Westpoint Transport, Inc.

National Labor Relations Board - Board Decisions

Jan 16, 1976

222 N.L.R.B. 345 (N.L.R.B. 1976)

WESTPOINT TRANSPORT, INC.
Westpoint Transport, Inc. and International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local No. 551 , Independent.
Case 19-CA-7457
January 16, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
On June 5, 1975, Administrative Law Judge Rus-
sell L. Stevens issued the attached Decision in this
proceeding. Thereafter, the Respondent, the Charg-
ing Party, and the General Counsel filed exceptions
and supporting briefs. Respondent also filed a brief
in response to the exceptions of the Charging Party
and the General Counsel.
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 I as modified herein.
We agree, and so find, that the Respondent unlaw-
fully diluted earnings and transferred work out of the
unit on September 1 I and November 7 in retaliation
against Woods and his fellow unit employees for
their union activity. Our Order remedies their loss of
wages and benefits because of this unfair labor prac-
tice.
It does not follow that this finding proves that Re-
spondent sold its truck in January 1975, thereby re-
quiring the layoff of an employee, here Woods, for
unlawful reasons. Respondent sold its truck to take
advantage of an unusual opportunity to earn $6,500
in profit on the sale of the truck to a desperate cus-
tomer. This was feasible because business was slow
and there was no need for four trucks. Given this
situation one of the drivers had to be laid off. No
i 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 resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB
544 (1950), enfd. 188 F_2d 362 (C.A 3, 1951). We have carefully examined
the record and find no basis for reversing his findings.
The General Counsel and the Charging Party except to the lack of a
make-whole provision in the recommended Order The Administrative Law
Judge found, and we agree, that Respondent violated Sec. 8(a)(3) of the Act
by transferring work out of the bargaining unit and reducing the work of the
bargaining unit employees. A make-whole order is the normal remedy for
such conduct, and therefore we find merit in these exceptions. We shall
modify the Order accordingly.
345
seniority system was in effect and Respondent there-
fore could have laid off whomever it desired. Instead,
however, it laid off the employee who had the least
service with it or any of its companion companies,
i.e., Woods. Further, Respondent offered work to
Woods on several occasions after his layoff. On two
occasions he accepted work, but on other occasions
he turned down jobs. As the Administrative Law
Judge found, there is simply no evidence to show
that Respondent acted for unlawful reasons. We
therefore conclude that the layoff of Woods was not
discriminatorily motivated.
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 Respondent, West-
point Transport, Inc., Boise, Idaho, its officers,
agents, successors, and assigns, shall take the action
set forth in the said Order, as so modified:
1. Insert the following as paragraphs 2(c) and 2(d)
and reletter the subsequent subparagraphs accord-
ingly:
"(c) Make whole employees Foreman, King, and
Woods, whose work Respondent discriminatorily re-
duced, for any loss of earnings, including interest at 6
percent per annum, they may have sustained as a
result of the discrimination Respondent practiced
against them.
"(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to determine the amounts of
backpay due under the terms of this Order."
2. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER JENKINS, dissenting in part:
I am puzzled by the majority's failure to find that
employee Woods was laid off in violation of Section
8(a)(3) of the Act. I agree with my colleagues that
Respondent violated Section 8(a)(3) when on Sep-
tember 11, 1974, it transferred Lamb into the Boise
terminal, for the purpose of discriminating against
drivers King, Foreman, and Woods, effectively dilut-
ing the available work and reducing their wages.' In
so finding, we rejected Respondent's contention that
it needed another driver for a newly acquired truck.
2 Lamb quit on November 2, 1974, and was replaced by Randy Lind, son
of Respondent's owner We agree that the substantial amount of unit work
transferred to Lind continued the discrimination against King, Foreman,
and Woods because of their union support
222 NLRB No. 54
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Yet my colleagues accept Respondent's contention
that it became necessary to lay off Woods on Janu-
ary 7, 1975, because Respondent sold a truck.
This finding by the majority presents a glaring in-
consistency. If the transfer into the unit of Lamb and
Lind and the performance of substantial unit work
by them violated Section 8(a)(3) and (1) because it
had the effect of reducing the work available to and
the wages of King, Foreman, and Woods, then, sure-
ly, the layoff of Woods for lack of work must be
discriminatory, where a major cause of the alleged
lack of work is the continued unlawful performance
of such work by Lind.' Indeed, it is undisputed that
prior to the unlawful transfer of Lamb and later Lind
into the unit, Respondent had been operating with
three drivers. Since we have found that the employ-
ment of Lind was unnecessary and unlawful, it is
clear that Woods was laid off only as a result of
Respondent's unlawfully employing Lind to drive,
for retaliatory purposes.
3 Contrary to the interpretation suggested by the majority , I am not find-
ing that the sale of the truck in January 1975 was for unlawful reasons
Whether or not that sale was for legitimate business purposes is not control-
ling here , because but for the continued unlawful employment of Randy
Lind, it is quite clear that Woods would not have been laid off at that time.
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 sides had a chance to
give evidence, the National Labor Relations Board
has found that we violated the National Labor Rela-
tions Act and has ordered us to post this notice. We
intend to carry out the Order of the Board, the judg-
ment of any court, and to abide by the following:
The Act gives all employees these rights:
To organize themselves
To form, join, or help unions
To bargain collectively through representa-
tives of their choosing
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any or all of these things.
WE WILL NOT interfere with, restrain, or coerce
our employees in' the exercise of their rights
guaranteed to them by Section 7 of the National
Labor Relations Act, in violation of Section
8(a)(1) of the Act, by the following conduct:
threat to reduce wages, threat to reduce hours of
work; threat to refuse to allow unionization of
our facilities; threat to issue changed and strict
work rules; threat to transfer dispatching work
out of the bargaining unit; change of, and is-
suance of, strict work rules; transfer of dispatch-
ing work out of the bargaining unit; issuance of
individual warning letters; discontinuance of
benefits; transfer of work out of the bargaining
unit; interrogation of employees; interference
with a union election; and solicitation of with-
drawal of support for the Union.
WE WILL NOT discriminate against our employ-
ees in violation of Section 8(a)(3) of the Act by
the following conduct: issuance of changed and
strict work rules; transfer of dispatching work
out of the bargaining unit; issuance of individu-
al warning letters; discontinuance of benefits;
reduction of hours of work; and transfer of work
out of the bargaining unit.
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment, with Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local
No. 551, Independent, as the exclusive bargain-
ing representative of our employees in the fol-
lowing appropriate unit: All petroleum tanker
drivers employed by Westpoint Transport, Inc.,
excluding all other employees and supervisors as
defined in the National Labor Relations Act, in-
cluding, but not limited to, the following mat-
ters: restricting use by said employees of compa-
ny telephone credit cards; issuance of individual
letter of warning relative to restriction of use of
company telephone credit cards; and transfer of
work to a person outside the aforesaid bargain-
ing unit.
WE'WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them in Section 7 of
the Act.
WE WILL, upon request, bargain with the
above-named labor organization as the exclusive
representative of all employees in the aforesaid
appropriate bargaining unit, with respect to
rates of pay, wages, hours, and other terms and
conditions of employment.
WE WILL rescind and expunge from our files
and records, the following bulletin and letters,
and all references thereto:
1. Bulletin to all Westpoint tanker drivers,
dated August 16, 1974.
2. Letters dated August 20, 1974, addressed
to Frank, Gene, Bill Lamb, Arvel.
3. Letter to Frank Foreman, dated August
27, 1974.
4. Letter to all transport drivers, dated No-
WESTPOINT'TRANSPORT, INC.
vember 5, 1974.
5. Letter to Gene Woods, dated November
5, 1974.
6. Letter to all transport drivers, dated Sep-
tember 12, 1974.
WE WILL make whole employees Foreman,
King, and Woods, whose work Respondent dis-
criminatorily reduced,- for any loss of earnings,
including interest at.6 percent per annum, they
may have sustained as a result of the discrimina-
tion Respondent practiced against them.
