Wintle Delivery and Refrigeration Truck Service, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1972

200 N.L.R.B. 898 (N.L.R.B. 1972)

898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wintle Delivery and Refrigeration Truck Service, Inc
and Chester G Lambert Case 9-CA-6879
December 14, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
Union, and/or because of their protected concerted
activities In its answer, Respondent denies that it has
violated the Act in any respect alleged herein
Upon the entire record, my observation of the witnesses,
including their demeanor while on the witness stand, and,
after due consideration of the briefs of the General
Counsel and of Respondent, I make the following
FINDINGS OF FACT
On September 5, 1972, Administrative Law Judge
Harry H Kuskin issued the attached Decision in this
proceeding Thereafter, the Respondent filed excep-
tions and a supporting brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
The Board has considered the record and the
attached 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
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Wintle Delivery
and Refrigeration Truck Service, Inc, Columbus,
Ohio, its officers, agents, successors, and assigns,
shall take the action set forth in said recommended
Order
DECISION
STATEMENT OF THE CASE
HARRY H KUSKIN, Administrative Law Judge This
proceeding was heard at Columbus, Ohio, on July 13 and
14, 1972 A complaint issued herein on April 26, 1972,
based on a charge filed by Chester G Lambert, an
individual, against Wintle Delivery and Refrigeration
Truck Service, Inc, herein called Respondent, on March 8,
1972 The complaint alleges that Respondent violated
Section 8(a)(1) of the Act by offering reinstatement to an
employee only if he would cease his sympathy for,
membership in, and activities on behalf of Local Union
No 413, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, herein
called the Union or Local 413, and also violated Section
8(a)(3) and (1) of the Act by discriminatorily laying off,
and refusing to reinstate, two of its employees, namely
Chester G Lambert, the charging party herein, and
Charles Lambert, his son, because of their sympathy for,
membership in, and/or their activities on behalf of the
I THE BUSINESS OF RESPONDENT
Respondent admits, and I find, that it is an Ohio
corporation engaged in the refrigerated transportation of
packaged meat products to government installations, retail
supermarkets, and other distributors of food products,
that, during the past calendar year, which is a representa-
tive period, it performed services in interstate commerce
valued in excess of $50,000 as an essential link in the
transportation of meat products within the State of Ohio,
having received such meat products directly from suppliers
located outside Ohio I find, upon the foregoing, as
Respondent also admits, that Respondent is an employer
as defined in Section 2(2) of the Act, engaged in commerce
and in operations affecting commerce within the meaning
of Section 2(6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
Respondent further admits, and I find, that Local Union
No 413, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Some Background Facts
As already found, Respondent operates a delivery
service in Columbus, Ohio So far as appears, its facilities
consist of a dock, warehouse, garage, and office In its
employ are primarily over-the-road drivers and dockwork-
ers Catherine Wintle is the president and sole owner of
Respondent, Jack Wintle, one of her sons, is the vice
president of Respondent, and Joseph Wintle, another son,
is the secretary and treasurer of Respondent Catherine
Wintle is in overall charge of the daily operations at the
facility, Jack Wintle is the manager, i and Joseph Wintle is
the night shift foreman Jake Wintle, still another son,
actively joined Respondent in October 19712 as a
dockworker and driver, prior thereto, although he occu-
pied an office on the above premises, he did so in some
capacity, not clearly defined in the record, for Hayden
Motor Freight Company, another delivery service which
handled "dry goods" freight and did not "carry any meats
or anything like that," and did not use the docks at the
facility
The workday at Respondent's facility usually begins at 3
a in with the arrival of the dockworkers and their foreman,
Joseph Wintle 3 It is the function of the dockworkers to
unload the meat products which have come into the dock
' Taking care of the records and the payroll is the responsibility of 8 All dates hereinafter are in 1971 unless otherwise indicated
Jack Wintle and his wife, Juanita 3 According to employee Allen Hedrick a dockworker, there have been
200 NLRB No 129
WINTLE DELIVERY 899
and sort them and load them onto Respondent's trucks
Some of this merchandise handled by the dockworkers is
picked up and brought to the dock in Respondent's trucks
by its own drivers However, when drivers are unavailable
for this purpose, dockworkers may serve in that capacity
According to both alleged discrinunatees herein, they spent
about 6 to 8 hours a week, on average, making such
pickups Generally, the dockworkers work a 5-day week
and about a 9- or 10-hour day, when the work is heavier
