Wes-Flo Co., Inc.

National Labor Relations Board - Board Decisions

Feb 6, 1976

222 N.L.R.B. 801 (N.L.R.B. 1976)

WES-FLO CO, INC.
Wes-Flo Co., Inc. and Frank Earl Frazier , Thomas G.
Green, and Vincent T. Lacey. Cases 12-CA-6640,
12-CA-6671, and 12-CA-6734
February 6, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On August 29, 1975, Administrative Law Judge
Phil Saunders issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its 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 brief
and has decided to affirm the rulings,' findings2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
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 and hereby
orders that the Respondent, Wes-Flo Co., Inc., Tam-
pa, Florida, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order.
i As Respondent concedes, the Board does not permit pretrial discovery
as matter of normal practice. E g., N L.R B v. Interboro Contractors, Inc.,
432 F.2d 854, 858 (C.A. 2, 1970); J H Rutter-Rex Mfg. Co., 194 NLRB 19
(1971), enfd. in relevant part 473 F.2d 223 (C.A. 5, 1973). The Respondent
rests its claim of prejudice essentially on the fact that credibility issues were
critical; however, parties to Board proceedings are routinely provided with
any affidavits taken by the General Counsel, if requested, before cross-
examination, for the particular purpose of testing credibility. We do not
believe providing the names of witnesses and copies of affidavits before trial
would significantly advance the search for truth, particularly in light of
countervailing considerations. Respondent does not argue that it was sur-
prised or that at any time during the hearing it sought and was improperly
denied an adjournment or recess because of any surprise. We find that the
exception is without merit.
2 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 an 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) We have carefully
exanuned the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
801
PHIL SAUNDERS, Administrative Judge: Based on charges
filed by Frank Frazier, Thomas Green, and Vincent Lacey,
a complaint against Wes-Flo Co., Inc., herein Respondent
or the Company, was filed on March 20, 1975,' alleging
violations of Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended. Respondent filed an answer to
the complaint denying it had engaged in the alleged unfair
labor practices. Subsequent to the hearing before me on
this matter, both the Respondent and General Counsel
filed briefs.
Upon the entire record in this case, and from my obser-
vation of the witnesses and their demeanor,2 I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Respondent is a Florida corporation with an office
and place of business located in Tampa, Florida, and is
engaged in business as a carrier of motor freight within the
State of Florida, and also engaged in the operation of a
warehouse.
Reynolds Metals Company is a Delaware corporation
operating a plant in Tampa, Florida, and plants in other
States, and annually receives goods and materials valued in
excess of $50,000 at its various plants directly from outside
the state where the plant is located. Respondent, during the
past 12 months, has derived gross revenue in excess of
$50,000 from Reynolds Metals Company for the warehous-
ing of that Company's aluminum products.
The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters, Chauffeurs and Helpers Local Union No. 79,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, here-
in called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Respondent's over-the-road trucking operations are
performed pursuant to an equipment lease agreement with
Gator Freightways, and Gator holds the carrier authority
under a permit from the Florida Public Service Commis-
sion. The Respondent's hauling is for customers of Gator
Freightways, and for such hauling the Company is com-
i All dates are 1975 unless stated otherwise
2 The testimony of all witnesses have been fully considered, and the ab-
sence of a statement in the resolution of a conflict in specific testimony, or
absence of an analysis of such testimony, does not mean that such resolu-
tion or analysis was not made See Bishop and Malco, Inc, d/b/a Walker's
159 NLRB 1159, 1161 (1966).
222 NLRB No. 128
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pensated by a percentage of the gross revenue therefrom.
The Respondent's over-the-road runs are primarily be-
tween Tampa and Miami, Dania, Hialeah, Fort Lau-
derdale, West Palm Beach, Fort Pierce, and Jacksonville.
The main company terminal and headquarters are in Tam-
pa. The normal commodities hauled include empty alumi-
num cans, beer, packing materials, and Purex products,
and the major shippers are Anheuser-Busch, Reynolds
Metals, Purex, Weyerhauser, and Crown-Zellerback. At
the present the Company has approximately 50 to 60 trac-
tors and 135 trailers in its over-the-road operation. Arthur
Perry, the president of Respondent, is still personally in-
volved in all facets of the operations, including assistance
in the dispatching office and even in the checking up on his
drivers while they are out on the highways.
The main issues in this case are whether Frank Frazier,
Thomas Green, and Vincent Lacey were fired by Respon-
dent because of their union activities, and whether Arthur
Perry made statements to a recently fired employee,
Charles Bryant, which violated Section 8(a)(1) of the Act.