WESTPOINT TRANSPORT, INC.
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge: This
matter was heard at Boise, Idaho, on March 18, 19, and 20,
1975.1 The complaint,2 issued January 31, 1975, is based
upon a charge filed on December I1 by International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local No. 551, Independent,
hereinafter referred to as the Union. The complaint, as
amended, alleges that Westpoint Transport, Inc., hereinaf-
ter referred to as Respondent, violated Section 8(a)(1), (3),
and (5) of the National Labor Relations Act, as amended,
hereinafter referred to as the Act.
Issues
The principal issues herein are whether Respondent, by
various threats and other actions of a coercive and restrain-
ing nature, violated Section 8(a)(1) of the Act; whether Re-
spondent laid off an employee and through other actions
discriminated against employees in violation of Section
8(a)(3) of the Act; and whether Respondent failed and re-
fused to bargain with the Union in violation of Section
8(a)(5) of the Act.
All parties have been given full opportunity to partici-
pate, to introduce relevant evidence, to examine and cross-
examine witnesses, and to argue orally. Briefs, which have
been carefully considered, were filed on behalf of the Gen-
eral Counsel and Respondent. Upon the entire record,3
and from my observation of the witnesses and their de-
meanor, I make the following:
FINDINGS, OF FACT
347
material herein, in the course and conduct of its business
operations has purchased and caused to be transferred and
delivered to its Boise facility goods and materials valued in
excess of $50,000, which were transported to said facility
directly from States other than the State of Idaho. I find
that Respondent is, and at all times material herein has
been, an employer within the meaning of Section 2(2) of
the Act, engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local No. 551,
Independent is, and at all times relevant herein has been, a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background
Farris C. Lind owns eight corporations engaged primar-
ily in the transportation, distribution, and sale of gasoline,
oils, and other products in Idaho and elsewhere. Included
among the eight corporations are seven corporations' oper-
ating about 35 gasoline service stations, and a corporation
named Fearless Farris Wholesale, which is a distributing
company. In the fall of 1973, Fearless Farris Wholesale,
acting as a corporation, bought Westpoint Transport, Inc.
(hereinafter Westpoint) in order to acquire the latter's com-
mon carrier rights for hauling general freight within the
State of Idaho. The purpose of the acquisition was to aid
Farris Lind in efforts to expand his operations.
Prior to 1968 Farris Lind did not own or operate any
petroleum tankers to haul petroleum for his own busi-
nesses; he hired common carriers to do his hauling. In that
year he hired Neal R. Olson (hereinafter Olson) as vice
president and general manager of the eight Farris Lind
corporations. In 1968 Fearless Farris Wholesale purchased
its first tanker to haul petroleum products for the Farris
Lind businesses, and hired Don Grandjean (hereinafter
Grandjean) as the first driver. A second tanker was pur-
chased in 1969, and Randy Lind (hereinafter Randy, 'a son
of Farris Lind) was hired to drive it. A third tanker was
purchased in 1969 or 1970, and a third driver was hired
(Arvel King, hereinafter King). Other tankers were pur-
chased thereafter, and as additional tankers were pur-
chased, drivers were hired to drive them. As of the time
Fearless Farris Wholesale acquired Westpoint in 1973 the
former owned six tankers, engaged exclusively in hauling
1. THE BUSINESS OF RESPONDENT
Respondent is, and at all dines material herein has been,
an Idaho corporation with offices and places of business
located in Boise and elsewhere in the State of Idaho. Re-
spondent is engaged in the sale, distribution, and transpor-
tation of gasoline, oil, and other products, and during the
past 12 months, which period is representative of all times
1 All dates hereinafter are within 1974, unless stated to be otherwise
2
As amended at hearing, pursuant to General Counsel's letter of March
13, 1975, addressed to counsel for Respondent (G C Exh 2)
3 Motion to Strike Testimony of Leslie Emerson relative to alleged state-
ments of Mrs Farris Lind was filed by Respondent May 23, 1975, on the
ground that said testimony is inadmissible hearsay Good cause appearing
therefor, said Motion hereby is granted
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
petroleum products for Farris Lind's own businesses. The
six drivers were Grandjean, King, Frank Foreman (herein-
after Foreman), and three others with whom this case is
not concerned.
After Fearless Farris Wholesale purchased Westpoint,
with its common carrier license, Westpoint expanded and
purchased much new equipment, and began to haul petro-
leum products for outside businesses not related to the Far-
ris Lind group. Included among Westpoint's equipment in
mid-1974 were about 30 tractors and trailers used to haul
general freight and potatoes-the latter pursuant to a then
recently negotiated contract. Also included were tanker
trucks, with one at Pocatello, two at Burley, one in Spo-
kane (Washington), and four at Boise.
Olson is now, and at all times since the Westpoint pur-
chase by Fearless Farris Wholesale in 1973 has been, vice
president and general manager of Westpoint, with manage-
rial responsibility for Westpoint in addition to his duties
relative to the 35 Farris Lind gasoline service stations. His
Westpoint manager is Edwin Evans (hereinafter Evans),
whom he hired in May 1974 as business increased. Olson
is, and at all times material herein has been, Evans' imme-
diate supervisor. Barry J. Peterson (hereinafter Peterson)
was Olson's assistant at Fearless Farris Wholesale, and of-
fice manager of all eight Farris Lind corporations, through-
out all of 1974 and until approximately the first of March
1975, at which time he was transferred by Olson to West-
point and assigned specific responsibility for petroleum de-
liveries to retail' gasoline service stations.4 Lonnie Miller
has been employed by Farris Lind about 20 years, and
presently is on the payroll of Fearless Farris Wholesale as
supervisor of some retail gasoline stations. He has never
been employed by Westpoint, and never has had authority
to hire and fire at Westpoint.5
The eight Farris Lind corporations employ approximate-
ly 100 persons, which increases to about 120 during potato
season. Corporate offices are located at 300 North Orchard
in Boise, Idaho.
King was employed by Fearless Farris Wholesale in
1970 as a tanker driver, and was transferred to Westpoint
when the latter Company was purchased by Fearless Farris
Wholesale in 1973. He remained in the same position with
Westpoint until institution of these proceedings .6 Eugene
Woods (hereinafter Woods) was employed by Fearless
Farris Wholesale in September 1973 as a tanker driver, and
later that year or in early 1974 was transferred to West-
point. He drove tankers for Westpoint until January 7,
1975, when he was laid off by Olson. He drove two loads of
gasoline the Monday following his layoff, but has not been
It is clear from the record, and it is found, that Olson, Evans, and
Peterson all exercise managerial authority, with authority to hire and fire,
and are supervisors within the meaning of the Act
5 It is found that Lonnie Miller is a supervisor within the meaning of the
Act for Fearless Farris Wholesale.
6 General Counsel moved near the close of hearing to amend the com-
plaint to add an allegation of King's constructive discharge by Westpoint.
That motion was denied because it represented an action independent of
others alleged and tried during the proceedings herein Its presentation, and
Respondent 's defense thereto, would have required investigation , prepara-
tion, and trial of matters not already anticipated or litigated , and it would
have been an unexpected and unfair burden upon Respondent to litigate the
matter on March 20, 1975
recalled for work since that day. Foreman was hired by
Westpoint as a driver on May 21, 1973, and presently con-
tinues in that same position. Randy for several years has
been a trainee in Farris Lind's various businesses, and has
worked throughout the organizations, in the office and in
the field. He was working for the corporations when Olson
started work in 1968, and began driving tanker trucks in
1969. He then drove tankers approximately 2 years, after
which he did other jobs for the corporations. He began
hauling dry cargo in the spring of 1974, and thereafter re-
turned to tanker driving, as discussed below. Until recently
Randy was secretary-treasurer of Fearless Farris Whole-
sale, and at all times since his first work with the corpora-
tions his father, Farris Lind, primarily has supervised
Randy's employment locations. Randy presently is em-
ployed as a tanker driver.