than usual, their workday lasts about 12 hours, and on "an
extremely heavy day" they have worked as many as 15
hours Although the applicable contract referred to
hereinafter provides for overtime pay for time worked in
excess of 8 hours a day or 40 hours a week, they have not
been paid for their overtime
The workday of Mrs Wintle and her son, Jack, begins
between 6 30 and 7 30 a in The drivers come in at 7 or 8
am On busy mornings, if their assigned trucks are not
fully loaded, they will assist the dockworkers in such
loading At other times, the trucks are ready and waiting
for the drivers when they arrive in the morning On
occasion, a driver will arrive at 3 am to pick up his
assigned truck In those instances, his truck has been
loaded the day before and is ready for him Deliveries of
merchandise, loaded onto their trucks as above described,
appear to be the major function of Respondent's drivers
However, drivers also handled direct shipments from a
customer's facility Thus, a driver will pick up merchandise
from a customer at the customer's facility, the loading onto
Respondent's trucks being done by that customer's
employees, and will then make delivery, without first
stopping at Respondent's dock, to the designee of the
customer
The flow of business at Respondent's facility fluctuates
throughout the year Thus, business is generally slower
during the summer months than the rest of the year, and,
during the entire year, Respondent experiences an increase
over the normal business flow upon the advent of the
holidays, notably July 4, Thanksgiving, Christmas, New
Years, and Easter At these times, there is a traditional
increased consumer demand for hams, turkeys, etc , the
strongest such demand occurring around Thanksgiving
and the period of increased business usually covers 1 to 2
weeks before each holiday
With respect to Respondent's labor relations, the record
shows the following In early 1971, Respondent employed
both union4 and nonunion help, and its employees were
unrepresented by any umon for collective-bargaining
purposes This situation changed on March 24 when
several representatives of Local 413, including John J
Gordon, vice president and business agent of Local 413,
appeared at the facility in response to the request of
employee Tony Riley, a truckdriver, who "had some
trouble " After arriving at Respondent's premises, Gordon
proceeded to call the drivers, dockworkers, and other
employees together for a meeting in the warehouse A vote
was then taken by a show of hands as to whether the
employees wanted Local 413 to represent them Everyone
in attendance raised his hand, including Chester and
Charles Lambert Present at the time were Catherine, Jack,
and Joseph Wintle, of these, Joseph was standing among
the assembled employees and Catherine and Jack Wintle
were standing about 20 feet to the rear of them
Thereupon, Gordon passed out umon membership applica-
tion cards and slips authorizing the checking off from their
pay of dues and initiation fees Chester and Charles
Lambert and other employees signed both the cards and
the slips 5 Shortly thereafter, namely, on March 26,
Respondent became a signatory to the National Master
Freight Agreement and Central States Area Local Cartage
Supplemental Agreement By virtue of these agreements,
Respondent recognizes Local 413 as the exclusive repre-
sentative of "all truckdrivers, helpers, dockmen, ware-
housemen, checkers, power-lift operators, hostlers and
such other employees as may be presently or hereafter
represented by the Umon, engaged in local pickup,
delivery and assembling of freight within the area located
within the jurisdiction of the Local Umon, not to exceed a
radius of 25 miles "
The critical developments herein as to the alleged
discrimination against Chester and Charles Lambert span
the period from Friday, November 12, until Wednesday,
December 1, on the latter date, Catherine Wintle laid off
both Lamberts, telling them that she was doing so because
the work was slack The layoffs occurred before the end of
the pay period and during the middle of the shift The
details of these developments will be discussed hereinafter
The independent 8(a)(1) allegation derives from a
conversation between Charles Lambert and Joseph Wintle
about 2 months after the aforesaid layoff, during which the
former applied to the latter for reinstatement This will also
be detailed hereinafter
There is mutually corroborative testimony in this record
by Chester and Charles Lambert in which they attribute
antiumon remarks to Catherine Wintle and to Joseph
Wintle Although what occurred antedated the 6-month
period before the filing of the charge herein on March 8,
1972, and was not made and could not be made,
consistently with Section 1C(b) of the Act, the basis of
unfair labor practices, this testimony of the Lamberts, if
credited, is nevertheless available to the General Counsel
exceptions i e on an extremely hard day when dockworkers reported at
lam
4 Some of Respondent s drivers as well as Jack and Joseph Wintle were
members of the Teamsters Umon
5 The original date on the membership cards of both Chester and
Charles Lambert in evidence as G C Exhs 3 and 4, respectively is
