Yellow Transit Freight Lines, Inc.

National Labor Relations Board - Board Decisions

Apr 29, 1969

175 N.L.R.B. 672 (N.L.R.B. 1969)

672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Yellow Transit Freight Lines, Inc. Special Hauling
Division and William Kusley . Cases 13-CA-7686
and 13-CA-8161
April 29, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On August 26, 1968, Trial Examiner John G.
Gregg issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent and the General Counsel
filed exceptions, cross-exceptions, and supporting
briefs, and answering briefs. The Respondent filed a
request for further hearing and a request for oral
argument.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision,
the exceptions, cross-exceptions and briefs, and the
entire record in this case, and hereby adopts the
findings,' conclusions,' and recommendations of the
Trial Examiner, as modified herein.
'Respondent requests a hearing to adduce evidence concerning the
position taken by the United States Steel Company before the Interstate
Commerce Commission in a proceeding regarding the applications of 20
motor carriers for operating authority to compete with Yellow Transit
These matters were known to Respondent at the time of the hearing in the
instant case and failure to litigate them at that time precludes further
development of this issue now. The request for a hearing is denied.
However , the General Counsel and the Charging Party have raised no
objection to our consideration of certain documents pertaining to this
matter submitted to the Board by the Respondent . We conclude that these
documents , and the arguments predicated thereon , raise no serious
question as to either the merits of the present case or the possibility of
conflict between the National Labor Relations Act and the Interstate
Commerce Act. Respondent's request for oral argument on the propriety
of setting aside the June 1967 settlement agreement is also denied, the
positions of the parties having been adequately presented in their briefs
'The Trial Examiner found that the discharge of employee Kusley
violated Sections 8(a)(l), 8(aX3 ), and 8(a)(4) of the Act. The latter section
proscribes discrimination against an employee for filing charges with or
giving testimony before the Board . Since we agree with the Trial
Examiner's finding of a violation of Section 8(a)(l) and (3), it is
unnecessary to decide whether the evidence specifically substantiates his
conclusion that Section 8(a)(4) was also violated. We shall therefore
dismiss that portion of the complaint which alleges a violation of Section
8(a)(4). The Trial Examiner further found that the Respondent had
committed various violations of Section 8(axl). We agree with these
conclusions , with two exceptions. While there is some evidence in the
record to support the Trial Examiner's summary conclusion that the
Respondent engaged in unlawful interrogation of its employees, the record
also contains conflicting testimony . Since the Trial Examiner made no
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Yellow Transit
Freight Lines, Inc., Special Hauling Division,
Kansas City, Missouri, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as herein modified:
1. Delete from paragraph 1(b) the language
"coercively interrogating and" and "withholding
paychecks and threatening reprimands because of
such activities;".
2. Delete from the first indented paragraph of the
Appendix attached to the Trial Examiner's Decision
the words "and from filing charges or giving
testimony to the National Labor Relations Board".
3. Delete from the second indented paragraph of
the Appendix attached to the Trial Examiner's
Decision the words "interrogate nor" and "nor
withhold paychecks or threaten reprimands because
of such union membership or concerted activity."
4. Delete the final paragraph of the Appendix
attached to the Trial Examiner's Decision, beginning
"All our employees...".
express resolution of this conflict and did not evaluate the circumstances
surrounding the alleged interrogation , we are constrained to overrule this
finding . We also reverse the Trial Examiner 's holding that the Respondent
violated Section 8(a)(l) by withholding the paycheck of employee Joseph
Starr in December 1966 . Respondent gave as its reason for this action
Starr' s failure to turn in logs on a daily basis , as required by ICC
regulations . While there is some indication that this attempted imposition
of a penalty on Starr for these derelictions was contrary to the treatment
accorded other employees for similar defaults , there is no showing in the
record that Respondent had knowledge of any union activity by Starr or,
indeed , that Starr had engaged in any union activity markedly different
from that of his fellow employees . It also appears that Starr ' s complaint
about the withholding was immediately adjusted by an official at the home
office of Respondent . We cannot find , therefore, that the withholding of
the paycheck may properly be ascribed to a desire on Respondent's part to
retaliate against concerted activity by Starr.