It is clear from the record that during January there was
a union organizing campaign going on among
Respondent's truckdrivers, and a union meeting was held
in Tampa on Saturday; January 11, and which was attend-
ed by Frazier, Green, and Lacey.3
Thomas Green was hired by the Respondent in 1974 as
an over-the-road driver, and was discharged on January
14. On Monday, January 13, Green made a delivery by
truck to West Palm Beach and was returning to
Respondent's main terminal in Tampa on State Road 710,
when he was stopped by an official of the Florida Public
Utilities. The official checked the company equipment
being operated by Green, and then gave him a written re-
port citing some minor problems, and which report Green
turned in to Respondent's dispatcher when he returned to
Tampa a few hours later. On the next day Green was fired,
and the reason given was that he was "off route" by driving
on State Road 710. Respondent has determined the roads
that it wants its drivers to use, and has also given its drivers
Florida road maps which are marked to show the designat-
ed roads or routes to be taken. State Road 710 runs from
West Palm Beach to Okeechobee, but it is not marked as
one of the designated routes.
Green testified that State Road 710 was a better highway
than the approved route marked on the company map, that
he had upset four cases of beer on one occasion due to the
roughness on the marked route, said that Jim Rogers, the
Respondent's night dispatcher, had told him that Road 710
was the route they "usually ran," that other company driv-
ers used Road 710, stated he was never told that being off
route was dischargeable offense, and that the only reason
for the marked routes on the company maps were to avoid
weight scales. Green admitted his awareness of being off
3 By letter dated April 18, 1975, without prejudice to their position on the
merits, the Respondent offered reinstatement to each of the three discrimi-
natees involved herein, and all three accepted the offer and returned to
work. Subsequently thereto it appears that Green voluntarily quit his job
and Lacey is having medical problems, but for purposes here it is sufficient
to note that on April 18 a valid offer of reinstatement was made and accept-
ed.
° See G.C Exh 2.
route on January 13, at the time he was stopped and his
equipment checked.
Anthony Gucciardo, a former driver for Respondent,
testified he did not always follow marked routes, and that
drivers were told by company supervisors not to go on
roads "with scales." Gucciardo said that he had also driven
Highway 60, an unmarked road on the map, and in so
doing had broken down three times with the Company
sending help to him, but nothing was ever said to him
about these incidents even though on one occasion the Re-
spondent had to send a mechanic out to his truck. Gucciar-
do further stated that when driving for Respondent he had
also taken Route 710 when making trips to West Palm
Beach because it was a faster road, and he had seen other
drivers of Respondent taking the same road. Frank Frazier
stated that he also drove on Route 710, and on one occa-
sion while on 710, he was stopped by a highway trooper
who gave him a ticket showing the truck had been over-
weight. Frazier said he turned this ticket over to the dis-
patcher and Respondent paid the fine, but was never told
by the dispatcher or any other official of Respondent that
he should not have been on this road. Cecil Horn testified
he had driven Route 710 before getting a company map,
but that he did not drive on it thereafter.
Witnesses for the Respondent testified that the Compa-
ny has a firm rule against being off route, and when drivers
are actually caught off route they are subject to discharge.
Night Dispatcher Rogers denied giving Green or other
drivers permission to drive on Route 710. The
Respondent's witnesses explained in considerable detail
why Route 710 is objectionable and less safe than the ap-
proved roads. Admittedly, prior to March 1973, Route 710
was actually used by Respondent, but there was testimony
that an accident occurred on Route 710 in March 1973
which resulted in the decision to pull all of the
Respondent's trucks off this road. According to the
Respondent's witnesses there are three basic hazards on
Road 710: roughness of pavement, narrow pavement with
only two lanes, and practically nonexistent shoulders. It is
also a "lonesome stretch" of 50 or 60 miles with only one
small town, Indiantown, and from which service calls are
exorbitantly high.
Frank Frazier was employed by the Respondent as an
over-the-road driver from March 27, 1974, until his dis-
charge on January 17, 1975, and the reasons given were
that on January 15 he returned very late from his dispatch
to Hialeah, and on the next day, January 16, he was unrea-
sonably late in making his trip from Tampa to Jackson-
ville.5
This record shows that on January 15, Frazier was dis-
patched from Tampa at 4:30 a.m. for a delivery to the
Winn-Dixie warehouse at Hialeah; that he called the Tam-
pa dispatcher from Hialeah at 1:15 p.m., and was then
5 The decision to discharge was made by Arthur Perry who testified he
did so because of Frazier's "conversion" of company equipment and being
off route. Parenthetically, it should be pointed out that Perry' s use of the
word "conversion" is not to be confused with the precise legal definition,
but, rather, it is his term to describe a situation where a driver does not have
a satisfactory explanation for his delays on the road Perry 's decision to
discharge Frazier was communicated to W.M. "Skip" Borders, the
Respondent's personnel manager. Borders testified the reason for the dis-
charge was that Frazier had taken excessive trip time on January 15 and 16
WES-FLO CO, INC.
instructed to return to Tampa with 24 pallets and 2 cases of
damaged goods; and that he arrived back in Tampa at 1:30
a.m. the following morning. The distance between Hialeah
and Respondent's Tampa terminal is about 247 miles and
the normal driving time one way is around 5 to 5-1/2
hours, but the total time elapsed for Frazier's round trip on
January 15 was 21 hours, approximately 6 or 7 hours lon-
ger than was normal for such a trip. After his call to the
day dispatcher in Tampa at 1:15 p.m., Frazier did not call
the dispatch again until about 8 p.m., and then informed
Jim Rogers, the night dispatcher, that he was in Clewiston,
which is about 90 miles northwest of Miami, and that he
had stopped to sleep for about 3 hours enroute and had
also experienced some trouble with the battery cables on
his tractor. It took Frazier about 1 hour to correct this
problem with the battery.