obscured by the fact that they were scratched out and the date of November
19 1971 was substituted therefor I find credible Gordon's testimony
thereon, including his explanation that he made the changes in order to
excuse them from the payment of dues for the interim period
As to the checkoff slips I am satisfied on the basis of testimony in this
regard by Catherine Wintle Hedrick, and Gordon, that although both
Chester and Charles Lambert testified to the contrary they did not turn the
employer copy of their signed checkoff slips over to Respondent on March
24 And although they testified further that they did the same with new
checkoff slips which they assertedly signed on the day of the hereinafter
described picketing by them on November 15 1 note that Gordon testified
that they were actually signed on November 19 and he thereupon took them
to the umon office and from there normal office procedure of sending out
the employer copy was to take place In the light of the above and other
evidence in the record, I find further that Respondent had not received the
employer copies of these checkoff slips by December 1, the date on which it
terminated the Lamberts
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as background to the events occurring during the statutory
limitation period 6 According to both Lamberts, on April
2, 1971, when they went into the office to get their
paychecks, Catherine Wintle told them that she had heard
that they were going to the union meeting and that, if they
did, there was the front door and they could "hit it " Also
according to both Lamberts, on the same day, Joseph
Wintle told them, in effect, that he regards adversely an
employee's going to the Union behind his back Joseph
Wintle did not testify in this proceeding, and Catherine
Wintle did not specifically deny the above attribution to
her by the Lamberts Although Catherine Wintle denied
generally ever having told any of her employees that, if
they joined the Union, something would happen to them or
their jobs, I do not credit her general denial I credit,
instead, the mutually corroborative testimony of the
Lamberts in the foregoing respects and find that both
Catherine Wintle and Joseph Wmtle made the above
remarks which the Lamberts attributed to them 7
B The Employment History of the Lamberts
Chester Lambert started his employment with Respon-
dent on November 21, 1970, as a dockworker During his
entire employment tenure, he worked on the night shift,
also referred to in the record as the early morning shift,
under the supervision of Joseph Wmtle, the foreman on
that shift His starting salary of $180 per week was
increased to $190 the next month, and to $200 two months
after that He was earning the latter amount at the time of
his termination on December 1 Charles Lambert, his son,
began to work for Respondent on March 17, 1971 Like his
father, he was hired as a dockworker for the same shift, at
the same starting salary, and under the same supervision
According to Charles Lambert's undenied testimony, he
was then told by Joseph Wmtle that his hours would be
from 3 a in to 11 30 a m and that he would work a 40-
hour week However, the record shows that he, like the
other dockworkers, worked longer hours In this connec-
tion, Catherine Wintle admitted that the dockworkers
would work until 1 p in to get the work done, adding that
sometimes they would not have anything to do after 7 30
or 8ain
As already noted, Respondent does less business during
the summer months than during the rest of the year
Although the summer of 1971 followed the usual pattern,
none of Respondent's dockworkers was laid off for lack of
work, the only change in work schedules among the
dockworkers was that both Lamberts were placed on a 4-
day week during July, August, and September
Except for one episode, the record is devoid of any
evidence that Respondent faulted either of the Lamberts
for his work performance That episode occurred on
Friday, November 12, and marks the commencement of
6 See Local Lodge No 1424 International Association of Machinists
AFL-CIO (Bryan Manufacturing Co) v N L R B 362 U S 411, in which
the Supreme Court pointed out that earlier events may be utilized to shed
light on the true character of matters occurring within the limitation
period See also Axelson Manufacturing Company 88 NLRB 761 766
7 Catherine Wintle also did not specifically deny the further testimony
by the Lamberts that on March 24 1971 she told them that before she
would allow the Union to come into the plant she would close the doors
and lay off all her employees and bring in brokers However I predicate no
the critical period herein, which had its culmination on
December 1, less than 3 weeks later, in their termination
On that Friday, the dockworkers, of whom there were four,
namely, Jake Wintle, Allen Hedrick, and the Lamberts,
were told by Joseph Wintle at the start of the workday that
it was a "heavy day," and they were to do the loading as a
two-man operation, i e, with one of them on the floor and
one on the truck At one point , after the loading of the
trucks had begun, both Lamberts were on the truck as they
were loading it Joseph Wintle came upon the scene and,