'Our modifications of the Trial Examiner's findings require certain
changes in the section of his Decision entitled "Conclusions of Law." The
words "and because he filed charges with the Board" and "and 8(aX4)"
are hereby deleted from paragraph 2 of that section. The words
"interrogating its employees concerning their protected concerted activities
and desires; withholding the paycheck of, and threatening to reprimand an
employee because of his protected concerted activities" are deleted from
paragraph 3 of this section.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
JOHN G . GREGG , Trial Examiner : This trial was held at
Chicago, Illinois, on June 4, 5, 6, and 7, 1968 . Upon an
original charge filed by William Kusley, December 13,
1966, Case 13-CA-7686 , and a subsequent charge filed on
December 8, 1967, Case 13-CA-8161, the Regional
Director for Region 13 issued an Order Consolidating
Cases, Complaint and Notice of Hearing on March 27,
1968, consolidating for trial the foregoing cases against
Yellow Transit Freight Lines , Inc., Special Hauling
175 NLRB No. 113
YELLOW TRANSIT FREIGHT LINES, INC. 673
Division,'hereinafterreferred to as the Respondent.
The General Counsel -contends that the Respondent
discharged William Kusley on December 6, 1967 because
of his union and other protected concerted activity in
violation of Sections 8(a)(1), 8(a)(3) and 8(a)(4) of the
Act; that the Respondent thereby violated a settlement
agreement entered into by the Respondent and the
Regional Director; and further that the Respondent
interfered with, restrained and coerced its employees in
the exercise of rights guaranteed in Section 7 of the Act in
violation of Section 8(a)(1) of the Act.
On April 5, 1968, the Respondent filed a timely answer
denying the unlawful discharge of Kusley, denying any
violation of the settlement agreement and denying any
interference, restraint or coercion as charged by the
General Counsel. At the close of the hearing counsel for
the parties filed briefs.
Upon the entire record in the case, careful
consideration of the briefs, and from my observation of
the witnesses as they testified I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Yellow Transit Freight Lines, Inc., Special Hauling
Division, is and has been at all times herein a corporation
duly organized under and existing by virtue of the laws of
the State of Indiana, and has maintained its principal
office and place of business in Kansas City, State of
Missouri.
Yellow Transit Freight Lines, Inc., Special Hauling
Division, at all times material herein has been engaged in
business as an interstate carrier of freight by motor truck,
and in the course and conduct of said business has
maintained freight terminals in various cities of the
United States- of America, including Gary, Indiana, and
has carried on its said trucking operations among the
States of Missouri, Iowa, Illinois , Indiana, Michigan, and
Pennsylvania.
During the past calendar year which is a representative
period, Yellow Transit Freight Lines, Inc., Special
Hauling Division, received a gross annual revenue from its
said business operations in excess of $3,000,000 of which
$1,000,000 was derived from its said interstate operations.
The Respondent is and has been at all, times material
herein an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
H. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that on or about December 6,
1967 the Respondent discharged William Kusley because
he engaged in union and other protected concerted
activities and because he filed charges or gave testimony
under the Act; all the foregoing in violation of Sections
8(a)(1), (3), and ' (4) of the Act, and that thereby the
Respondent violated the terms of a settlement agreement
entered into between the Respondent and the Regional
Director for the Thirteenth Region. In addition to the
foregoing, the consolidated complaint alleges the following
acts by the Respondent of interference, restraint and
coercion of its employees in the exercise of rights
guaranteed'to them in Section 7 of the Act: (a) That the
Respondent, by Frank Gurgon and Jess Ward, on or
about November 28, 1966 and another date, at Gary,
Indiana, interrogated its employees concerning union
membership and/or protected concerted activities of
various employees of the Respondent; (b) that the
Respondent since December 1, 1966, has on several
occasions withheld paychecks of employees because they
engaged in union or other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection; (c) that the Respondent, by its agent Frank
Gurgon, on or about December 30, 1966 at Gary, Indiana,
told employees that it was going to send them letters of
reprimand because of their union and other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection; (d) that the Respondent, by its
agent Frank Gurgon, about mid-January 1967, at Gary,
Indiana, threatened an employee that the Respondent
might shutdown . its steel division if the employees
continued to engage in union or other concerted activities;
(e), that the Respondent on or about February 4, 1967, by
its agent Frank Gurgon, at Gary, Indiana told an
employee that the employees were not going to achieve
results and that they might as well forget their union and
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection; and (f) that
the Respondent on or about February 6, 1967, by its
agent Jess Ward at Gary, Indiana told an employee to
warn employees engaged in union or protected concerted
activities that they were getting the reputation of being
agitators, all the foregoing in alleged violation of Section
8(a)(1) of the Act.
A. The Alleged Unlawful Discharge of William
Kusley
The Special Hauling Division of the Respondent is in
the business of hauling steel, soliciting orders to transport
steel by motor truck, and transporting such steel through
owner-operators who lease their equipment to the
Respondent and receive a percentage of the gross weight
hauled for rental and a separate and additional payment
as driver for the Respondent. The Respondent obtains the
freight, operates a dispatch service, collects the bills and
makes required payments to the owner-operators. The
Respondent transacts its business through approximately
175 such owner-operators.