Although the Respondent does not prohibit its drivers
from stopping for a nap if they are sleepy, it does request
that the drivers call the dispatch office in Tampa if they are
going to be stopped for more than whatever time is neces-
sary to eat. Frazier did not call the dispatch office when he
stopped to sleep, but did call after waking up, as aforestat-
ed.
At 1 p.m. on January 16, Frazier was dispatched from
Tampa to Jacksonville. On leaving Tampa, Frazier headed
out of town by the way of the 30th Street Extension, which
parallels Interstate 75 to the north from Tampa. Shortly
after getting on the 30th Street Extension, Frazier stopped
at a small store on the outskirts of Tampa to telephone his
wife, and in order to do so it was necessary to park his
truck on the shoulder of the road. When Frazier returned
to the truck he discovered that one of his tractor tires was
bogged down in the soft fill on the shoulder of the road,
and as a result he spent about 4 hours working by himself
gradually inching the tractor forward in his efforts to get it
back on the road. After doing so Frazier then drove to
Wildwood, about 60 miles north of where he had been
stuck, and then called Dispatcher Rogers in Tampa, who
had reported for duty at 6 p.m., and advised Rogers of the
cause of the delay. Frazier -then drove on to Jacksonville,
but did not arrive at the terminal there until sometime late
that night-' Upon his arrival in Jacksonville Frazier en-
countered further difficulties in getting the terminal un-
locked, but after about an hour or so a watchman ap-
peared, and Frazier testified he then hooked up and
brought back to Tampa the load he had been given or
assigned at the time he left Tampa. Frazier also testified
that before starting back from Jacksonville, he called Dis-
patcher Rogers and inquired if anyone would be waiting
for his load, and was informed no one would be waiting.
Frazier got back to Tampa about 3 a.m. on January 17.
Respondent President Arthur Perry testified that he had
gone up to the Jacksonville terminal on the afternoon of
January 16 for a business meeting and arrived there
around 5 p.m. and, in keeping with his customary practice,
checked the dispatched records and noted there was a load
of draft beer to be hauled back to Tampa. Perry stated he
then learned from the Jacksonville dispatcher that the beer
6 Jacksonville is approximately 210 miles from Tampa, and usually takes
about ,4 hours one way.
803
load had been booked in expectancy of Frazier hauling it
back to Tampa on his return that evening. According to
Perry, he then called Tampa to determine if they had heard
from Frazier and what his proximity was to Jacksonville,
but was advised that Frazier had not called in. Perry stated
that at this point of time Frazier should have been at the
Jacksonville terminal, since the distance from the Tampa
terminal is 210 miles and the normal driving time is about
4 hours. According to Perry, he was already aware of
Frazier's delay on the Hialeah run the day before, as
aforestated, and he then decided to switch the load of draft
beer to Robert Way, who he said was the only other driver
available at the Jacksonville terminal, but that Way had
previously been scheduled to haul a nonpriority load back
to Tampa.
Vincent Lacey, also an over-the-road driver, was em-
ployed by the Respondent around October 15, 1974. The
last day he actually worked was Friday, January 10, 1975.
It is Respondent's position that Lacey did not make him-
self available for work on Monday and Tuesday, January
13 and 14, and that he acknowledged to Arthur Perry, on
January 14, that he had quit.
In his testimony Lacey described himself as the "instiga-
tor" of the union activity, and stated he had picked up
union cards around the middle of December 1974, and had
started getting drivers to sign them. On Saturday morning,
January 11, Lacey and the other drivers met with a repre-
sentative of the Union to obtain additional information as
to their organizational efforts, but testified that Al Castel-
lano, one of the drivers who had been expected to attend,
did not show up at this meeting and as a result he (Lacey)
telephoned him, and was then told by Castellano that he
had been advised by Arthur Perry the night before that he
(Perry) knew about the union meeting and the identity, of
those involved, and that the Company was going to "come
down hard" on those persons, and that Lacey would be
fired on Monday. Lacey then called the Respondent's day
dispatcher, Randy Perry, on the morning of January 11
while the union meeting was still in progress, to find out if
he was scheduled to be dispatched on Monday, but Randy
Perry told him to call back later after the dispatch schedule
was prepared. Lacey called back at about 2:30 that af-
ternoon and was then advised there would be no runs on
Monday and that if the Company needed him the dis-
patcher would-call. Lacey, stated he did not receive any
calls and as a result he phoned the company terminal on
Monday morning, January 13, and was then advised by
Randy Perry that there was nothing available as yet, but he
would call Lacey if they got anything. Lacey stated that
again he did not receive any calls, but after he had heard
from Tom Green on Tuesday afternoon, January 14, that
Green had, been fired, he then called the terminal that same
evening and asked Arthur Perry if his paycheck was ready.