By letter dated May 30, 1974, addressed to Olson at
Fearless Farris, Inc., Evertt Byers (hereinafter Byers) rep-
resenting the Union (Local Nos. 483, 551, and 983) re-
quested recognition as the exclusive bargaining representa-
tive of all tanker drivers of Fearless Farris, Inc. Said
recognition was refused and on August 12 an election was
conducted at Westpoint. Olson was notified on August 13
or shortly thereafter that the Union had won the election
by vote of three to two. As a result of the election the
National Labor Relations Board on October 24 certified
said Locals Nos. 483, 551, and 983 as the joint exclusive
bargaining representative for all Westpoint petroleum
tanker drivers. Thereafter said representative and West-
point held two negotiation sessions , on November 12 and
on January 23, 1975. No contract was concluded, and there
was no discussion of, or negotiations relative to, telephone
credit cards, issuance of letters of warning, or transfer of
work, then or at any later date.
A. Alleged Reduction of Wages
The complaint alleges that, on or about August 14, Re-
spondent told its employees that wages would be cut and
that another employee would be added to the work force,
thereby reducing hours of work, because of insistence by
the employees upon union representation. The complaint
also alleges that, in early September, Respondent imple-
mented its statement about putting on an extra employee.
King testified that, on or about August 15, he was in
Olson's office with Olson, Foreman, Woods, and Ron Car-
ter (hereinafter Carter, who is Westpoint's attorney). He
said Olson was "pretty unhappy," and told the employees
that, if they continued with their union activity, "Our hours
and our wages would be cut and they'd have to hire a
dispatcher and bring in a fourth driver because we can
only run about 60 or 70 hours a week." King testified that,
in another conversation in Olson's office in late August,
attended by Olson, King, Foreman, and Woods, Olson
said the Union was not necessary and that he would have
to have an answer from them that day as to whether they
would continue to press for a union, because if they contin-
ued he would bring Bill Lamb (hereinafter Lamb, a tanker
driver employed by Westpoint) from Pocatello to Boise .7 If
7 Thereby diluting the amount of work available for the Boise drivers.
WESTPOINT TRANSPORT, INC.
they discontinued their union support, Olson said, Lamb
would be left in Pocatello.
King testified that the employees declined to drop their
union support, and there is no dispute that Lamb was
transferred from Pocatello to Boise for work as a tanker
driver commencing September 11. King said Lamb took
over some of the routes out of Boise that King had been
driving, and that his earnings thereby were reduced.
Foreman corroborated King's version of the two meet-
ings held by Olson in his office during August, and testified
that, after Lamb was transferred to Boise, he took some of
the loads usually carried by Foreman and thereby reduced
Foreman's earnings.
Woods also corroborated King's version of the two
meetings in Olson's office, and testified that, after Septem-
ber 11, Lamb took over some of the hauls usually carried
by Woods and thereby caused a decrease in Wood's in-
come.
Olson denied the testimony that he threatened to bring
another driver to Boise and to reduce the wages of King,
Foreman, and Woods, and explained Lamb's transfer to
Boise by stating that, upon arrival of a truck that had been
on order, he found himself with four trucks and only three
drivers. He said he would have put another driver on at
Boise to drive the fourth truck in any event, and that he
brought Lamb from Pocatello because Lamb was having
business and personal problems there and wanted to move
to Boise, where he would be near his family. Further, Olson
wanted to move Lamb because of the adverse effect
Lamb's problems were having on business. Olson said he
had been considering Lamb's transfer for some time prior
to the transfer or September 11.
Lamb testified that he called Olson on the telephone,
about the second week in August, and told Olson he was
having "trouble with one of the stations." Olson replied it
was just as well, since he had been meaning to call Lamb to
inquire if he would be interested in transferring to Boise to
drive a tanker truck there. Lamb said he asked if that
would not cut down on the work for other drivers, and
Olson replied that it would shorten their hours, but to leave
that to Olson. Lamb said he would think about it, and he
later called Olson about the third week of August and Ol-
son said the three drivers in Boise were thinking ' about
giving up their support of the Union if Lamb would stay in
Pocatello. After further discussion over the next few days
Olson instructed Lamb, "Fly ahead, I can't get an answer"
(Note: from the three Boise drivers), and Lamb moved to
Boise September 11. Thereafter, Lamb drove a tanker
truck as dispatched by Olson, although he said he experi-
enced considerable difficulty with other drivers, particular-
ly King' because Lamb was taking some of the other driv-
ers' loads.
Dianne King, Arvel King's wife, testified that she is a
bookkeeper and that, since King began to work for Farris
in 1970, she has consistently kept the family books. Her
records (G.C. Exh. 20) show a decrease in King's earnings
at Westpomt commencing September 1974, and that de-
crease is supported by Respondent's Exhibit 1.
Carter did not testify concerning any conversation at a
meeting in August relative to this subject.
349
Analysis
A basic consideration in assessing credibility, and in an-
alyzing this and all charges discussed below, is that of
union animus. Olson denied having such animus, denied
the various antiunion statements and threats attributed to
him by General Counsel's witnesses, and denied taking any
actions on the basis of union activity. However, Olson tes-
tified, "I've never attempted to keep it a secret that as far
as we are concerned, we would prefer to deal with our men
directly rather than through the Union," and he said he
expressed to them on several occasions concern about the
Union "being between us." He testified he also told the
drivers, "I cannot understand the need of a third party to
negotiate when you're here in my office every morning."
Olson did not testify concerning, nor did he deny the testi-
mony of, King, Foreman, and Woods that in August he
placed the Union Notice of Election on his office couch,
told them as they came in that that was as far as the notice
would go, and never posted the notice thereafter, any place
in the office or on the premises. The testimony of the three
drivers on this point thus is credited. Finally, Olson ac-
knowledged that, as a result of a labor dispute at two of the
Fearless Farris stations in about May 1973 in which Olson
was directly involved, the Board issued a bargaining order
directed to the corporations "as though an election had
been held and we lost." Under such circumstances the con-
clusion is inescapable that Olson harbored union aniums at
all times, relevant herein, and it is so found. In addition,
specific union animus was demonstrated by Olson on sev-
eral occasions, as more fully set forth below.
The fact of Lamb being transferred to Boise, and the fact
of a decrease in King's wages after Lamb was transferred,
is well established by the record.' In dispute is the reason
for the transfer, and the reason for the decrease in wages.
The statements by Olson that he intended to reduce wag-
es and bring in a fourth driver clearly constituted a threat
under the circumstances. Olson denied the statements, but
the testimony of King, Foreman, and Woods is credited.
Carter was present at the first meeting testified to by King,
Foreman, and Woods, but his testimony makes no refer-
ence to this subject, either by way of corroboration or deni-
al. It is found that the alleged statements were made as
stated by the three employees, and that the statements were
a threat made because of the union activity of the employ-
ees.
Respondent contends that the reason Lamb was trans-
ferred to Boise was because a fourth driver was needed for
the fourth truck that had been acquired. However, Respon-
dent also contends that the reduction in wages experienced
by King, Foreman, and Woods following Lamb 's transfer
to Boise is explained by Respondent's drop in business, as
shown in Respondent's Exhibit 1. If business had dropped
to the extent claimed by Respondent, a fourth driver may
well have been unnecessary, but said Exhibit I is question-
able and possibly misleading, for at least two reasons.