upon noticing this, shouted, "I told one of you goddamn
guys to get down and load one of the trucks I' m getting
sick and tired of telling you guys to do something " This
led to an exchange of some angry words between Joseph
Wintle and Chester Lambert, during which Chester
Lambert complained about Respondent "working them
like horses," with long hours, and no coffeebreaks or
overtime pay It ended with Joseph Wintle telling Chester
Lambert that he was discharged At this, Charles Lambert
appealed to Joseph Wintle to overlook the "blow up" and
not discharge his father, telling him that the dockworkers
had been putting in long hours and were all tired and worn
out Whereupon, Joseph Wintle relented and said that
Chester Lambert could go back to work
In the wake of the above, the following occurred On
Monday, November 15, both Lamberts reported for work
at 3 am Joseph Wintle lost no time in calling Chester
Lambert into the office, where he told Chester Lambert
that he was being discharged, and gave as the reason
therefor, upon Chester Lambert's inquiry, "that this was
not the first time that he (Chester Lambert) has blown up "
Chester Lambert acknowledged having "got mad" on two
prior occasions , and explained the reasons therefor, but to
no avail Chester Lambert thereupon left the office and
informed his son of this development At about 3 05 a in,
both father and son walked out of the facility Shortly
thereafter, they repaired to the home of James South, a
truckdnver employed by Respondent and the unofficial
steward for the Union at the facility 8 Upon South's advice,
they returned to Respondent' s warehouse at about 6 a in
and picketed it with a sign bearing the legend "Wintle is
unfair to labor," with Charles Lambert picketing in the
front of the warehouse, and Chester Lambert picketing in
the rear
During the picketing which lasted only until about 10
a in that day, there were these developments ( 1) Subse-
quent to her arrival at the facility at about 7 a in,
Catherine Wintle came out of the building and began to
walk back and forth with the pickets She acknowledged
that she did so "just a couple of times" and that she told
Charles Lambert that "that was a dirty trick [he] did" and
finding on this testimony of the Lamberts for the following reasons The
Lamberts testified, too that this statement was made by her at the time both
of them handed her the employer copy of their union checkoff slips Since I
have been unable to find on this record that they did hand her such slips
then or thereafter I am not satisfied that the record preponderates in favor
of a finding that these attributed remarks were made by her
8 Charles Lambert said he had the information about South s unofficial
status from the Union Man
WINTLE DELIVERY
further that "regardless what happens [she] will not take
[him] back under any circumstances "9 (2) Joseph Wintle
approached Chester Lambert and said that he wanted
Chester Lambert to go back to work Chester Lambert
refused, saying that he "was going to wait and talk to the
Union," and further that he had been there a year and he
still had no insurance or retirement and wanted to get that
straightened out (3) Thereafter, around 9 a in, Joseph
Wrntle approached Charles Lambert and told him to go
back to his job Chester Lambert refused to do so upon
learning from Joseph Wintle that his father was not going
back to work He referred at the time to the lack of job
security and said that he would not return as "it has gone
so far this tune," and he wanted to get the matter of health
and welfare and of taking lunch on time straightened out
The picketing succeeded in inducing drivers of Respon-
dent not to go to work Gordon, the business agent of
Local 413, apparently learned thereof and arrived on the
scene at about 10 a in He asked the Lamberts to stop the
picketing and they complied He then proceeded to have
discussions with Catherine Wrntle about the matter,
looking toward the return of the Lamberts to work After
one such effort by Gordon which failed,10 Catherine
Wmtle reluctantly agreed to their return In this connec-
tion, Catherine Wrntle, who was examined by counsel for
the General Counsel under section 43(b) of the Rules of
Civil Procedure for the District Courts of the United
States, volunteered that she then told Gordon, "Look, I'll
take them back, but if I don't have work for them, I will
have to lay them off " Significant as to her state of mind at
the time are the following answers by her to the next
several questions by counsel for the General Counsel
Q When you agreed to take the two Lamberts
back, you told Mr Gordon at that time, "I will take
them back, but if I don't have any work for those two
Lambert boys in the future, I will lay them off " Those
were the only two names you mentioned, is that right')
A Yes
Q You had in your mind at the time when you
talked to Mr Gordon and when you informed him that
if you didn't have work in the future you were going to
lay off the Lamberts You had it in your mind for the
future because they picketed you, did you not')
A Yes I did
Q And you had it in your mind when you made
that statement about possibly laying off the Lamberts
when you talked to Jack Gordon, didn't you?