William Kusley was in the employ of the Respondent
since approximately 1959. He hauled out of the
Respondent's Gary, Indiana terminal to Michigan,
deadheading back to Gary, Indiana his home base,
hauling steel, steel coils, sheets and steel bars. Kusley
operated a four-axle tractor and seven-axle tractor called
Michigan trains, hauling exclusively for Yellow Transit
Freight Lines, the Respondent. The record is replete with
credible testimony indicating that Kusley was a key figure
in the concerted activities of the owner-operators,
attending several meetings during the year 1966 with
owner-operators of the Respondent in Toledo, Ohio,
Detroit, Gary, Indiana, and Chicago. Kusley testified that
the meeting in Chicago was attended by representatives
from all the local unions, presidents, and business agents
and that the purpose of these meetings was to better
working conditions. Some of the matters taken up at the
Chicago meeting were the desires of the men to be
relieved of the steel addendum, their desire for better
terminal facilities, better hotel accommodations and
amelioration of tax reimbursements, and grievances with
respect to dispatching procedures. Kusley testified that
there were grievances concerning the fact that certain
operators were not placed on the board and that this was
true especially in the Gary terminal where, according to
Kusley, some Michigan outfits running out of Gary did
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not go on the board for a year or more, but were getting
the best loads, hauling four and five loads a week, while
Kusley claimed he was getting one or two loads a week.
Kusley testified that on the 5th of January 1966, at a time
when he was engaged in exposing the alleged practice of
the Respondent in using operators who were not on the
board, he received a telephone call while he was at a
doctors office from Frank Gurgon, a dispatcher, advising
him that Mr. Dale Merriman wanted to see him down at
the terminal immediately. According to Kusley, Merriman
took Kusley to a restaurant, immediately told him to
shutup, and said that he did not want Kusley telling the
men what was going on, to shut his mouth or Merriman
would blackball him. According to Kusley, Merriman
threatened, him, saying "I'll put you out of business." The
record indicates that Kusley was discharged by the
Respondent on December 9, 1966, and that he
subsequently filed a charge with the Board in Case
13-CA-7686. His reinstatement with the Respondent was
effected through the grievance procedure and a Settlement
Agreement was executed by the parties and approved by
the Board.
Kusley testified additionally to a meeting in 1967 with
Respondent company officials, including Mr. Dale
Merriman and Mr. Whitchurch, where Kusley was the
spokesman for the drivers and the discussion centered on
minimum loads, better terminal facilities, better hotels,
relief from the steel addendum, and payment of the
Company of the highway use tax. According to Kusley,
during the summer of 1967, the owner-operator drivers
picketed Local Union 142 over the matter of the alleged
failure of Local 142 to cooperate with them. Kusley
testified that he tried on many occasions to contact the
Union but could get no cooperation, so in August 1967,
he organized a strike. According to Kusley, he and Jim
Levitt put out posters calling for a general strike, which
started at Gary, Indiana and extended directly to an 8
state area, and indirectly perhaps a 20 state area involving
possibly 20,000 men. There is no question on this record
but that Kusley was a key figure and active in concerted
activity for the purpose of collective bargaining or other
mutual aid or protection. While Merriman, in his
testimony, denied threatening Kusley he corroborated the
fact that he did have Kusley summoned to his office, took
him to a restaurant where matters were discussed,
because, according to Merriman, "We had some friction
between the dispatcher and another driver in the company
and I questioned him about it." I credit Kusley's
testimony relating to this incident and find that Merriman
made the remarks attributed to him by Kusley.
Frank Gurgon dispatcher, testified that at
approximately 9 o'clock in the morning of December 6,
1967, he called Kusley on the telephone and offered him
55,000 pounds of pipe. Kusley said he did not want it and
asked what else Gurgon had to which Gurgon replied that
he had nothing else at that time.
Gurgon testified to receiving a U.S. Steel order that
morning to pick up a 33,000 pound load of steel for
delivery to Flint, Michigan. Gurgon offered the load in
turn to the four drivers then on the board, Petersimes,
Mida, Tilston and Phyllis, all of whom turned it down.
Petersimes and Tilston were then ordered to deadhead to
Middletown, Ohio and Phyllis and Mida to Cleveland,
Ohio . Phyllis and Mida succeeded in gaining permission
from the Respondent to change destination to their home
terminal, Detroit, Michigan. According to the testimony
of Petersimes he complained to Gurgon over being
ordered to deadhead to Middletown, Ohio and then asked
Gurgon to give him the 33,000 pound load which he had
previously turned down, instead of the deadhead.
According to Petersimes, Gurgon refused to do so stating
that Petersimes was already dispatched, and Gurgon
would not move to change his dispatch and to substitute
the 33,000 pound load which was then available in lieu of
the deadhead. In his testimony Gurgon confirmed the
version given by Petersimes.