He testified that Perry answered affirmatively and also told
him they had tried to reach him until 1 p.m. that day, but
that he and Skip Borders had then decided that Lacey had
another job, and they had also requested the preparation of
his final paycheck which was already in, Borders' posses-
sion, and which Lacey could pick up the following morn-
mg. Lacey further testified that he picked up his final pay-
check sometime before noon the next day, January 15.
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Arthur Perry testified that he had never discussed the
subject of the Union with Al Castellano. Randall Perry
stated that the schedule sheet for January 13 shows that
Lacey was listed theron as being one of several drivers who
were "on call," and he had no recollection of any tele-
phone call from Lacey on Saturday, January 11, but that
his normal response to, inquiries from "on call" drivers,
when there are no runs available, is that he will call them as
soon as a run is available. Both Randall Perry and Arthur
Perry testified that they attempted to call Lacey on Janu-
ary 13 and 14, but without success. Randall Perry testified
that as additional loads became available on January 13,
he telephoned various "on call" drivers, and that afternoon
he telephoned Lacey's home at 2 p.m. for the purpose of
giving him one of the loads, but received no answer. Night
Dispatcher Jim Rogers also stated he attempted to call La-
cey on January 13, but could get no answer.
Randy Perry testified that on January 14 Lacey's name
was on the roster and he called him at home twice, but got
no answer on the first call, and on his second call a "femi-
nine voice" answered and informed him that Lacey was
not home. Randy Perry said he made it a practice not to
talk to "drivers wives." Arthur Perry stated that when he
called Lacey a child answered the phone and told him that
his dad was not home.
Arthur Perry admitted receiving a call from Lacey dur-
ing the late evening of January 14, but according to Perry
he then told Lacey they had been trying to get ahold of him
for 2 days, assured Lacey that he had not been fired, and
told him that union activity had nothing to do with his
status. Perry testified that at the conclusion of their conver-
sation Lacey informed him that he already had another
job.
It is alleged in the complaint that on February 7 Arthur
Perry interrogated and threatened employees, and created
the impression of surveillance of union activities. All of the
independent 8(a)(1) allegations concern statements made
to Charles Bryant by Perry. Bryant had been terminated on
the morning of February 7, allegedly because he had
ruined two tires, and then had a conference or discussion
with Arthur Perry soon thereafter in which his discharge
and the subject of the Union was discussed.
On the occasion here iii question, Arthur Perry informed
Bryant that he knew the drivers were trying to get the
Union in, told Bryant that on a certain date he (Bryant)
had signed a card for the Union, that on January 31 Bryant
was passing out cards at the terminal in Dania-Fort Lau-
derdale, further informed Bryant that before he'd see the
Union come in "he'd lock the doors up," but if the Union
was successful he'd write the contract himself to make "it
rough" on the employees so that everyone "would regret"
signing a card. Perry then further told Bryant that he was a
young man and would have no problem getting a job, but
then referred to Frank Frazier and said, "he's kind of an
old man and he ain't going to be able to get a job so easy."
Perry then mentioned driver Cecil Horn and told Bryant
that he was also a problem, and "if he didn't watch out
he'd be gone before too long." 7
7 Questions were raised as to whether any statement made by Perry on
this occasion could be considered a violation of the Act as Bryant had been
Arthur Perry denied all of Bryant's foregoing testimony.
Perry testified that he went to Miami on the afternoon of
February 6, and did not return to Tampa until February 8,
but then admitted that he did talk to Bryant on either Feb-
ruary 8 or 10, and in their discussion they argued about the
two tires the Company accused Bryant of running flat,
while Bryant contended that both of the tires blew out .8
Final Conclusions
In order for me to accept Perry's denial of all the union
statements attributed to him by Bryant, as aforestated, I
would have to conclude that in their February discussion
Perry never at any time mentioned or made any reference
whatsoever to the Union, that he and Bryant only talked
about working conditions and the two truck tires, and that
the several statements attributed to Perry about the Union
and its consequences, were merely imaginative thoughts or
hallucinations on the part of Bryant because actually abso-
lutely nothing at all was ever said to Bryant on this occa-
sion about the Union. From the sequence of events, the
demeanor of the witnesses, and based on the circumstances
and facts in this record as a whole, I am not prepared to
make such conclusions, and I find otherwise.
The foregoing testimony which has been credibly attri-
buted to Perry includes instances of an unlawful threat to
close down his trucking operations, a threat to write a con-
tract that could result in loss of benefits, threats of dis-
charge because of union activities, and creating the impres-
sion of surveillance of union activities. These are types of
employer conduct which are clearly prohibited by Section
8(a)(1) and consistently held violative of the Act.
It is also well-established Board and court law that in
determining whether an employer's conduct amounts to in-
terference, restraint, or coercion within the meaning of Sec-
tion 8(a)(1), the test is not the employer's intent or motive,
but whether the conduct is reasonably calculated or tends
to interfere with the free exercise of the rights guaranteed
by the Act and, of course, the fact that employees were
neither fearful nor apprehensive of their rights is immateri-
al.