A Yes I did
The Lamberts did then go back to work However, for
the first time, as per instructions from Gordon, they
punched in on Respondent's timeclock 11 Each one used a
timecard which was available in blank in the vicinity of the
timeclock and filled in his name 12 They continued to
9 I note that Charles Lambert testified that Catherine Wrntle carried a
piece of notebook paper upon which was written the legend Employees
unfair to their employer as well as a newspaper over her head because it
was raining , whereas Catherine Wrntle testified that all she carried was a
newspaper without any handwriting thereon However I find it unnecessary
to and do not resolve this conflict in testimony as it suffices to find here as
I do on the basis of Catherine Wrntle s own testimony that she made the
above remarks to Charles Lambert during this episode
10 Gordon believing that the return to work of the Lamberts had been
901
punch their respective timecards during the remainder of
their employment tenure, notwithstanding the fact that the
other dockworkers adhered to the old routine and did not
punch a timecard During this interval, Catherine Wintle
would tell the Lamberts to go home when 11 30 am
arrived However, the other dockworkers continued to
work late hours
It is apparent from the record that on or about
November 18, after the above picketing episode, Catherine
Wintle posted a "sign" on Respondent's premises to the
effect that the Lamberts were to be laid off Neither
Chester nor Charles Lambert saw the sign but their
testimony is undemed that Joseph Wintle told them of its
contents and added that he had torn it down
The separation of the Lamberts became a reality on
Wednesday, December 1 On that day, they came to work
at the usual time At 7 a in they, their two fellow
dockworkers, as well as Floyd Fields, a driver, and Joseph
Wintle were in the latter's office when Catherine Wrntle
entered She inquired from the men "if the work was all
done," and, upon receiving an affirmative response, she
said to the Lamberts that they were being laid off because
the work was slack At this, the Lamberts left the office
and punched out It is clear from the record that Catherine
Wintle intended to effect their permanent severance Thus,
she testified that she laid them off rather than discharged
them in order that they might obtain employment
elsewhere, that the layoff "was a permanent layoff," and
that as far as she was concerned they were no longer in her
employ and would not be in her employ again In addition,
by her own admission, the fact that the Lamberts had
picketed was one of the reasons for this personnel action
Thus, she testified as follows, in this connection, while
being examined by counsel for the General Counsel under
Section 43(b) of the Rules of Civil Procedure
Q Now, did I understand your testimony to be
that the reason or one of the reasons why you laid off
the Lamberts on December 1 was the fact that they had
picketed you?
A Yes, it was
And at a later point, under further examination by counsel
for the General Counsel, she gave testimony along the
same lines as follows
Q (By Mr Verst) Isn't it a fact , Mrs Wintle, that
the primary reason that you laid off the Lamberts was
because of the fact that they picketed you')
A That is some of the facts
Q Wasn't that your primary reason, Ma'am?
A Let's put it this way It was one of the reasons
then I didn't have no work for them
Q Wasn't that one of the primary reasons that you
laid off those two because they picketed you?
MR REEVES She has answered the question
agreed upon directed them and the drivers who had abstained from
working to go back in However Catherine Wintle interposed that she
did not want the Lambert boys back Gordon s response thereto was to tell
the men, Hold it Don t punch in
11 Gordon's instructions to the Lamberts were that they should punch in,
then punch out after 6 hours of work and go to lunch to punch in again
when they return, and to punch out when they finish their day s work
12 As of that time only Respondents over the-road truckdnvers had
been punching timecards
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE WITNESS I will answer to that
TRIAL EXAMINER Was it one of the primary reasons?
THE WITNESS Yes I didn't have no work for them I
can't spend money for them if I don't have work
The Lamberts have not worked for Respondent since
December 1 There is undemed testimony by Charles
Lambert that he had separate conversations thereafter with
Joseph Wintle and Jack Wintle in which he requested
reinstatement The last such conversation, according to
him, occurred early in February 1972 13 Joseph Wintle
then told him that "if [he] had a chauffeur's license they
might be able to get [him] on, or if [he] could get a signed
statement from [his] father releasing them from all
obligations to [his father] they might want him back They
had the work for another man but not for [his] father"
C The Evidence Bearing Upon the Asserted Claim
of Slack Work at the Time of the Layoffs
The record shows that , within the first month after their
layoffs, and before Charles Lambert had applied for
reinstatement , Respondent had, in effect , replaced him and
his father Thus, it transferred Kenny Thompson from the
job of mechanic to that of dockworker, where he stayed for
about 5 months and then returned to his formerjob It also
hired Mike Dixon, a relative of the Wintles , on a regular
basis as a dockworker , whichjob he still held at the time of
the hearing , Dixon had, during the prior 3 years been
attending school and worked for Respondent only during
the summer months as a janitor As dockworkers, both
Thompson and Dixon worked full time on the same shift,
and performed the same work tasks as the Lamberts before