A. He was already dispatched.
Q. You mean he was already out on the road?
A. My orders come at 10:15 to send these four units
in after they decline the material of approximately 9:30.
Once a dispatch is issued under rare circumstances do
we change.
Q. You mean you would rather send a man empty to
Cleveland or Middletown rather than let him take a
load of 33,000 pounds on his way?
A. No. This is company dispatch, this isn't anything
I myself personally want to do.
Q. Didn't you say occasionally you make an
exception?
A. In other words it all depends if a man's wife is
sick naturally we'd send him home.
Q. Didn't Petersimes tell you "I'll take the load
rather than go empty."
A. Definitely.
Q. Did you make any attempt to call Indianapolis?
A. No, I did not.
Q. You just said "you're on your way to
Middletown?"
A. "My orders are to send you four out empty."
Gurgon testified that with respect to the change of
dispatch from Cleveland to Detroit for Phyllis and Mida
the change was made at the request of Mr. Whitchurch to
the central dispatch office. Gurgon stated that Petersimes
did ask him to call the central dispatch office to see if he
could be given the 33,000 pound load but Gurgon refused
to do so. Gurgon testified that at this time he was trying
to get another unit to go in to the city of Chicago to pick
up 23,000 pounds of machinery to haul in conjunction
with the 33,000 pounds.
According to Gurgon, Whitchurch called Kusley at
about 11:20. The record indicates that at 10:15 that
morning both Gurgon and Whitchurch knew there were
no available drivers for the 33,000 pound load and yet
they did not call Kusley until almost 11:30.
Q. Any particular reason for that?
A. Yes, because the same mill might have 33,000
pounds going to the same time and then I would have
given him
Q. You were waiting?
A. Hoping to get a fill for that load.
Q. When it came to the crucial moment you only
gave him half an hour to get there?
A. He had 1 hour.
Gurgon testified that at 2:30 he received a call from
Kusley asking if he had a fill for his truck. According to
Gurgon he advised Kusley he could have a fill of either
65,000 or 80,000 pounds. According to Gurgon, he and
Whitchurch were suspicious and checked by telephone at
the mill only to find Kusley had not yet arrived there.
Gurgon testified that Whitchurch cancelled out the order
"because of inefficiency to perform on our service."
Gurgon testified it was shortly after 3 o'clock that
Whitchurch cancelled the load, that he "had enough
problems with the mill from 11:30 in the morning until
3:30 in the afternoon." The record also indicates that the
Respondent got in touch with a substitute driver for the
YELLOW TRANSIT FREIGHT LINES, INC. 675
load "between '2:30 and 3 o'clock or shortly before 3
o'clock . Gurgon testified that he did not know that the
load had been cancelled' until the substitute driver, Brown,
called him about - 3:25 and told him there was no steel,
that it had been cancelled.
Q. Is there any reason , or did Mr . Whitchurch tell
you of any reasons why he didn 't want Brown to take
that load?
A. No.
Q. No reason at all?
A. Except the aggravation we were having at U. S.
Steel with our particular customer on it because I had
checked Mr . Lawrence several times . The first time I
talked to him was at'2:30.
Q. What kind of aggravation were you having at U.
S. Steel?
A. In other words we tried to pride ourselves on our
service and when you start giving a 4 1/2 hour late
pickup or a 3 1 /2 hour it isn 't too good, so in other
words I would say• the aggravation would be on the
mill's (part for having -to check on their particular
material.
Gurgon testified that when Kusley finally came back from
U. S. Steel Kusley put his head in through the window
and asked to be put oil` the bottom of the board . Gurgon
denied that he told Kusley he was going back on the
bottom of the board, but stated that Kusley had asked to
be put back on the bottom of the board . At this time
Gurgon testified that he told Kusley he was out of service,
saying " I have to put ' you out of service , . . . thems per
my orders ." Gurgon testified he had received those orders
at about 3:30 p . m., directly - from the Indianapolis office.
Based on my observation of the' witness Gurgon as he
testified I do not credit his testimony , which I found
strained and unconvincing , particularly his attempt to
portray any so-called aggravation or problem which he
claims to have had with U. S. Steel , and particularly in
view of the testimony of record which would indicate that
U. S. Steel did not pressure the Respondent concerning
the pickup other than to make a normal follow-up call,
and particularly since U . S. Steel was still ready and
agreeable at 3:10 p.m. to permit the late pickup of the
steel by Kusley or the substitute driver.