Turning now to the three discriminatees named herein.
The Respondent maintains and argues that the General
Counsel has failed to offer sufficient proof showing prior
knowledge of their union activities. A violation, of Section
8(a)(3) requires, as an element of its proof, the employer's
knowledge of the employee's union activity. This neces-
fired by the Company shortly before this conversation However, it is clear
from the record that Bryant sought this interview with Arthur Perry in
regard to his request that he be put back to work by Respondent. As point-
ed out, in this situation Bryant was an applicant for employment, and of
course , the Board has long held that statements to applicants , or to a former
employee seeking reemployment , concerning the fact that the Company had
previously fired other employees because of their union activities , is a viola-
tion of Sec 8(a)(1) of the Act Fotofab Corporation, 181 NLRB 700 (1970).
8 For the purpose of attacking Bryant's credibility the Respondent pre-
sented testimony to the effect that from a visual inspection of these two
tires, both produced at the hearing, that the condition of the badly distorted
one was caused by running it flat for a long distance , and that the other
companion tire eventually blew from the extra weight and the heat generat-
ed by the flat tire The Respondent further attacks Bryant's credibility on
the basis of statements in his affidavit, and in particular his contention that
certain drivers made less money after the union meeting on January 11.
WES-FLO CO, INC.
sary element , however, "need not be established by direct
evidence, inference may be drawn from the surrounding
circumstances ." 9 I draw such inference here. I am satisfied
that Arthur Perry learned, through sources close to him, as
clearly indicated in the testimony given by Lacey and
Bryant, that the three discriminatees involved herein were
active supporters of the Union, and also knew that all three
of them had attended the union meeting on January 11.10
Throughout this entire record the Respondent repeatedly
points out that Perry was continually involved on a daily
basis in every phase of his trucking business including the
answering of the phone and even in the dispatching of the
drivers. Under such circumstances, it is highly unlikely that
with this constant vigilance and scope of daily contacts,
Perry would be uninformed about union activities and
identities. From this record it appears to me he was fully
informed, and that he determined to disrupt interest and
activity in the Union by immediately discharging the three
drivers involved herein. No other conclusions better fits the
facts, as I see them.
I do not believe that Green would have been discharged
for being off route without union motivation on the part of
the Respondent. There is a good deal of testimony in this
record that other over-the-road drivers were constantly op-
erating on numerous roads not approved by the Company,
but in the absence of extenuating circumstances were never
fired because of this.
As pointed out, both Randy Perry and Jim Rogers testi-
fied that Respondent does not allow drivers to operate on
State Highway 60 and/or U.S. Highway 27, north of State
Road 70, unless the driver is making a specific delivery off
such roads, and that any driver on these highways not
making deliveries would be off route and subject to dis-
charge. However, Anthony Gucciardo gave credited testi-
mony to the effect that on three different occasions he had
trouble with his truck on State Road 60 and contacted
Respondent to inform them of his problems and where he
was located, and at no time did anyone comment to him
for being on Route 60, as aforestated. While Dispatcher
Jim Rogers has no direct responsibilities in hiring and fir-
ing, it is still worth noting here that by his own admission
he could not recall any other driver, other than Green, who
had been discharged for being off route. Moreover, on Sep-
tember 17, 1974, Travelers Insurance Company submitted
a document to the Respondent noting that both Green and
Frazier were improperly driving on Highway U.S. 27. Re-
spondent, when receiving this report, brought the report to
the attention of the two drivers and which stated they were
speeding and tailgating, but Respondent made absolutely
no issue of the fact that they were not driving on an ap-
proved road.
Vincent Lacey credibly stated that late in the evening on
January 10, he was returning from a Jacksonville trip to
Tampa, and exited north of Tampa on Highway 53, and
9 N.L KB. v. The Pembeck Oil Corporation, 404 F 2d 105, 110 (C.A. 2,
1968), enfg. in pertinent part 165 NLRB 367 (1967)
10 Both Green and Frazier signed cards for the Union and attended the
union meeting on January 11, and Lacey had picked up cards at the union
hall, urged others to sign them, and also attended the union meeting on
January 11.
805
that Arthur Perry was following him to check his speed and
had passed him on State Highway 54. Arthur Perry agreed
that he followed Lacey on this occasion in question to
check his speed, and the only difference in his testimony
was that the road on which he followed Lacey ,was State
Highway 52. Perry further testified that his drivers, when
running between Tampa and Jacksonville, were supposed
to be on the Interstate Highway when in the city limits of
Tampa, and drivers would be off route if they drive on
other roads. As the General Counsel points out, both State
Road 52 and 54 are roads off the Interstate north of the
Tampa city area, and are not approved company routes,
and it is therefore clear that Lacey was off route when
followed by Perry, but Perry did not at any time stop La-
cey or fire him, even though he had followed and clearly
observed Lacey driving on a road not marked by the Com-
pany as a designated route.