First, King testified that the gasoline business is seasonal,
8 The testimony of Foreman and Woods that their wages were reduced
after Lamb was transferred to Boise is supported by Resp . Exh. 1, and is
credited
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and normally drops off from the latter part of November
until the first part of March. That testimony was not ques-
tioned on cross-examination, and it is credited. Second, the
Exhibit shows that Randy earned far more than all the
other drivers during the months of December, January,
and February. Olson explained that situation by stating
that Randy intentionally was favored at the request of Far-
ris Lind, but the fact remains that Randy's disproportion-
ate share of the work was gained at the expense of the
other drivers. Olson's explanation for Randy's favored
treatment was that Randy recently had been divorced and
needed the money, and that, at Farris Lind's request, he
transferred Randy from driving dry haul trucks to driving
tanker trucks when Lamb quit November 2.1 Olson said he
needed the fourth driver for the fourth truck. However,
according to Respondent's Exhibit 1, the Company had
experienced a drop in business for two consecutive months
before Lamb quit (7.14 percent in September and 15.3 per-
cent in October), and showed further continuous loss in
November (4.1 percent). This was Olson's second opportu-
nity to bring expenses into line with income, but the oppor-
tunity was ignored. He not only hired another driver while
his business allegedly was dropping off quite substantially
and steadily, he gave that driver favored treatment.
It is clear from the foregoing that the placement at Boise
of Lamb and, later, Randy, is consistent with Olson's want-
ing to discriminate against King, Foreman, and Woods.
His explanations are not credible. The testimony of King,
Foreman, and Woods that they were threatened by Olson,
as summarized above, is consistent with the record show-
ing an intent, and actions, on the part of Olson to discrimi-
nate against them by using Lamb and Randy, and is cred-
ited.
It is found that the allegations of Paragraphs 7, 8, and 15
of the complaint are proved.
B. Alleged Threat Not To Permit Unionization
The complaint states that, on or about August 14, Olson
told employees that Respondent would not permit union
representation among its employees.
King testified to several instances wherein Olson ex-
pressed his opposition to, and antagonism toward, unions
and said Olson told him in a meeting in Olson's office
about August 15, when Foreman, Woods, and Carter were
present, "Before we could get the Union in, hell would
freeze over." Foreman and Woods corroborated King's
testimony. Carter testified, but said nothing about King's
testimony quoted above, in corroboration or denial. Olson
denied having made the statement. The testimony of King,
Foreman, and Woods is credited.
It is found that the allegations of Paragraph 9 of the
complaint are proved.
C. Alleged Change of Work Rules
The complaint alleges that , on or about August 14, Ol-
son told its employees that Respondent intended to change
' Olson said Randy was considered to have seniority for the job because
he had many years' experience driving for the Lind corporations
its work rules and issue written work rules because of their
insistence on union representation. The complaint also al-
leges that, on or about August 16, Olson implemented his
statement.
King testified that he, Foreman, Woods, Olson, and Car-
ter met in Olson's office about August 15,10 and that Olson
stated, "He would have to lay down some strict rules and
we had to abide by them or it would be grounds for termi-
nation." The rules he referred to were those of sticking
tanks," use of daily logs and tach sheets,12 parking trucks
at the 300 North Orchard office when not on runs, and
using drip buckets.13 King said Olson was reading the rules
from a yellow tablet he held, and that, about 2 or 3 days
later, the employees received the rules in a bulletin.14 King
said that, prior to the time of the meeting, tank sticking was
not done regularly as policy, and was followed only with
untrained or unreliable customers, usually about two or
three times each week; that tach sheets were used only on
long hauls, and were turned in about once each week; that
logs were turned in once or twice each month; that trucks
were driven home by the drivers when not on runs, with
Olson's full knowledge and consent; and that use of drip
buckets was sporadic. King acknowledged that use of drip
buckets was a company policy; that his failure to stick a
tank once resulted in an overflow, and that such a result
may follow failure to stick tanks; that gasoline drip causes
deterioration of asphalt and results in fire hazard; and that
tach charts and logs are required of common carriers by
Federal regulations. He said he did not know, until after
the rules were written, of any problem with the city of
Boise about parking trucks. Foreman and Woods testified
essentially the same as King, the only notable exception
being that Woods stated on direct examination that he re-
called Olson saying at the meeting of August 17 that he
was going to prepare a written list of work rules, but he
stated on cross-examination that he did not remember Ol-
son making such a statement. Olson denied that he told the
drivers written rules would be promulgated, and he said the
rules were prepared by him, and typed by his secretary on
August 16, in the normal course of business without any
relationship to union activity.
Analysis
King, Foreman, and Woods testified to the alleged state-
ments by Olson at the August 17 meeting, 15 and their testi-
10 The date of this meeting is in dispute King, Foreman, and Woods said
the meeting was on August 15 at 7 a in, before the written rules were dis-
tributed to the drivers Carter credibly testified that the meeting was held
August 17 It is found that the meeting was held on Saturday, August 17
This finding , however, is not dispositive of the issue , as discussed hereinaf-
ter
11 Measuring gallonage before filling storage tanks.
2 Instrument speed sheets.
iJ Buckets to catch drips of gasoline after using hoses and valves , to pre-
vent damage to asphalt driveways
14 G C Exh 5 is the bulletin King referred to. No written work rules
previously had been prepared or distributed
15 Woods so testified on direct examination, but testified somewhat differ-
ently on cross-examination No weight is assigned to the discrepancy be-
cause it was apparent that Woods was confused at this point in his cross-
examination.
WESTPOINT TRANSPORT, INC.
mony is credited,16 as more fully explained below. Olson's
denial, in the face of the three employees' testimony and in
the absence of any comment by Carter, who was present, is
not credible.
Respondent contends that no threat was involved, and
that the proposed written rules were no different from what
previously had been in effect, or had been required by gov-
ernmental agencies. However, that defense is without merit
for two reasons. First, even though there may have been
unwritten rules, and some or all of them valid, the employ-
ees had no way of knowing whether the threatened written
rules would be the same as the oral rules of the past, or
whether additional rules, possibly invalid or onerous, or
both, would be added. Second, it is clear that that threat
was not merely to issue written rules; it was to issue such
rules because the employees were engaging in union activi-
ty against Olson's wishes.
It is found that the allegation of threat is proved.
Respondent seeks to show that the written rules were
prepared 17 and distributed 1 day prior to the meeting (thus
that the testimony of King, Foreman, and Woods is not
credible), and that the rules were not issued pursuant to a
threat to do so. Testimony of Olson and his secretary, Les-
lie Emerson, is relied upon by Respondent to establish that
the rules were prepared and typed August 16, the day be-
fore the meeting of the 17th. That testimony may or may
not be true, but even if true, it does not settle the issue.
King was not positive, but he thought the meeting with
Carter and Olson was held on the 15th. Foreman and
Woods seemed sure of the date being the 15th. However,
all three of them were positive that the meeting was prior to
their receipt of the written rules, and King credibly testi-
fied that Olson was reading the rules from a yellow tablet
at the meeting. The testimony of the three drivers has
strong support in General Counsel's Exhibits 5 and 6. The
rules, Exhibit 5, state in part "As per our discussion, will
you please observe the following requirements of opera-
tions." Exhibit 6, a letter to the three drivers, states in part
"You will recall that on Monday, August 19, 1974, I gave
you a list of `Requirements of Operation,' to be observed
by each of our drivers." The import of those two state-
ments is obvious. Olson discussed the proposed rules be-
fore the rules were given to the drivers. Olson's attempts to
explain the statements away were weak, and not credible.
It is entirely reasonable to conclude that Olson was reading
at the meeting from a draft, and that the rules were not
actually distributed until the following Monday.
Two things are certain. First, written rules were prepared
and distributed to the tanker drivers, and second, prior to
that distribution Respondent had no written rules for the
drivers, The record amply shows that Olson was well aware
of union activity on Respondent's premises at all times
from at least May 1974. The meeting with the drivers on
August 17, promulgation of written rules, the union elec-
tion of August 12, and several incidents testified to by wit-
nesses as having occurred in August, clearly establish that
union business was very active, and uppermost in Olson's
16 Foreman was a particularly impressive and credible witness His testi-
mony throughout the proceedings is given credence.
17 Olson's contention that the written rules were prepared at the sugges-
tion of labor counsel is given no weight.