In this connection , Tom Lawrence an employee of the
U. S. Steel testified that he was a truck dispatcher at the
Merchant Mill at the Gary works, Gary , Indiana. His
duties included - ordering trucks from the carriers and
scheduling them at certain pickup times . Lawrence
testified that on December 6, 1967, he ordered a truck
from the Respondent - sometime in the vicinity of 8:30,
9:30 or 10 in the morning . Lawrence testified further that
prior to this time at the mill there had been no scheduled
pickup times, and drivers could arrive at the mill at any
time between the opening and closing of the mill, but that
the procedure for scheduling a pickup time was just
getting underway. Under this procedure trucks could
pickup during a 1-hour period starting a half hour before
scheduled time to a half hour after scheduled time.
Concerning the 33,000 pound load in question,
Lawrence stated that it was mutually agreed between the
U. S. Steel and the Respondent to have a 12 o'clock
pickup for the load . According to Lawrence , following
normal procedure , sometime after 12 o'clock he called the
Respondent and indicated that the truck had not arrived.
Lawrence testified that under certain circumstances
rescheduling was possible and arrangements could be
made for a later pickup time . He did not recall any
attempt by the Respondent to reschedule the 33 ,000 pound
load for a later pickup time on December 6, 1967.
Lawrence testified that the Respondent's truck arrived to
pickup the 33,000 pound load at 3:10 p.m., that in
accordance with the normal procedure the truckdriver
identified himself over the two-way intercom between the
truck scale and the truck dispatch desk which prompts the
pulling of the file and its dispatch through the pneumatic
tube from desk to scale.
Lawrence testified that about 15, 20 or 30 minutes prior
to 3:10 p.m. he had received a call from the Respondent's
dispatcher advising him to have the driver call his
terminal on arrival at the mill. When the driver arrived at
3:10, Lawrence gave him that information. Although the
load was ready for pickup at that time, Lawrence stated
that the truck did not make the pickup.
Q. Mr. Lawrence, at this time were there any
penalties for coming in late?
A. Not to my knowledge.
Lawrence went on to testify that in his opinion "you
could not get a whole lot of them (Michigan train drivers)
to take a 33,000 pound load, as this is not considered a
good payload but is a partial load." He did state that this
would not be an uncommon load when taken in
conjunction with a fill.
Henry Marszlekv, an employee of U. S. Steel, testified
that on December 6, 1967, he followed Tom Lawrence as
truck dispatcher at the Merchant Mill, that after he
started at about 3:10 or 3:15 p.m. he received a call from
the Respondent's office:
Q. And what was this call?
A. Well, they referred to me that they had problems
and they - we'd like a mutual agreement to - that
they had been having problems, get the load back to us
to you or to the corporation.
Q. Did they turn the load back to U. S. Steel?
A. Yes.
Marszlekv testified further that subsequently at about 3:20
or 3:30 p.m. another of the Respondent's trucks arrived to
make the pickup but that the Respondent in the meantime
cancelled out and turned the load back to U. S. Steel. U.
S. Steel then placed the load with Long Transportation
which subsequently picked it up. -
Whitchurch, district sales manager for the Respondent,
testified concerning the loss of the load:
A. And I called Mr. Tommy Lawrence, a dispatcher
at the merchant mill.
Q. What did you say to Mr. Lawrence?
A. And I told Mr. Lawrence that, as far as Kusley
was concerned, we were wanting to lose the load.
Whitchurch stated further "We were willing to lose the
load as far as Kusley was concerned. I was tired of
fooling around with it. We were not serving our
customer."
In this connection, it is interesting to note that a
perusal of the U. S. Steel inbound truck record for
December 6, 1967, would indicate that the newly instituted
scheduled pickup procedure was at that time being
honored by the carriers in the breach as well as in the
observance, and that the Respondent's 3:10 arrival for a
noon pickup was not an uncommon occurrence for that
day. The Respondent's expressed concern over Kusley's
failure to make a prompt pickup appeared to me to be
strained and unconvincing under the circumstances,
particularly since the record is devoid of any testimony
indicating that U. S. Steel was indeed upset over this or
had notified the Respondent of its displeasure, and in view
of the fact that the procedure for prompt pickup was in its
infancy and not fully established.
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent makes much of the argument that
Kusley could have rejected the load at 11:30 a.m., but
instead waited over 3 hours to report to the mill, even
though he was aware of the nature of the load and its
scheduled pickup time . I am not persuaded , in view of my
crediting the testimony of Kusley , that Kusley could have
rejected the load at 11:30 a.m ., but regardless of whether
or not the load was forced , and accepting the fact that
Kusley did not reject the load , I am not convinced that
Kusley was specified by the Respondent as a voluntary
quit because he did not report to the mill for over 3 hours.