Respondent Safety Manager Robert Childers gave the
names of three or four drivers who had supposedly been
discharged for being off route, but on cross- examination
agreed that two of them had also destroyed property-
knocking down light poles and tearing the top of -a trailer
off-while other discharged for being off route had either
abandoned their trucks or had engaged in some other types
of serious misconduct.
In the final analysis, I credit the testimony of Green to
the effect that it was a frequent practice of the drivers not
to follow the designated routes established by the Compa-
ny, and that drivers were not discharged when only minor
consequences resulted from being off route, as was the situ-
ation on January 13 when Green merely received a citation
for equipment defects while driving on State Road 710.
As to Frazier the Respondent contends that his return
trip from Hialeah on January 15 took 6 or 7 hours longer
than normal and becuase of this delay he had to be
scratched from a scheduled run the next morning, and fur-
ther contended that his delay to Jacksonville on the next
day caused another inconvenience. The Company argues
that had Frazier been on time in Jacksonville, he could
have hauled a waiting load of draft beer, a priority item,
back to Tampa that evening, but that fortunately another
driver from Tampa was in Jacksonville, and the load of
draft beer was then rescheduled to him, as all detailed ear-
lier herein. I reject the contentions and arguments of the
Respondent, and find that union considerations triggered
and motivated the discharge of Frazier.
Frazier explained that he came back late from Hialeah
because he had become sleepy and pulled off the road to
take a nap and when he awoke he was unable to start his
truck because of some battery difficulties which required
about 1 hour to correct. The Respondent concedes- that
drivers have every right to take naps when they feel the
need and frequently do so, but insist that the drivers first
call into the Tampa terminal-
It is noted that Frazier called the Tampa terminal about
1:15 p.m. on January 15, so Day Dispatcher Randy Perry
knew Frazier was in Hialeah and returning. Frazier next
called Tampa at approximately 8 p.m. that same evening
and informed Night Dispatcher Rogers he had taken a nap
and had encountered battery problems and after so advis-
ing Rogers, Frazier then proceeded to drive on into Tam-
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pa. Nothing was said to Frazier about his return trip delay
when he arrived at the terminal, and there is no credited
evidence in this record that this delay caused the Company
any serious inconvenience, if any at all. Randy Perry sug-
gested that counting the 3-hour nap period and the 1 hour
for battery trouble, Frazier still should have returned by 11
p.m., but did not get in until 1:30 a.m. the next morning. In
view of this testimony the Respondent is apparently basing
their period of discontent on 2-1/2 hours, and on a delay
that actually did not cause the Respondent any real prob-
lems whatsoever.
On January 16, Frazier left Tampa at 1 p.m. but was
delayed on his trip to Jacksonville because he had pulled
his truck into an area near a small store just outside of
Tampa, and the truck had gotten stuck in the soft shoul-
ders, and rather than calling the Respondent, he tried to
get the truck out by himself and this took him several
hours, as aforestated. Frazier admitted he had made a mis-
take by not calling the terminal when he became stuck."
Frazier also contended that while he got to Jacksonville
quite late that evening, he still picked up the load that he
had previously been assigned to bring back to Tampa, and
brought that same load back after being told there was no
rush.
Respondent attempted to show that, by arriving late in
Jacksonville on the night of January 16, Frazier caused the
Company considerable problems due to the fact there was
a rush load of draft beer in Jacksonville that Frazier was
supposed to pullback to Tampa. In regards to this load of
beer, Day Dispatcher Perry testified he had assigned'an-
other driver, Tuttle, to drive from Tampa to Jacksonville in
order to pick up the beer load when Frazier had not called
in. However, as further pointed out, after examining the
dispatch sheets for the time period in question, Perry had
to change'his testimony as it was clear that Tuttle had not
made any trips 'to Jacksonville during this period. Randy
Perry then changed his testimony to say that the only dir-
ver who could have made the trip was a driver by the name
of Subrick,'but after again examining the dispatch sheets
he testified that Subrick could not have made the trip from
Jacksonville to Tampa. Perry then concluded, on redirect
examination, that there was also the possibility that anoth-
er driver who was already enroute to Jacksonville, could
have been switched off to the draft beer load because it
had a priority status.