351
mind as of August 17. Olson offered no credible explana-
tion for selecting that date to promulgate written rules after
operating (together with Respondent's predecessor, Fear-
less Farris Wholesale) without them since 1968. Olson's
umon animus is clear and well-demonstrated, as discussed
above. In light of these circumstances, it is clear that writ-
ten rules were promulgated by Olson in order to discrimi-
nate against the drivers because of their union activity and
his denial of that intent is not credited. Carter's testimony
that the drivers stated at the meeting of August 17, in re-
sponse to his inquiry, that they did not feel they had been
threatened, coerced, restrained, or promised anything, is
accorded no weight. Assuming, for the sake of argument,
that the written rules were dated prior to the meeting, as
argued by Respondent, that fact does not close the subject.
The determinative fact is whether the rules were reduced to
writing in order to interfere with union activity. It is clear
that they were.
It is found that the allegation of the complaint (pars. 10
and 12) that the written rules were promulgated because of
the drivers' insistence upon umon representation is proved.
D. Alleged Transfer of Dispatching Work
The complaint alleges that, on or about August 14, Ol-
son told Respondent's employees he would transfer dis-
patching work done by King, because of insistence by the
employees upon union representation. It is alleged that the
threat was carried out on or about August 16.
King testified that, prior to about August 16 or 17, he
routinely telephoned Farris service stations in the morn-
ings, to inquire about their gasoline requirements. He said
the practice began when,he was the only tanker driver at
Boise between October 1970 and late 1972. King said he
determined which stations needed gasoline, and after other
drivers began to haul with him, he would take the runs he
wanted and the other drivers would take' the remaining
runs. King stated that he did not always make the tele-
phone calls-sometimes they were made by Olson (about
40 percent of the time). Return calls, or calls about gaso-
line, when King was out of the office, were taken by Olson
or the girl in the office. King said he got the pick of the
loads because he was the senior driver, and that he selected
the best and most lucrative runs. When Olson made the
calls prior to about mid-August, he would leave it up to the
men to decide who took the runs, on a cooperative basis.
King never dispatched trucks or drivers to any specific ser-
vice station. King testified that Olson stated in the group
meeting (found to have been held August 17) that he was
going to hire a dispatcher, and that Olson took the calling
detail away from him in August, after the written rules
were distributed and that thereafter an employee was hired
to do actual dispatching. The new dispatcher did not sim-
ply call on the telephone to ascertain station requirements
as King had done. The dispatcher left after a couple of
weeks and Olson took over the work, which he did for
about a month and a half. Ted Evans then assumed the job
until it was taken over by Barry Peterson in the early part
of 1975.
Olson generally corroborated King's testimony about
the calling system prior to August, and said a change, in-
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
volving employment of a regular dispatcher, was made be-
cause King was away from the office on hauls an increas-
ing part of the time and this caused inconvenience to Olson
and customers. Olson denied saying during the August 17
meeting that he was going to hire a dispatcher. He said the
only compensation King got for taking calls was his choice
of loads to haul.
Carter testified about the August 17 meeting, but said
nothing either way about the telephoning done by King or
about Olson's alleged statement that he was going to hire a
dispatcher.
Analysis
There is no dispute about the nature of the telephoning
task done by King, nor about the fact that it was taken
from him just after the written rules were promulgated in
August. King's testimony that Olson said in the meeting of
August 17 that he was going to hire a dispatcher is cred-
ited. Since King (and thereby, Foreman and Woods) previ-
ously had a definite benefit or privilege from taking his
choice of runs, it is clear that the hiring of a dispatcher
would relieve him of that benefit or privilege. It also is
clear, and found, that the reason Olson decided to hire a
dispatcher was because of King's union activities. The rea-
son Olson gave for the change is not convincing, because
of his union animus, his other statements and actions in
opposition to the Union and union adherents, and the fact
that King was on hauls less often after August than he was
before. As observed by the General Counsel in his brief,
the fact that King was not a dispatcher in the usual sense is
immaterial. It was the removal of a benefit or privilege
because of union activity that is dispositive of the issue.
It is found that this allegation of the complaint is proved
(pars. 11 and 12).
E. Alleged Issuance of Warning Letters
Paragraph 13 of the complaint alleges that, on or about
August 20, Olson wrote warning letters to Respondent's
employees concerning failure to observe the written rules
referred to above, and told them observance of the rules
was a condition of employment with Respondent.
The letters are General Counsel's Exhibits 6, 7, 8, and
10. There is no question about their authenticity, their
preparation by Olson, or their receipt by the addressees.
No violation of rules referred to in the letters was chal-
lenged, other than those described in the letter to Foreman,
General Counsel's Exhibit 10. Foreman credibly explained
that he damaged the gasoline terminal fill pipe on two oc-
casions-once several months prior to July 1974 (in cold
weather) and once in July 1974. He said such damage by
all drivers is common, and it is easy to do. Foreman said
neither incident was mentioned to him by Olson prior to
Olson's letter of August 27.
Analysis
The letters in issue cover subjects which, absent any
union considerations, would be legitimate items of business
concern. But for the reason they were issued, the letters
probably would not be legally objectionable. However, it is
clear that the letters were part of a plan to discriminate
against King, Foreman, and Woods because of their sup-
port of the Union. As found above, the rules were issued in
discrimination against the three drivers. The letters were a
follow-up of that issuance. There is no showing in the rec-
ord that any driver other than the three here involved ever
received a written letter of warning from Olson. These
three never had received such letters before, although King
had been employed by Olson since 1970, Foreman since
May 1973, and Woods since September 1973. Olson's letter
to Foreman (G.C. Exh. 10) is obviously, and intentionally,
misleading. It can be, and is, inferred that the letter was
written solely in order to make a record against Foreman.
Equally clear is the fact that the other letters were written
for the same purpose. In light of all the circumstances,
including Olson's union animus, the sudden flurry of let-
ters cannot satisfactorily be explained except as retaliatory
and discriminatory measures against union adherents.
It is found that this allegation of the complaint is proved.
F. Alleged Restriction of Credit Card Use
Paragraph 14 of the complaint alleges that, on or about
September 12 and at other times, Olson restricted employ-
ees' use of company telephone credit cards in retaliation
for their insistence upon union representation.
Testimony establishes the fact that King, Foreman,
Woods, and Lamb, prior to about September 12, were is-
sued company telephone credit cards, or were allowed to
use another driver's card number pending receipt of a card
after hire. There is conflicting testimony as to whether the
drivers ever received oral or written instructions to use the
cards only for business purposes, but that testimony is im-
material, since Olson testified that he regularly audited the
telephone bills, he knew that personal calls habitually were
made on the credit cards,is and he knowingly permitted
such personal calls because there had been no abuse of the
pnvilege.19 Olson said his review of the telephone bills dis-
closed that Woods had seriously abused the privilege, as a
result of which he required repayment by Woods of
amounts spent for personal calls. A further result of this
abuse was the issuance of bulletins to all transport drivers
prohibiting use of the credit cards for anything except com-
pany business. Olson said discontinuance of credit card use
by tanker drivers was not related in any way to union ac-
tivity.
Analysis
There is no controversy about the earlier permission of
personal calls on company credit cards, and the discontin-
uance of such permission on September 12 (G.C. Exh. 16).
Olson acknowledged that credit cards were not reissued to
1s Olson said he, too , sometimes used his company credit card to make
personal calls when he was on company business trips.
19 Olson's testimony on this subject was inconsistent He stated on one
occasion "Now, we have never knowingly permitted one of our people to
steal by using a credit card . . " However, it is clear by his later testimony
that he knew personal calls were made on the cards. He said "So some of
our men did that, and I was aware of it and I didn't do anything about it"
WESTPOINT TRANSPORT, INC.
King, Foreman, and Woods for 1975. Olson gave four sep-
arate statements about discontinuance of the privilege. He
first stated on direct examination by the General Counsel
that the Boise drivers no longer have credit cards because
"They have no need of them." He said in explanation `Be-
cause they're not calling the accounts, as sometimes they
have had to do in times past." 20 He testified on direct
examination that drivers had been instructed in writing
that credit cards were for business use only. That same
language is used in General Counsel's Exhibits 13 and 16.