For there is ample , credible testimony of record to
convince me, and I find , that Kusley was a key figure in
the concerted activities carried on by the employees of the
Respondent , which concerted activities were protected by
the Act ; that the Respondent had clear knowledge of and
was well aware of Kusley ' s activities ; that Kusley was
given very short notice of the pickup even though the
Respondent could have given him much more timely
notice but failed to do so for a stated reason which is not
convincing on this record; that Kusley did not just fail to
report to the mill on the day in question , but was engaged
in an effort to contact Gurgon and to arrange for what
would appear to be a reasonable and satisfactory transfer
of the load; that the Respondent made it clear to its
customers that it would actually prefer to "lose the load"
insofar as Kusley was concerned , and I am convinced and
I find that Respondent did in fact deliberately lose the
load, in order to place Kusley in the position of
technically qualifying as a voluntary quit , even though the
record indicates that it would have been possible for the
Respondent and agreeable to the customer to seek a
rescheduling of the pickup to a later time that day, and
even though , in fact , both Kusley and a substitute truck
could have picked up the load at 3:10 with no loss had it
not been for the precipitate cancellation by the
Respondent.
The Respondent also argues that Kusley was not an
elected steward or representative of his union. It is well
settled that the protection of the Act covers employees
engaged not only in union activities but concerted
activities engaged in for the purpose of collective
bargaining or other mutual aid or protection . While not a
union steward or representative, Kusley has been
established on this record as a key mover in the concerted
and protected activities of the employees of the
Respondent.
The manner in which the load was assigned to Kusley,
the strained explanation of the Respondent for its refusal
to effect a simple transfer of the load for the convenience
of the drivers , in the face of its rescheduling other drivers
for their convenience , and that actions of the Respondent
indicating that it preferred to lose the load under the
circumstances herein , all convince me and I find that the
Respondent specified Kusley as a voluntary quit, and
thereby constructively discharged him, because it desired
to get rid of him due to his key role in the protected
concerted activities of its employees and because he filed
charges with and gave testimony to the Board in
connection with such activities as charged in the
complaint ; all the foregoing in violation of Sections
8(a)(1), 8(a)(3) and 8 (a)(4) of the Act. I find also that by
this substantial unlawful conduct the Respondent clearly
violated the Settlement Agreement hereinabove referred
to.
There was evidence of record by the Respondent
indicating that Kusley had been terminated at various
times in the past by the Respondent as a voluntary quit
and for other infractions , had taken these matters to
grievance and had been reinstated as a result of each
grievance . I have given this testimony no weight in
arriving at the decision in this case . If I were to accord it
weight I would be inclined to find it favoring an inference
that in the case of Kusley the Respondent had established
a pattern of being "trigger happy" in its use of the
discharge in circumstances which would not withstand
subsequent objective scrutiny.
B. The Alleged Interference, Restraint and Coercion
Roscoe Gibson testified that in February 1967, when he
was a driver-operator for the Respondent , he had a
discussion with Jess Ward in the Dunes Center Truck
Stop in Gary, Indiana . According to Gibson, after the
others who had been present left, Ward stated to him
"Mr. Kusley and Mr. Starr are getting quite reputations
as agitators ." He testified further that about a week
before that he had a discussion with Gurgon in which, as
Gibson put it, "he said you guys aren ' t going to get what
you want."
Gibson testified further to a telephone conversation
which he overheard at the terminal around October 23,
when Whitchurch and Gurgon were in the dispatch room
with the door opened.
Well, he was on the telephone . I don 't know who he
was talking to but he kept saying that this man don't
want to come back to work. Mr. Kusley does not want
to come back to work. He doesn 't want to come back
to work. " If this S . O. B. comes in here we will put him
back to work, we don't want him but we 'll put him
back to work. We signed a contract."
Gibson testified that a few days after Kusley was
discharged in December , Whitchurch was talking generally
with the drivers " fishing for information as to what Mr.
Kusley was trying to do and he made a departing remark
over his shoulder `we'll get the S. O. B. no matter what it
cost us.' " I was impressed by Gibson' s straightforward
testimony and his responses on cross -examination, and
credit his testimony which was also partially corroborated
by witness Emil Herder another driver-operator employee
of the Respondent whose testimony I also credit. While
Whitchurch denied making these remarks , based on my
observation of him as he testified, I was not convinced by
his testimony . Accordingly, I find that the Respondent,
through Gurgon , and Ward , let employees know that they
were singling out employees who were active in the
protected concerted activities of the employees and were
identifying them as agitators , and that the Respondent
through Gurgon coercively indicated to its employees that
their concerted activities were going to fail, and that by
the foregoing , under the circumstances, the Respondent
interfered with , restrained and coerced the employees of
the Respondent in the exercise of rights guaranteed to
them in Section 7 of the Act in violation of Section
8(a)(1) of the Act as charged in the complaint.