Night Dispatcher Rogers stated that Frazier was to call
Tampa when he arrived in Jacksonville and receive instruc-
tions as to what load he would bring back, and that he was
the one who would give Frazier such instructions. Rogers
said he was aware that a load of draft beer was being load-
ed in Jacksonville, but that Respondent's driver, Robert
Way, pulled this load back to Tampa, and that Randy Per-
ry had assigned this beer load to Robert Way before he
(Rogers) had reported to work. Arthur Perry testified that
when he arrived at the Jacksonville terminal on the day in
question, he called Tampa and asked whether they had
II Whenever drivers have problems on the road they are supposed to call
Tampa and the Company will either send out help from the Terminal if they
are within 50 to 60 miles, or get assistance to them from a nearby service
station if they are further out
heard from Frazier, and after being informed that Frazier
had not called in, he made the decision to have the load of
draft beer pulled to Tampa by Robert Way, and so in-
formed the Tampa dispatcher's office. It is notable that
neither dispatcher mentioned any phone conversation with
Arthur Perry concerning the beer load in Jacksonville,
which both testified was dispatched from the Tampa termi-
nal. It would appear that Arthur Perry merely testified in
order to salvage the contradictory testimony of his two dis-
patchers. Moreover, there is no reliable evidence in this
record that Frazier was ever specifically scheduled to pull
the beer load in question back to Tampa, and efforts by
witnesses of the Respondent to establish the same were
highly conflicting and misleading, and, in the final analy-
sis, Rogers testified that Dispatcher Randy Perry had as-
signed the beer load to Robert Way. In fact, Rogers was
asked if the Company ever changed trailers or assignments,
and he replied that sometimes it is necessary to do so, and
then stated, "Well, we have scheduled loads, and we have,
like, priority loads. We have to change loads to get the load
moving. If one man isn't there on time, another man gets
there ahead of him, we can pull that trailer on out with an
earlier man." From his testimony and from other indica-
tions in the record, it is obvious that the Company is con-
tinually changing their plans and drivers as unforeseen cir-
cumstances develop, and their entire operations' and
system of communications are all geared to these rapidly
changing situations. Therefore, even assuming, arguendo,
that Frazier had been scheduled to pull the beer load back
from Jacksonville and his delay in route prevented him
from doing so, this development would not be unforeseen,
nor would it be particularly unusual in the overall opera-
tions. Furthermore, Frazier did call Dispatcher Rogers
from wildwood during the early evening of January 16, and
at this time there was no mention of any load to be hauled
back or that someone else had been assigned the beer load
because of his delay. I have found that the Respondent was
motivated by union considerations in the discharge of Fra-
zier. No other conclusion will fit the facts and patterns, as
I see them.
Respondent contends that it did not fire Lacey or fail to
dispatch him, but rather that Lacey voluntarily quit in or-
der to return to work for F. T. Kelly Company, a former
employer. E.R. Bradshaw, the traffic manager, for Kelly
Company, testified that on January 10, he called Lacey's
home and advised his wife that he had a job opening: On
the next evening Lacey called Bradshaw and told him he
would let him know on Monday or Tuesday whether he
would take the job. Lacey then called him on Tuesday,
January 14, and informed Bradshaw he would take the job,
but first had to make another run for the Respondent, and
also wanted to give the Respondent his notice to quit.
Bradshaw said that he could hold up the trip until Thurs-
day and Lacey said that he would be able to begin work by
that day. Lacey then reported to work on that Thursday
and continued to work for F. T. Kelly Company until laid
off.
On Saturday, January 11, while at the union meeting,
Lacey called the terminal on two or three occasions to find
out if he would be dispatched on the following week, as
previously indicated herein. On Monday he phoned again,
WES-FLO CO, INC. 807
but was told that he would be called if a trip or load devel-
oped.12 As also indicated earlier herein, various witnesses
for the Respondent testified that on both January 13 and
14 they made several telephone calls to Lacey's home but,
other than members of his family answering the phone,
they were unable to reach Lacey. From the demeanor of the
witnesses who testified before me, and from other factors,
circumstances, and the sequence of events as enumerated
in this record, I reject this testimony, I do not believe that
anyone from the Company called Lacey or his home on
either January 13 or 14.13
It further appears from this record that Lacey was not
put on the dispatch sheet for January 15, and which was
made up during the preceding afternoon by Randy Perry.
Randy Perry testified he discussed this matter with Person-
nel Manager Borders and was told to treat Lacey as having
quit. As pointed out, it would therefore appear that on the
afternoon of Tuesday, January 14, Respondent decided to
remove Lacey from its list of drivers and, in fact, terminat-
ed him before receiving any word from Lacey concerning
his taking of another job.
As detailed earlier herein, Lacey called the terminal on
Tuesday evening and spoke to Arthur Perry, and who then
told Lacey that Respondent had decided he had probably
gone to another job and had his check made up that af-
ternoon. On the following morning, January 15, Lacey
went to the terminal and picked up his last paycheck.
It is clear from this record that the drivers are paid on
Friday for the work performed on the week before, and if a
driver is fired he will then be, paid on the day of firing, but
if he quits he will be paid on the regular Friday payday.
Lacey's paycheck is dated January 14, but Perry testified
that Lacey asked about his final check in their conversa-
tion, and as a result he called his office on the next morn-
ing, January 15, and had his wife make out Lacey's pay-
check dated the day before. I believe Lacey's testimony to
the effect that when he called on Tuesday and asked about
his paycheck, he was then informed by Perry that it had
already been prepared and was available. As pointed out,
this version is supported by the date on the check, and the
fact that Lacey had not been marked down for dispatch on
January 15. In the final analysis, the credited evidence in
this record shows that Lacey was still working for the Re-
spondent on the dates material hereto, and had given no
indications to the Company that he might be quitting. In
fact, as late as Monday morning, January 13, Lacey called
the terminal and at this time was available and willing to
work. When Lacey called Bradshaw on January 14, and
told him he would take the job with F. T. Kelly Company,
as aforestated, he again put off his actual starting time by
saying he had to make a trip to Jacksonville for his current
employer. I agree that this chain of events certainly shows
that Lacey was not anxious to return to work for Kelly, but
rather was actually holding this job open while waiting to
see whether he was still working for the Respondent. How-
12 The dispatch sheet for Monday, January 13, shows that Lacey was "on
call" for this date.