them Significant, too, in regard to Respondent 's workload
shortly before and immediately after these layoffs, are the
stipulated gross income figures herein covering Respon-
dent's operations for the period beginning January 1970
through December 1971 These figures show that , in 1970,
business increased substantially in October and continued
at a high level for the rest of the year , and that the same
was true in 1971, which was a much better business year
Also, whereas December 1970 showed a decline in gross
income from November 1970, December 1971 showed a
considerable increase in such income over November 1971,
and, in addition, was the second best month of 1971 14
D Analysis and Conclusions as to the Separation
of the Lamberts
It is apparent from all the foregoing, and I find, that the
record does not support Respondent' s contention that, at
the time of the layoffs, it was experiencing a slack period in
its operations Indeed, the opposite was true It was then in
the middle of the yearend holiday season, a time when
business shows an increase over the normal Furthermore,
the year 1971 had up to that point been a better business
year than 1970, and it does not appear that Respondent
had any reason to believe that business would not maintain
that pace Indeed, December proved to be the second best
month of 1971 I am therefore persuaded from the
foregoing, and from the fact that Respondent lost little
time in replacing the Lamberts, albeit they were told at the
time that they were being laid off because of slack work,15
that this asserted ground is lacking in merit and was not an
operative factor in the discharge
I turn now to the testimony of Catherine Wintle, quoted
heretofore, in which she admitted that one of the reasons
for the layoff was that the Lamberts had picketed her
premises on November 15 This picketing, as already
found, followed in the wake of these events On November
12, Chester Lambert, in the course of an angry exchange
with Joseph Wmtle, his foreman, became vocal about
working conditions, mentioning , inter aha, the long hours
of the dockworkers, their lack of coffeebreaks and their
failure to get paid overtime Whereupon, Joseph Wintle
discharged him on the spot, only to revoke the discharge
immediately upon the intercession of Charles Lambert,
and then to reinstate the discharge on November 15, the
next working day
It is patent that the Lamberts' action, in consequence of
the foregoing, of picketing with signs bearing the legend
"Wintle is unfair to labor" was triggered by the discharge
of Chester Lambert because he had protested his working
conditions in an effort to improve them and, with specific
reference to overtime pay, in an effort to gain compliance
with the applicable bargaining agreement between Local
413 and Respondent 16 As such, this conduct would seem
to have the protection of the Act However, Respondent
contends, in effect, that the facts herein require a different
result allegedly because the Lamberts were engaged at the
time of the picketing in "a wildcat strike or work stoppage
not called and approved by the Union " I cannot agree
Thus, with reference to Chester Lambert, as Respondent
discharged him and thereby caused him to cease work and
leave the premises, it is clear, and I find, that the above
contention must fall with respect to him And as to Charles
Lambert, assuming, without deciding, that by leaving his
work and joining with his father he engaged in a wildcat
strike, Respondent exceeded permissible bounds under the
13 As already noted the charge herein was filed on March 8 1972
14 These figures are as follows
1970 1971
Jan. $12,103.06 $26,922.11
Feb 11,857 66 13,507 46
i'arch 10,905 71 22,922 99
April 10,138 62 18,746.13
MAY 14,234.01 18,880 82
June 10,172.78 17,755 53
July 12,961 72 21,899 40
Aug 12,734 46 17,660 56
Sept 12,665 95 17,699 94
Oct 19,042.58 22,019.84
Nov 25,549.62 20,996 75
Dec 21,737.36 23,662 72
15 In marked contrast to this personnel action was Respondent s action
in placing the Lamberts on a 4-day week during the summer of 1971, when
because of past experience it could have expected business to slacken
16 Thus, the Ohio Addendum annexed to the Central States Area Local
Cartage Supplemental Agreement provides the base rate applicable to
dockmen among others and article 61 section 2 of this Supplemental
Agreement provides in relevant part All hours worked in excess of eight
(8) hours in any one (1) day or forty (40) hours in any one (1) week shall be
paid at the rate of time and one half (1 1/2) the regular hourly rate but not
both
WINTLE DELIVERY
existing agreement in discharging him Respondent recog-
nizes, in this connection , that the existing agreement
includes a provision rendering immune from the extreme
penalty of discharge those who participate in an unauthor-
ized work stoppage of less than 24 hours , 17 but argues that
neither of the Lamberts was covered by this agreement,
allegedly because they were not members of the Union at
the time However, membership in the Union is not the
criterion as to such coverage For, apart from the matter of
when the Lamberts actually became members of the
Union, it suffices, as I find here, that they were at all
relevant times part of the collective-bargaining unit set
forth in the aforesaid agreement and were therefore
covered by it Accordingly, it follows therefrom that
Respondent 's reliance upon article 2, section 3, of the
National Master Freight Agreement, which renders the
agreement inapplicable to employees in a noncovered unit
who have not designated a signatory Union as their
collective-bargaining agent is misplaced 18 Further, with
specific reference to the above mentioned provision
8(a)(3)(a), the Board, in Wagoner Transportation Co, 177