He testified on direct examination that drivers' cards were
not reissued "because since we've had a dispatcher why
they've really had no use for a . . . . No need for a credit
card." Finally, he testified on recall that use of the cards
first was questioned because of abuse of the privilege to
make personal calls. However, neither King nor Foreman
abused their card privilege, yet their cards were restricted
and later withheld.
It is found that the privilege to use company telephone
credit cards for occasional personal calls by tanker drivers
is well established by the record, including Olson's testimo-
ny in support of testimony by King, Foreman, and Woods.
It is also found that the privilege was abused by Woods,
and that discipline of Woods in some manner would have
been warranted.
However, Olson's denial that the discontinuance of the
privilege explained above was related to union activity is
not credible. The discontinuance occurred shortly after the
union election; it was done at or about the same time Ol-
son took several other discriminatory steps to put pressure
on King, Foreman, and Woods; Olson's union animus is
clear, as explained above; and Olson's testimony on this
subject is inconsistent.
It is found that this allegation of the complaint is proved.
G. Alleged Letter of Warning
Paragraph 16 of the complaint alleges that, on or about
November 5, Olson issued a letter of warning to an em-
ployee for violation of Respondent's restriction of tele-
phone credit card use.
Testimony of Woods and Olson, supported by General
Counsel's Exhibit 17, clearly shows that Woods did, in fact,
abuse the credit card privilege under any reasonable stan-
dard of measurement. That conclusion is supported by the
testimony of King and Foreman concerning their use of
cards for personal calls. Common sense would dictate lim-
iting use of a company credit card to personal calls occa-
sioned by company travel away from home, and perhaps a
few other instances when the calls were somehow related to
company business or company travel. Woods, however, ap-
parently considered the card as a carte blanche privilege to
call whomever and whenever he wanted. He deserved to be
disciplined, but the fact that King and Foreman received
the same discipline so far as card use is concerned, under
the circumstances described above, makes it clear that at
least part of the reason for Wood's discipline constituted
20 This is a strange defense, in view of the fact that neither Foreman nor
Woods was shown to have called accounts on a regular basis as King had
done, yet credit cards were issued to them.
353
discriminatory action because of union activity.
It is found that this allegation of the complaint is proved.
H. Alleged Transfer of Work
Paragraph 17 of the complaint alleges that, about the
beginning of November, Respondent transferred work
done by its employees in the bargaining unit described
above, to a person outside the unit.
Farris Lind is Respondent's owner and Randy Lind is
Farris Lind's son. Thus, Randy Lind is not a statutory em-
ployee and is not a member of the bargaining unit of
Respondent's petroleum tanker drivers. Cerni Motor Sales,
Inc., 201 NLRB 918 (1973). Randy Lind also is excluded
from the bargaining unit because the special status he oc-
cupies and the special treatment he receives in
Respondent's employ preclude him from sharing a commu-
nity of interest with the other petroleum tanker drivers.
Parisoff Drive-In Market, Inc., 201 NLRB 813 (1973); Car-
avelle Wood Products, Inc., 200 NLRB 855 (1972).
Starting November 7 and continuing at least to the date
of hearing, Respondent transferred substantial quantities
of bargaining unit work to Randy, as discussed above,
without first consulting or notifying the Union. Respon-
dent thereby made significant unilateral changes in its em-
ployees' terms of employment. N.L.R.B. v. Benne Katz etc.,
369 U.S. 736 (1962).
Further, transfer of the work under the circumstances
described in section III, A above, clearly shows that the
transfer was effected to continue the discrimination against
King, Foreman, and Woods because of their union sup-
port, by using Randy for that purpose after Lamb quit.
It is found that this allegation of the complaint is proved.
1. Alleged Discontinuance of Annual Bonuses
Paragraph 18 of the complaint alleges that, about the
latter part of December 1974, Respondent 'unilaterally
ceased its practice of granting employees annual bonuses.
Testimony shows that year-end benefits given by West-
point and its predecessor, Fearless Farris Wholesale, to
tanker truckdrivers have been in two forms. Bonuses have
been irregularly given; $25 Christmas gift certificates have
been regularly given.
King testified that 1971 was the first full year he worked
for the Company. He said he received gift certificates each
Christmas, 1971 through 1974, and received bonuses' of
$300 in 1972 and $500 in 1973. Evidence shows that Fore-
man, who started as a driver in May 1973, received a $200
bonus in 1973 and Christmas gift certificates in 1973 and
1974. Woods started to work in November 1973, received a
$100 bonus in 1973, and received gift certificates in 1973
and 1974. Fox started in 1972, and received bonuses of
$200 in 1972, $300 in 1973, and $250 in 1974, as well as gift
certificates each year. Grandjean started in 1968 and re-
ceived bonuses of $400 in 1970, $400 in 1972, $500 in 1973,
and $250 in 1974, as well as gift certificates each year.
Randy started in 1970, and received a $400 bonus that
year, with none since. Irregular drivers have received ' no
bonus; Roy Espandola started in September 1974 and Er-
nest Moore started in July 1974 and neither of them re-
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ceived bonuses in 1974. Both of them did, however, receive
gift certificates in 1974.
Olson testified that bonuses are given strictly in accor-
dance with Farris' instructions, and that the year-end prof-
it and loss situation is a factor, although not controlling.
Other factors are personal qualifications of the drivers,
Farris' personal inclinations, driver performance, and
whether the drivers give Farris "peace of mind."
Olson testified that Fox and Grand^ean, who worked out
of the Burley terminal rather than Boise, were given bonus-
es in 1974 partially because they both had run their own
petroleum business for several years and thus knew many
accounts, and they solicited business in addition to driving.
Further, they drove their own cars on company business.
He said no other drivers solicit accounts, and drivers other
than Fox and Grandjean were not given bonuses in 1974
because Westpoint had a sizable loss that year. Olson testi-
fied that, as of the end of November 1974, Westpoint was
$87,000 "in the red," on a May 31 fiscal year basis. Olson
said Farris looked at the figures and said there was no
money for bonuses (other than Fox and Grandjean).
Analysis
Viewing the evidence as a whole, it is clear that the bo-
nuses here involved were gifts; they did not constitute
wages.
So far as the record shows, the subject of bonuses never
was discussed with employees, and certainly did not consti-
tute a condition of original or later employment. They were
given solely at the desire of Farris Lind, and no employee
reasonably could expect a bonus in any given year, or rely
upon receiving one.
There has been no regularity or consistency in the giving
of bonuses. King received a bonus 2 years out of 4; Fore-
man 1 year (from May) out of 2; Woods 1 year (from
November) out of 2; Fox 3 years out of 3; Grandjean 3
years out of 7; Randy 1 year out of 5; Roy Espandola none
(from September 1974); Ernest Moore none (from July
1974). Amounts of bonuses so given varied from $100 to
$500, and never were the same. Amounts are not tied to
any figure, statistic, or fact. Bonuses were not given in 1974
to all drivers because the Company suffered a sizable loss
that year-availability of money for bonuses is one of the
criteria used by Farris, according to Olson.
It is noted that not only King, Foreman, and Woods
were passed over for bonuses in 1974. Roy Espandola and
Ernest Moore also were passed. They only worked part of
the year, but Foreman and Woods were given bonuses in
1973 for only part-year work. Woods only worked about 2
months that year.
Finally, all tanker drivers, including King, Foreman, and
Woods, received Christmas gift certificates in 1974, regard-
less of length of service, and such certificates have been
regularly given for several years. The evidence does not
show that King, Foreman, and Woods did not receive bo-,
nuses in 1974 in violation of the Act.
It is found that Respondent has no bonus policy, that
bonuses given irregularly by Respondent are gifts and not
wages, and that this allegation of the complaint is not
proved.
J. Alleged Layoff of an Employee
Paragraph 19 of the complaint alleges that, on or about
January 7, 1975, Olson laid off an employee in retaliation
for union support.