13 Lacey's wife gave credited testimony that she was home on all the dates
material hereto and would have answered the phone in the absence of her
husband.
ever, whether Lacey had or had not accepted a job with
Kelly Company is of little or no consequence, as the Re-
spondent bases its termination of Lacey on their conten-
tion that they attempted to call Lacey for hauls, but were
unable to get hold of him, and, therefore, were under the
assumption he had quit. Moreover, it would appear to me
that even if the company dispatchers and others were un-
able to directly contact Lacey on January 13 and 14, there
would still be insufficient grounds to discharge him. This
record shows that quite frequently the dispatchers are un-
able to contact drivers who are "on call," and in such situa-
tions merely skip over the name and pass down their list to
the next driver. This is a rather common practice in the
overall operations of the Respondent's business, and under
normal circumstances would be no basis for any discharges
or for drawing any conclusions that a driver had quit.
Based on all of the circumstances and factors outlined
above, I find that Lacey was also discharged because of
union considerations.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operation of Re-
spondent described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has_ engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. A broad cease-
and-desist order is warranted in view of Respondent's dis-
criminatory conduct and other violations.
It has been found that Respondent unlawfully terminat-
ed Thomas Green, Frank Frazier, and Vincent Lacey on
the dates heretofore indicated, and in accordance therewith
it will be recommended that Respondent make them whole
for any loss of earnings they may have suffered as a result
of the discrimination against them by payment of a sum
equal to that which they would normally have earned, ab-
sent the discrimination, from the date of the discrimination
to the date of Respondent's offer of reinstatement, as indi-
cated early herein, with backpay and interest computed in
accordance with the Board's established standards.14 It will
be further recommended that Respondent preserve and
make available to the Board, upon request, all payroll rec-
ords, social security payment records, timecards, personnel
records and reports, and all other records necessary and
useful to determine the amount of backpay and the right to
reinstatement under the terms of these recommendations.
14 F. W Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing &
Heating Co, 138 NLRB 716 (1962)
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the mean-
ing 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 discharging Frank Earl Frazier, Thomas G.
Green, and Vincent T. Lacey, thereby discouraging mem-
bership in the Union, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
4. By interfering with, restraining, and coercing their
employees in the rights guaranteed in Section 7 of the Act,
as detailed herein, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Sec-
tion 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.
Upon the above findings of fact, conclusions of law, and
the entire record in the case, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 15
The Respondent, Wes-Flo Co., Inc., Tampa, Florida, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the Union, or any
other labor organization of its employees, by discharging
employees or otherwise discriminating against them in re-
gard to their hire and tenure of employment or any term or
condition of employment.
(b) Threatening to close its doors if the Union was suc-
cessful in organizing.
(c) Threatening to write a contract that could result in
loss of benefits to employees.
(d) Threatening employees with discharge because of
their activities on behalf of the Union.
(e) Creating the impression of surveillance of union ac-
tivities.
(f) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist labor organizations,
including the above-named organization, to bargain collec-
tively through representatives of their own choosing, to en-
gage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any or all such activities.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Make whole Thomas G. Green, Frank Earl Frazier,
and Vincent T. Lacey for any loss of earnings they may
have suffered by the discrimination against them in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(c) Post at its place of business and terminal in Tampa,
Florida, copies of the attached notice marked "Appen-
dix." 16 Copies of said notice , on forms provided by the
Regional Director of Region 12, after being , duly signed by
Respondent 's representative , shall be posted by Respon-
dent immediately upon receipt thereof , and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted . Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced , or covered by any other material.
(d) Notify the Regional Director of Region 12, in writ-
ing, within 20 days from the date of this Order , what steps
have been taken to comply herewith.
15 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.
16 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discriminate in
regard to the hire and tenure of employment or any
term or condition of employment of our employees
because of their membership in and activities on be-
half of the Union herein or of any other labor organi-
zation of their choice.
WE WILL NOT threaten to close our doors in event of
the Union.
WE WILL NOT threaten to write a contract that could
result in the loss of benefits to employees in event of
the Union.
WE WILL NOT threaten employees with discharge be-
cause of their union activities.
WE WILL NOT create the impression of surveillance of
employees' union activities.
WE WILL NOT in any manner interfere with, restrain,
or coerce our employees in the exercise of their rights
to self-organization, to form, join or assist labor orga-
nizations, including the Union herein, to bargain col-
lectively through a bargaining agent chosen by our
employees, to engage in concerted activities for the
purpose of collective bargaining or other mutual aid
or protection, or to refrain from any such activities.
WE WILL make whole Thomas G. Green, Frank Earl
Frazier, and Vincent T. Lacey for any loss of pay they
suffered by reason of our discrimination against them
together with interest thereon.
WEST-FLO Co., INC.