Joseph Starr, an employee of the Respondent prior to
being injured , testified that he had attended meetings for
the purpose of bettering working conditions for employees
of the Respondent, that in December 1966, he failed to
meet the ICC requirements of turning in his logs on a
daily basis . According to Starr he had accumulated 9 days
of logs . Prior to this time according to Starr when he
failed to turn in logs he was merely advised to turn them
in. A notice came over the teletype that he was not to
receive any money . As Starr was pressed for money he
discussed this with Gurgon who pointed out the teletype
YELLOW TRANSIT FREIGHT LINES, INC.
instructions. Starr. then contacted Stultz and indicated that
he had the logs available and wanted his money. When
Stultz refused, Starr called the office in Kansas City. He
was advised' by Kansas City that his money should not
have been withheld. Subsequently, Stoltz notified him by
telephone that he would be paid but would also receive a
letter of reprimand. While Starr stated that he knew of
the ICC requirement of daily turn in logs, he testified that
the general practice was to hold them for several days and
to turn them in at the end of the week, and that many
times drivers would hold logs for 30 days before turning
them in. This testimony as to the practice was not
controverted and I credit Starr's version, and in fact
Stultz testified that this was the only time the Respondent
had withheld a paycheck because of failure to turn in logs.
Accordingly I find that the Respondent, with knowledge
of Starr's concerted activities deliberately withheld his
paycheck and threatened him with a reprimand under
circumstances which convince me that this was done
because of his concerted activities protected by the Act, in
violation of Section 8(a)(1) of the Act as charged in the
complaint.
Starr testified further that Gurgon, in a discussion with
two or three drivers, subsequent to a meeting over
working conditions in about March 1967, told him "the
Company don't really need this steel division, they can
have just a couple of trucks and shut her down just to
keep the rights, just keep a couple of trucks." I credit the
testimony of Starr and note that Gurgon, in his testimony,
partially corroborated it. I find that the statement made
by Gurgon under these circumstances, amounts to a threat
to shutdown in view of the concerted activities of the
employees, and that by such action the Respondent under
the circumstances herein, interfered with, restrained and
coerced its employees in the exercise of rights guaranteed
to them by Section 7 of the Act in violation of Section
8(a)(1) of the Act, as charged in the complaint.
From the foregoing, and additional ample, credible
testimony of this record I am also convinced and I find
that the Respondent interrogated employees of the
Respondent concerning their protected concerted activities
as charged in the complaint, thereby interfering with,
restraining and coercing the employees of the Respondent
in the exercise of rights guaranteed to them in Section 7
of the Act in violation of Section 8(a)(1) of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of the Respondent set forth
in section II, above, occurring in connection with the
operations of the Respondent described in section I above,
have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
CONCLUSIONS OF LAW
1. Yellow Transit Freight Lines, Inc., Special Hauling
Division, is, and has been at all times material to this
proceeding, an employer within the meaning of Section
2(2) of the Act.
2. By constructively discharging William Kusley on
December 6, 1967 because of his union and other
protected concerted activities engaged in for the purpose
of collective bargaining or other mutual aid or protection,
and because he filed charges with the Board, the
677
Respondent discriminated against Kusley in his hire and
tenure of employment and terms and conditions of
employment and has discouraged the Union and other
protected concerted activities of its employees and has
engaged in and is engaging in unfair labor practices within
the meaning of Sections 8(a)(1), 8(a)(3) and 8(a)(4) of the
Act.
3. By interrogating its employees concerning their
protected concerted activities and desires; withholding the
paycheck of, and threatening to reprimand an employee
because of his protected concerted activities; threatening
to shutdown certain operations if the employees continued
to engage in protected concerted activities; and by warning
employees that some employees were getting the
reputation of being agitators because of their protected
concerted activities and that the employees would not
achieve results with their concerted activities; the
Respondent interfered with, restrained and coerced its
employees in the exercise of rights guaranteed to them by
Section 7 of the Act, and thereby engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged, in
various unfair labor practices affecting commerce, I shall
recommend that it be ordered to cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Having found that the Respondent unlawfully
discharged William Kusley on December 6, 1967, I shall
recommend that it be ordered to offer him immediate and
full reinstatement to his former or 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 by reason of the
discrimination against him by payment to him of a sum of
money equal to that which he normally would have earned
from the aforesaid date of discharge to the date of
Respondent's offer of reinstatement, less his net earnings
during such period. The backpay provided herein shall be
computed on the basis of calendar quarters, in accordance
with the method prescribed in F. W. Woolworth
Company, 90 NLRB 289. Interest at the rate of 6 percent
per annum shall be added to such net backpay and shall
be computed in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716.