NLRB 452, where a similar no-strike provision was in issue
held, with Court approval,19 that "to the extent that the
Agreement prohibited the Respondent from exacting the
penalty of discharge on employee-participants in wildcat
strikes of less than 24 hours' duration, such strikes are
protected activities under the provisions of Section 7 of the
Act which guarantees to employees the right to engage in
concerted activities for the purpose of collective bargaining
or other mutual aid or protection "
In sum, therefore, I find that the picketing by the
Lamberts, which Respondent concedes was one of the
reasons for their termination, was protected by the Act
And I find further, in view of my rejection heretofore of
Respondent's claim that it laid them off about 2 weeks
thereafter because of slack work, and in the light of the
entire record, that the picketing by them was the only
reason for their termination This is underscored by
Catherine Wintle's testimony that she told Charles Lam-
bert, while walking back and forth with him during the
picketing on November 15, that "that was a dirty tack [he]
did," and further "that regardless what happens she will
not take him back under any circumstances", that,
although she took the Lamberts back the same day upon
Gordon's intercession in the matter, she did so reluctantly
and indicated to Gordon that she was already thinking of
laying them off "if I don't have work for them," making no
reference to the other dock workers, that nothing unto-
ward occurred between Respondent and the Lamberts in
the period of about 2 weeks thereafter, and that they were
discharged precipitately and without warning at a time
when business increases because of the upcoming holidays
17 As already found, the picketing herein lasted only 4 hours and
occurred on the day the Lamberts left the plant after Chester Lambert s
discharge
Article 8(a)(3)(a) of the National Master Agreement herein provides as
follows in relevant part
It is specifically understood and agreed that the Employer during the
first twenty four (24) hour period of such unauthorized work stoppage
in violation of this agreement, shall have the sole and complete right of
reasonable discipline including suspension from employment up to
and including thirty (30) days, but short of discharge, and such
employees shall not be entitled to or have any recourse to the grievance
903
and before the end of the payroll period , indeed, in the
middle of the shift
It follows from all the foregoing, and I find, that the
Lamberts were discharged for engaging in protected
concerted union activities in violation of Section 8(a)(1)
and (3) of the Act 20 In respect to whether the aforesaid
conduct of Respondent violated Section 8(a)(3) of the Act,
I am cognizant of both Respondent 's contention that it did
not know that the Lamberts were "attempt[ing] tojoin the
Union" at the time of their termination, and of the
requirement that an essential ingredient of a finding of a
violation of Section 8(a)(3) is that Respondent had union
animus However ( 1) since it is clear , and I find, that
Respondent was, at the least , aware that the Lamberts were
adherents of the Union , and (2) since the discharges
occurred against a background of warnings by Catherine
Wintle and Jack Wintle to the Lamberts , albeit 8 months
prior thereto and outside the 10(b) period, to the effect that
they risked discharge or adverse consequences if they
became involved with the Union, and since their discharges
followed by about 2 weeks their return to work through
the intercession of Business Agent Gordon, I perceive no
impediment to inferring , and finding , as I do here, that, by
discharging the Lamberts , Respondent also discriminated
against them for antiunion reasons in violation of Section
8(a)(3) of the Act
E The Alleged 8(a)(1) Violation
The complaint alleges in paragraph 5 thereof that
Respondent contravened Section 8(a)(1) of the Act by
offering reinstatement to an employee only if he would
cease his sympathy for, membership in, and activities on
behalf of the Union As heretofore found, early in
February 1972, according to the undemed testimony of
Charles Lambert, he was told by Joseph Wintle, during the
course of an application for reinstatement, "that if [he] had
a chauffeur's license they might be able to get [him] on, or
if [he ] could get a signed statement from [his ] father of all
obligations to [his father] they might want [him] back
They had work for another man but not for [his] father "
As it is apparent that the attribution to Joseph Wintle was
stated in the alternative , the first of which is clearly not
objectionable, and the second of which is ambiguous, and
as, even assuming no ambiguity in the second alternative, it
does not support the above allegation of the complaint, I
conclude, and find , that the complaint in this respect has
not been sustained by the record
Upon the basis of the entire record, I make the
following
procedure
la Article 2 section 3 the caption of which is non Covered Units
reads as follows
This agreement shall not be applicable to those operations of the
Employer where the employees are covered by a collective bargaining
agreement with a Union not a signatory to this Agreement or to those
employees who have not designated a signatory Union as their
collective bargaining agent
19 See 424 F 2d 628 (C A 6)
20 See Wagoner Transportation Co supra
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1 Respondent is an employer as defined in Section 2(2)
of the Act, and is engaged in commerce and in operations
affecting commerce within the meaning of Section 2(6) and
(7) of the Act
2 The Union is a labor organization within the
meaning of Section 2(5) of the Act
3 By discharging Chester G Lambert and Charles
