signed a union designation before
his discharge . I do not consider the evidence to establish , however, that the dis-
position of two trucks , which circumstance made it possible for the Respondent to
operate with fewer drivers , was motivated by any consideration other than economic
and Weeks was the most recently hired among the drivers. The fact that Weeks
was subsequently employed on an occasional basis and was finally offered regular
employment , negates any inference of an unlawfulness attending his initial sepa-
ration. I find no unfair labor practice in connection with the termination of Weeks.
A different answer is provided by the evidence , however, in respect to Weyer. I
have no doubt that on some day in December Weyer stopped his truck in Nevada
and remained parked for several hours , contrary to Respondent 's desires . But, as
Roger Wagner admitted in his testimony , this was not an operating factor in his dis-
charge and the matter was not even mentioned to Weyer prior to February 16. On
that date it is clear that Roscoe Wagner became seriously angry with Weyer and,
according to Roscoe , his anger was aroused by Weyer 's denying the occurrence of the
unauthorized delay in December capped by calling Roscoe a "damned liar." Hav-
ing observed the two men , Weyer and Roscoe Wagner , in the hearing room, I doubt
seriously that Weyer would so have risked retaliation from Roscoe. On the other
hand I consider it entirely probable that Weyer denied some assertion by Roscoe in
such a fashion as to permit Roscoe to believe that his word was questioned. It is
unclear how an incident not since repeated , which was not even commented upon to
Weyer in December , became of such importance on February 16 until one considers
that Weyer had designated the Union. Roscoe became informed of this and his
displeasure with such conduct arose to anger when Weyer made his denial. Weyer
had a right under the Act to keep his own counsel concerning his relation with the
338207-55-vol 110-76
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union and was not required to divulge whatever action he may have taken under
the interrogation by Roscoe or Roger. The temper of the questioning by Roger in
the hearing of Roscoe was accusatory and Weyer could well have believed that his
job would be safer if he denied designating the Union.
If the principal reason then for Weyer's discharge was the use of the phrase
"damned liar," the letter couched in terms of recommendation then given to him
is puzzling. If the reason for the discharge was a lawful one, the record does not
suggest how the Respondent could benefit by making it appear to be a resignation.
The letter which states that Weyer left of his own free will, recites a circumstance
contrary to fact in that respect. I am persuaded that the letter was drafted in that
fashion because of a consciousness on the part of Roscoe Wagner that the discharge
was indeed for reasons which the Act does not permit. I credit Weyer's testimony
that he accepted this letter even though it misstated the circumstances of his termi-
nation for the reason that the occasion was an unpleasant one, containing the sug-
gestion of possible bodily injury, and that Weyer, as he testified, wanted to get out
quickly.
I find that Weyer was discharged on February 16 because he incurred the anger
of Roscoe Wagner by untruthfully answering an unlawful inquiry as to his member-
ship in or activity on behalf of the Union. The questioning was of such a charac-
ter as to intimidate Weyer, and he was under no obligation to provide the Wagners
with an answer. In this complex of circumstances, the question about his union
activity itself amounted to a violation of the Act and his discharge because he an-
swered untruthfully was an invasion of the rights which Section 7 of the Act guaran-
teed him. The discharge of an employee because he refuses to divulge or answer
misleadingly to questions which are designed to secure the divulgence of his relation
to a labor organization, has a reasonable and natural tendency to discourage mem-
bership and activity in behalf of a labor organization. Because this is so, I find
that the discharge of Weyer on February 16 discouraged membership in and activity
in behalf of the Union and that the Respondent thereby violated Section 8 (a) (3)
and (1) of the Act.
Concerning Richard Gear, I find that the Respondent knew of his minority a month
or two before his termination. The complaint is so framed that the issue in respect
to Gear is not the motivation for the discharge or whether the Respondent thereby
discouraged membership in the Union but poses for decision the question if the
Respondent by that action interfered with, restrained, or coerced his employees. I
find, in accord with the testimony of Weyer, that on February 16 Roger Wagner
intimated that Gear was discharged because of membership in the Union and that
on the 14th Roger suggested that the Respondent might sell its business if the drivers
chose the Union to represent them. I find that by holding out the discharge of
Gear as resulting from membership in the Union and by suggesting that designa-
tion of the Union might result in the sale of Respondent's business, the Respondent
interfered with, restrained, and coerced his employees in the exercise of'rights guar-
anteed in Section 7 of the Act and thereby violated Section 8 (a) (1) of the Act.
I credit the undenied testimony of Clinton Funk that Roscoe Wagner intimated
that the success of the Union might result in a loss of employment and that in such
event more trucks would be sold or otherwise disposed of. By threatening in this
fashion unfavorably to affect the employment of his drivers in the event of union
success, by interrogating his drivers-particularly Weyer, Fox, Gear. and Jones-
about their participation in the union drive, and by telling his drivers that he knew
who among them had joined the Union; where and when they had done so, thus
encouraging them to believe that their protected activities were under surveillance,
the Respondent interfered with, restrained, and coerced them in the exercise of
rights guaranteed in Section 7 of the Act and thereby violated Section 8 (a) (1) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with his operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that he be ordered to cease and, desist therefrom and to take
certain affirmative action designed to effectuate the policies of the Act.
WAGNER TRANSPORTATION COMPANY 1187
Having found that the Respondent discriminated in regard to the tenure of em-
ployment of Cecil Weyer by discharging him on February 16, 1954, it will be rec-
ommended that the Respondent cease and desist from such conduct and make Weyer
whole for any loss of pay 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 as a driver from February 16 to the date of offer of reemploy-
ment on April 30, less his net earnings during that period. The back pay shall be
computed in the manner established by the Board and the Respondent shall make
available to the Board upon request payroll and other records to facilitate checking
of the back pay due (F. W. Woolworth Company, 90 NLRB 289).
Having found that by interrogation, threats, and suggestion of surveillance, the
Respondent has violated Section 8 (a) (1) of the Act, it will be recommended that
he cease and desist from such activity.
Upon the basis of the above findings of fact, and upon the entire record of this
case, I make the following:
CONCLUSIONS OF LAW
1. General Teamsters , Warehousemen and Helpers Union, Local No. 483, AFL,
is a labor organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Cecil
Weyer, the Respondent . has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) and (3) of the Act.
3. By interfering with, restraining , and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act , the Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The foregoing unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, you are hereby notified that:
WE WILL NOT discourage membership in any labor organization of our
employees by means of discharge or by discriminating in any other manner in
regard to hire, tenure of employment, or terms or conditions of employment.
WE WILL make Cecil Weyer whole for any loss of pay suffered as a result
of the discrimination against him.
WE WILL NOT by means of discharge, interrogations, threats, or in any other
manner, interfere with, restrain, or coerce employees in the exercise of their
right to self-organization , to form labor organizations , to join or assist General
Teamsters, Warehousemen and Helpers Union, Local No. 483, AFL, or any
other labor organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid and protection and to refrain from any and all
such activities, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of employ-
ment, as authorized in Section 8 (a) (3) of the Act.
All our employees are free to become or remain members of this Union or any
other labor organization.
ROSCOE WAGNER D/B/A
WAGNER TRANSPORTATION COMPANY,
Employer.
Dated---------------- By----------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.