The General Counsel requests that in addition to
backpay, the Respondent be ordered to make Kusley
whole for the value of his tractor and trailer which the
General Counsel contends was lost to Kusley by reason of
the Respondent's unlawful discharge of Kusley on
December 6, 1967. If in fact Kusley lost his equipment as
a clear consequence of the discriminatory action of the
Respondent I would be disposed to recommend an order
requiring the Respondent to make Kusley whole through
the application of some appropriate measure of loss such
as the value of the property at the time of loss or the
current cost of replacement of substantially similar piece
of equipment. However, I do not reach this question, for
after careful consideration of the testimony of record I am
unable to ascertain or determine whether or not Kusley
actually was deprived of his equipment, the nature of his
ownership, if any, of such equipment, and whether or not
such deprivation, if any, clearly resulted as a consequence
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the unlawful action of the Respondent. Accordingly I
will not recommend the issuance of an order making
Kusley whole for the alleged loss of his equipment.
Because of the Respondent 's unlawful acts , its violation
of the settlement agreement , and its discriminatory
discharge of employee Kusley, it is reasonable to conclude
that the Respondent in the future, unless specifically
enjoined may deny its employees their statutory rights not
only in these, but in other ways as well. Therefore, I shall
also recommend that the Respondent be ordered to cease
and desist from in any other manner interfering with,
restraining , or coercing its employees in the exercise of
their rights guaranteed by Section 7 of the Act.
RECOMMENDED ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Relations
Board hereby orders that the Respondent, Yellow Transit
Freight Lines , Inc., Special Hauling Division , its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging the Union and other protected
concerted activities of any of their employees by
discharging or in any other manner discriminating against
any employee in regard to hire, tenure of employment, or
any other term or condition of employment because of
such union or other protected concerted activity.
(b) Interfering with, restraining , and coercing its
employees in the conduct of activities protected by the Act
by coercively interrogating and threatening employees
concerning their union and other protected concerted
activities ; withholding paychecks and threatening
reprimands because of such activities ; threatening to
shutdown certain operations if the employees continued to
engage in protected concerted activities ; warning
employees that some are getting the reputation of being
agitators because of their protected concerted activities
and that the employees would not achieve results with
such activity.
(c) In any other manner interfering with , restraining, or
coercing employees in the exercise of their right to
self-organization , to form, join, or assist any labor
organization , to bargain collectively with representatives
of their own choosing , to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or
protection , or to refrain from any or all such activities.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer to William Kusley immediate and full
reinstatement to his former or substantially equivalent
position , without prejudice to his seniority or other rights
and privileges, and make him whole in the manner set
forth in the section of this Decision entitled "The
Remedy."
(b) Notify the above-named employee if presently
serving in the Armed Forces of the United States of his
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended , after discharge
from the Armed Forces.
(c) 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 analyze the amounts of backpay due
to William Kusley.
(d) Post at its Gary, Indiana, terminal, copies of the
attached notice marked "Appendix."' Copies of said
notice on forms to be provided by the Regional Director
for Region 13, after being duly signed by the Company's
representative, shall be posted immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter , in conspicuous places , including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken to ensure that such
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 13, in
writing, within 20 days from the receipt of this Decision,
what steps the Respondent has taken to comply herewith.'
'In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board' s Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify the Regional Director for
the Thirteenth Region , in writing , within 10 days from the date of this
Order , what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT try to discourage you from your union
and other protected concerted activities engaged in for
the purpose of collective bargaining or other mutual aid
or protection and from filing charges or giving
testimony to the National Labor Relations Board by
discharging any employee , or in any other manner
discriminating against our employees in regard to hire
or tenure of employment or any other term or
condition of employment because of your union
membership or protected concerted activities.
WE WILL NOT interrogate nor threaten any of our
employees concerning their union membership or
activities; nor withhold paychecks or threaten
reprimands because of such union membership or
concerted activity.
WE WILL NOT try to discourage you from union or
concerted activities by threatening to shutdown certain
operations and identifying active participants in union
and concerted activity as agitators.
WE WILL offer William Kusley his former job with
all of his rights, without prejudice to his seniority, and
make him whole for any loss of pay he may have
suffered as a result of our discrimination against him.
All our employees are free to become or remain, or
YELLOW TRANSIT FREIGHT LINES, INC.
refrain from becoming or remaining, members of any
labor organization.
Dated By
YELLOW TRANSIT
FREIGHT LINES, INC.,
SPECIAL HAULING'
DIVISION
(Employer)
(Representative) (Title)
Note: Notify William Kusley if presently serving in the
Armed Forces of the United States of his right to full
679
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended , after discharge from the
Armed Forces.
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.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board' s Regional Office, 881 U. S.
Courthouse and Federal Office Building , 219 South
Dearborn Street , Chicago , Illinois 60604 , Telephone
353-7597.