Lambert on December 1, 1971, because they engaged in
protected concerted activity, Respondent interfered with,
restrained, and coerced its employees in violation of
Section 8(a)(1) of the Act
4 By discharging Chester G Lambert and Charles
Lambert on December 1, 1971, and thereafter refusing to
reinstate them because of their union activity, Respondent
discriminated against the hire and tenure of its employees
in violation of Section 8(a)(3) of the Act
5 Respondent has not violated Section 8(a)(1) of the
Act in any other respect alleged herein
REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of both Section 8(a)(1)
and (3) of the Act by discharging Chester G Lambert and
Charles Lambert, I shall recommend that a broad order
issue that it cease and desist therefrom, and that it
affirmatively take such action as will dissipate the effects of
its unfair labor practices In the latter regard, I shall
recommend that Respondent offer each of them immediate
and full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of earnings he may have
suffered during the period of this discrimination against
him by payment to him of a sum of money equal to that
which he would have earned as wages from the date of
such discrimination to the date of Respondent's offer of
reinstatement, less his net earnings during such period,
with backpay and interest thereon to be computed in the
manner prescribed by the Board in F W Woolworth Co,
90 NLRB 289, and Isis Plumbing & Heating Co Inc, 138
NLRB 716
Upon the foregoing findings of fact, conclusions of law,
and the entire record in the case, I hereby issue the
following recommended 21
ORDER
Respondent, its officers, agents, successors and assigns,
shall
1 Cease and desist from
(a) Interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed in Section 7 of the Act
by discharging any of its employees because they engaged
in protected concerted activity
(b) Discharging any of its employees for antiunion
reasons
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act
2 Take the following affirmative action which will
effectuate the policies of the Act
(a) Offer to Chester G Lambert and to Charles Lambert
immediate and full reinstatement to their formerjobs or, if
these jobs no longer exist, to substantially equivalent
positions without prejudice to their seniority or other rights
and privileges, and make each of them whole for any loss
of earnings he has suffered, in the manner set forth in the
section hereof entitled "The Remedy "
(b) Preserve and, upon request, make available to the
National Labor Relations Board or its agent, for examina-
tion and copying, all payroll records, social security
records, timecards, personnel records and reports, and all
other records necessary or useful to determine or compute
the amounts of backpay due, as herein provided
(c) Notify Chester G Lambert and Charles Lambert, if
presently serving in the Armed Forces of the United States,
of their right to full reinstatement upon application, in
accordance with the Selective Service Act and Universal
Military Training and Service Act of 1948, as amended,
after discharge from the Armed Forces
(d) Post at its plant in Columbus, Ohio, copies of the
attached notice marked "Appendix" 22 Copies of said
notice on forms provided by the Regional Director for
Region 9, after being signed by a representative of
Respondent, shall be posted by Respondent immediately
upon receipt thereof and be maintained for 60 consecutive
days thereafter in conspicuous places, including all places
where notices to employees are customarily posted
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material
(e) Notify the said Regional Director, in writing, within
20 days from the date of the receipt of this Decision, what
steps Respondent has taken to comply herewith 23
(f) It is further recommended that the complaint be
dismissed insofar as it alleges violations of the Act not
found herein
2 1 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
22 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 be changed to read
Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board "
23 In the event that this recommended Order is adopted by the Board
after exceptions have been filed this provision shall be modified to read
Notify said Regional Director for Region 9 in writing 20 days from the
date of this Order what steps Respondent had taken to comply herewith
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interfere with, restrain, or coerce our
employees in the exercise of the rights guaranteed
WINTLE DELIVERY
under the Act by discharging any of them because they
engaged in protected concerted activity
WE WILL NOT discharge any of our employees for
antiumon reasons
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of the
rights guaranteed in Section 7 of the Act
WE WILL offer to Chester G Lambert and to Charles
Lambert immediate and full reinstatement to their
former jobs, or if those jobs no longer exist, to
substantially equivalent positions without prejudice to
their seniority or other rights and privileges , and make
each of them whole for any loss of pay suffered as a
result of his discriminatory discharge
WINTEL DELIVERY AND
REFRIGERATION TRUCK
SERVICE, INC
(Employer)
Dated By
905
(Representative ) (Title)
WE WILL notify Chester G Lambert and Charles Lambert,
if presently serving in the Armed Forces of the United
States, of their respective right to full reinstatement upon
application , in accordance with the Selective Service Act
and the Universal Military Training and Service Act of
1948, as amended , after discharge from the Armed Forces
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office , Federal Office Building,
Room 2407 , 550 Main Street , Cincinnati, Ohio 45202,
Telephone 513-684-3686