The employee here involved is Woods, who testified that
he was laid off on the date alleged. He said he was told by
Olson that the layoff was of indefinite duration; that it was
occasioned by the sale of one of the trucks used at Boise;
and that without that truck there would not be enough
work for four drivers. Woods said he protested because of
his seniority, but to no avail. Woods said Olson told him
they may call him for work at a later date. Woods testified
that he was offered ajob as driver in Pocatello when Lamb
was being considered for transfer to Heyburn, but that he
refused the offer. The date of the offer is not certain, but
Woods said it was after August 1974. Woods said he
turned down haul jobs to Canada and to California, and he
did work on two occasions for Respondent, after his layoff.
Olson testified that he had an opportunity in January
1975 to sell a truck for $20,000 that had been purchased for
$13,500. He said business was slow, a fourth truck was not
necessary at the time, and Westpoint's profit picture then
was not encouraging. He therefore decided to sell the
truck, which left him with four drivers for three trucks. He
selected Woods for layoff, and Olson denied that the layoff
was related in any way to union activity.
Analysis
The evidence is inadequate to show that Woods was laid
off because of his union activity. The sale of a truck at
Boise under the circumstances described by Olson was not
challenged, and Olson is credited on this subject. It is ac-
knowledged that Woods did two jobs for Respondent after
his layoff, and that he turned down other offers for hauls.
General Counsel's contention that Olson should have
called Woods when King was not available for hauls, and
that such failure on Olson's part discredited Olson's con-
tention that there was not enough work for Woods, avoids
the issue. Woods was on layoff, and if King could not haul,
the logical solution for Olson was to assign the haul to
another driver not on layoff.
General Counsel's contention in his brief that Olson
wanted to get rid of Woods because of the latter's support
of the Union, and discharged Woods on January 7, 1975, is
not supported by the facts. There is no indication in the
record that Woods was discharged. Woods acknowledged
that he made two gasoline hauls for Olson after he was laid
off, and that he turned down Olson's offer to make long
distance hauls of dry cargo. That testimony is not consis-
tent with a discharge. Further, Woods testified that he was
offered the Pocatello job, a permanent one, when Lamb
was being considered for transfer to Heyburn, sometime
after August, but turned it down.21 If it was Olson's desire
to force Woods off the payroll by bringing Lamb and Ran-
dy to Boise, he would not accomplish his goal by transfer-
ring Woods to Pocatello, where Woods would be assured
21 The threat by Olson to bung in another driver for Boise was made on
August 17, before Woods was offered the Pocatello fob.
WESTPOINT TRANSPORT, INC. 355
of an income, free from competition. Pocatello was a one-
driver job.
It was found, above, that Lamb and his successor Randy
were brought to Boise by Olson pursuant to Olson's threat
to reduce the wages of the other drivers. General Counsel
contends that Woods' layoff, allegedly for lack of work, is
a sham and no defense to the allegation of the complaint
here being considered, because the layoff is a result of
Lamb and Randy's transfer to Boise. However, a non sequi-
tur is involved in that argument. There is no evidence that
the sale of the truck was envisaged by Olson prior to about
the time of sale. Further, there is no evidence that Olson
wanted to see Woods off the payroll, The fact that Olson
wanted to punish the drivers by reducing their wages does
not compel the conclusion that Olson wanted to terminate
Woods. The decision to lay Woods off arose well after the
reduction of wages, and in an entirely different context.
Olson credibly testified that he did not need four drivers
for three trucks. The argument that ensued about seniority
for layoff purposes is beside the point. In the first place, no
seniority system was shown to exist. In the second place,
even had there been such a system, there is no showing that
Woods was entitled to retain his job over some other driv-
er.
Under the circumstances it is clear that Woods was laid
off for valid business reasons not related to union activity,
and that this allegation of the complaint is not proved.
K. Alleged Interrogations
Paragraphs 20(a) and 20(d) of the complaint allege that,
about mid-July, Olson interrogated an employee about
union activity.
Lamb testified that, when he was interviewed for a job
by Olson in early May, Olson asked him if he then or
earlier had any union affiliation, if Lamb felt a union was
necessary for the job Lamb was applying for, and what
Lamb's personal feelings were about a union. Lamb testi-
fied that, after he was hired and on the job in Pocatello
about mid-June, Olson called him on the telephone and
again asked about Lamb's personal feelings concerning the
Union. Lamb said Olson again asked him the same sort of
questions the first or second week of July, and in mid-
August asked Lamb how he had voted in the union elec-
tion.
Olson denied the foregoing alleged interrogations. Lamb
was an impressive witness. His testimony is credited.
It is found that these allegations of the complaint are
proved.
L. Alleged Interrogations
Paragraphs 20(b) and (g) of the complaint allege that, on
several occasions in about July, August, and November,
Olson interrogated employees about, and created the im-
pression of having surveilled, umon activities.
King testified that Olson interrogated him several times
in July and throughout the summer to ascertain who the
union ringleader was and to learn about King's union ac-
tivities. King said Olson told him to find out who was be-
hind the union activity. King said he approached Olson in
November to solicit business for King's new mobile wash,
and Olson replied that he would not be able to help be-
cause "We know for a fact that you've been talking to the
Union." Olson then allegedly further interrogated King as
to whether Olson's belief that King had been talking with
the Union, was true.
Olson denied the foregoing allegations. King is credited.
It is found that these allegations of the complaint are
proved.
M. Alleged Encouragement of an Illegal Vote
Paragraph 20(c) of the complaint-alleges that, in early
August, Olson and Peterson encouraged and allowed a
nonunit employee to vote in a umon election.
Lamb 22 testified that, in about the third week of July,
Peterson asked him if he would be interested in transfer-
ring to Heyburn to manage the station there. After some
negotiations between Peterson and Lamb, and Lamb's ac-
ceptance of the transfer, the latter asked Peterson in early
August why the proposed transfer was proceeding so slow-
ly, Lamb said Peterson replied that Lamb's vote was need-
ed in the union election, and that he was being held in
Pocatello until his vote was mailed in. Peterson told Lamb
the decision had already been made to transfer Lamb to
Heyburn, and that he (Peterson) had been authorized by
Olson to arrange the transfer. Lamb testified that Olson
told him the decision was up to Peterson.
Respondent argues that Lamb was kept in a driver's po-
sition until after he had voted because Respondent thought
moving him would look bad and perhaps violate a law.
Respondent's argument is not persuasive. Peterson's re-
marks to Lamb reveal that Respondent's officers well knew
that Respondent's actions were improper. There is no evi-
dence that Respondent's agents sought counsel on the le-
gality of the matter, although they were in frequent contact
with legal counsel on related matters. However, assuming
arguendo that Respondent's purpose was as stated, that is
no defense. An employer must proceed after the filing of a
representation petition as it would in the absence of such a
petition. The Gates Rubber Company, 182 NLRB 95 (1970).
Respondent failed to do so here.
Lamb ultimately did not take the job because of the de-
lay.
It is found that this allegation of the complaint is proved.
N. Alleged Solicitation of Grievances
Paragraph 20(e) of the complaint states that; on or about
August 14, Olson solicited employee grievances.
No testimony or evidence was introduced in support of
this allegation. It is found that this allegation is not proved.
0. Alleged Interrogation, Solicitation of Union Support
Withdrawal, and Threat
Paragraph 20(f) of the complaint states that, in about
late August, Olson interrogated employees about their
22 Lamb was an impressive witness, whose testimony is credited
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union activities and sympathies solicited withdrawal of
union support in exchange for improved wages or working
conditions, and threatened to reduce working hours unless
employees would forego union representation.
King testified as follows, corroborated by Foreman and
Woods: A meeting was held in Olson's office a few days
after the meeting of August 17, discussed above. Present
were King, Foreman, Woods, and Olson. The drivers en-
tered Olson's office for their daily assignments. Olson shut
the door and told the drivers they were all grown men and
should be able to discuss the Union. He interrogated the
men as to why they wanted union representation. The men
suggested they needed security and were unhappy that
waiting time at the terminal was not paid. Olson minimized
the drivers' concerns. Olson again told the men to reassess
whether they wanted to be affiliated with the Union. He
told the men of the stakes involved: If they went ahead
with the Umon, Respondent would bring in Lamb as a
fourth driver, cutting their earnings. However, if the men
would renounce the Union, Olson would leave Lamb in
Pocatello and "everything could be as it was" before the
union campaign. Olson persuaded the men to discuss the
matter, and they left the room to do so. Upon returning,
they informed Olson they were not ready to accept his of-
fer; they would need time to consider it. Olson approved,
but said he must have an answer by 10 a.m. the next day.
Olson then dismissed Foreman and Woods, and told King
to stay. He told King that, if the men would forget about
the Union, Respondent could pay them $4 per hour for
terminal waiting time. King, having heard Olson's, offer of
paid waiting time, gave the news to his colleagues at the
terminal. Concerned about developments, the drivers went
to their union representative to discuss Olson's offer.
Olson admits meeting with the men, discussing whether
it was too late for them to leave the Union, and making a
"suggestion" about the matter. Olson also admits talking
with King about paying the men for waiting time. Howev-
er, Olson denies having made any offers conditioned on
the drivers rejecting the Union.
The version of the meeting testified to by King, Fore-
man, and Woods is credited.
It is found that this allegation of the complaint is proved.
P. Alleged Refusal To Bargain
Paragraph 21 alleges that Respondent violated Section
8(a)(5) of the Act by failing and refusing to bargain with
the Union concerning the actions described in paragraphs
III, F , G, H, I, and J , above.
The appropriate unit and certification of the Union as
exclusive collective bargaining representative of the unit
are admitted by Respondent . There is no controversy
about the fact that all the actions alleged as having violated
Section 8(a)(5) were taken unilaterally by Respondent after
Olson had been notified that the Union won the election,
and were taken without bargaining with the Union.
It has been found that Paragraphs III, I (18 of the com-
plaint) and III , J (19 of the complaint) were not proved,
thus there was no duty to bargain relative to those para-
graphs.
It is found that the subjects covered by Paragraphs III,
F, G, and H, above, are conditions of employment, pro-
posed change of which must be submitted to the Union in
advance, for opportunity to bargain.
It is found that the changes discussed in Paragraphs III,
F, G, and H, above, were not submitted to the Union for
bargaining. Respondent thereby violated Section 8(a)(5) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The Respondent's activities set forth in section III
above, occurring in connection with the operations 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 in violation of Section 8(a)(1), (3),
and (5) of the Act, I shall recommend that Respondent be
ordered to cease and desist therefrom, and from any other
manner infringing upon its employees' Section 7 rights,
and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Upon the basis of the foregoing findings of fact and the
entire record, I make the following:
CONCLUSIONS OF LAW
1. Westpoint Transport, Inc., Respondent herein, is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local No. 551,
Independent, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By the following words and acts Respondent inter-
fered with, restrained, and coerced its employees in the
exercise of their rights guaranteed to them by Section 7 of
the Act, in violation of Section 8(a)(1) of the Act: threat to
reduce wages; threat to reduce hours of work; threat to
refuse to allow unionization of Respondent; threat to issue
changed and strict work rules; threat to transfer dispatch-
ing work out of the bargaining unit; change of, and is-
suance of strict work rules; transfer to dispatching work
out of the bargaining unit; issuance of individual warning
letters; discontinuance of benefits; transfer of work out of
the bargaining unit; interrogation of employees; interfer-
ence with a union election; and solicitation of withdrawal
of support for the Umon.
4. By the following acts Respondent discriminated
against its employees in violation of Section 8(a)(3) of the
Act: issuance of changed and strict work rules; transfer of
dispatching work out of the bargaining unit; issuance of
individual warning letters; discontinuance of benefits; re-
duction of hours of work; and transfer of work out of the
bargaining unit.
WESTPOINT TRANSPORT, INC. 357
5. All petroleum tanker drivers employed by Respon-
dent, excluding all other employees and supervisors as de-
fined in the National Labor Relations Act, constitute a
unit appropriate for the purpose of collective-bargaining
within the meaning of Section 9(b) of the Act.
6. The above-named labor organization is the exclusive
representative of all employees in the aforesaid appropriate
unit for the purpose of collective bargaining within the
meaning of Section 9(a) of the Act, and has been such
exclusive representative since August 12, 1974.
7. By refusing to bargain collectively relative to the fol-
lowing acts with the above-named labor organization as
the exclusive bargaining representative of all employees of
Respondent in the appropriate unit Respondent has en-
gaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(5) of the Act: restricting use by
said employees of company telephone credit cards; is-
suance of individual letter of warning relative to restriction
of use of company telephone credit cards; and transfer of
work to a person outside the aforesaid bargaining unit.
8. Respondent did not, through alleged conduct, violate
Section 8(a)(1) and (3) of the Act by unilaterally discontin-
uing the granting of bonuses to employees; by laying off an
employee; and by soliciting employee grievances.
9. 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 foregoing findings of fact and conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER 23
Respondent Westpoint Transport, Inc., Boise, Idaho, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing its employ-
ees in the exercise of their rights guaranteed to them by
Section 7 of the National Labor Relations Act, in violation
of Section 8(a)(1) of the Act, by the following conduct:
threat to reduce wages; threat to reduce hours of work;
threat to refuse to allow unionization of Respondent;
threat to issue changed and strict work rules; threat to
transfer dispatching work out of the bargaining unit;
change of, and issuance of strict work rules; transfer of
dispatching work out of the bargaining unit; issuance of
individual warning letters; discontinuance of benefits;
transfer of work out of the bargaining unit; interrogation
of employees; interference with a union election; and solic-
itation of withdrawal of support for the Union.
(b) Discriminating against its employees in violation of
Section 8(a)(3) of the Act by the following conduct: is-
suance of changed and strict work rules; transfer of dis-
patching work out of the bargaining unit; issuance of indi-
23 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 objec tions thereto shall be
deemed waived for all purposes.
vidual warning letters; discontinuance of benefits; reduc-
tion of hours of work; and transfer of work out of the
bargaining unit.
(c) Refusing in violation of Section 8(a)(5) of the Act to
bargain collectively concerning rates of pay, wages, hours,
and other terms and conditions of employment, with Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Local No. 551, Inde-
pendent, as the exclusive bargaining representative of its
employees in the following appropriate unit: All petroleum
tanker drivers employed by Respondent, excluding all
other employees and supervisors as defined in the National
Labor Relations Act, including, but not limited to, the fol-
lowing matters: restricting use by said employees of com-
pany telephone credit cards; issuance of individual letter of
warning relative to restriction of use of company telephone
credit cards; and transfer of work to a person outside the
aforesaid bargaining unit.
(d) In any other manner interfering with, restraining, or
coercing employees in exercise of the rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action, which I find
will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named labor
organization as the exclusive representative of all employ-
ees in the aforesaid appropriate bargaining unit, with re-
spect to rates of pay, wages, hours, and other terms and
conditions of employment.
(b) Rescind and expunge from its files and records, the
following bulletin and letters, and all references thereto:
1. Bulletin to all Westpoint tanker drivers, dated
August 16, 1974.
2. Letters dated August 20, 1974, addressed to
Frank, Gene, Bill Lamb, Arvel.
3. Letter to Frank Foreman, dated August 27, 1974.
4. Letter to all transport drivers, dated November 5,
1974.
5. Letter to Gene Woods, dated November 5, 1974.
6. Letter to all transport drivers, dated September
12, 1974.
(c) Post at its place of business in Boise, Idaho, copies of
the attached notice marked "Appendix." 24 Copies of said
notice, on forms provided by the Regional Director for
Region 19, after being duly signed by Respondent's repre-
sentative, shall be posted by it 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. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 19, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that paragraphs 18, 19, and
20(e) of the complaint be dismissed in their entirety.
24 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"