Braswell Motor Freight Lines

National Labor Relations Board - Board Decisions

Jan 12, 1954

107 N.L.R.B. 761 (N.L.R.B. 1954)

CAPITOL SMOKED FISH CORP. 761
WE WILL NOT interrogate our employees regarding their union membership or
activities , or threaten or warn them against union membership or activity
WE WILL NOT discourage membership in Fish, Sea Food, Smoked Fish & Canning
Workers Union of Greater New York, Local 635, Amalgamated Meat Cutters & Butcher
Workmen of North America, AFL, or any other labor organization of our employees,
by discharging any of our employees, or in any other manner discriminating against
them in regard to their hire , tenure of employment , or any term or condition of em-
ployment.
WE WILL NOT in any manner interfere with, restrain , or coerce our employees in
the exercise of their right to self - organization , to form labor organizations , to join or
assist Fish, Sea Food, Smoked Fish & Canning Workers Union of Greater New York,
Local 635, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL, or
any other labor organization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any or all such activi-
ties except to the extent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as authorized in Section 8
(a) (3) of the Act.
WE WILL make whole Jacob Lubitz for any loss of pay he may have suffered by reason
of his discharge
CAPITOL SMOKED FISH CORP.,
Employer
Dated ... .
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material.
BRASWELL MOTOR FREIGHT LINES and LOCAL UNION NO.
745, INTERNATIONAL BROTHERHOOD OF TEAMSTERS
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF A-
MERICA, AFL. Case No. 33-CA-192. January 12, 1954
DECISION AND ORDER
On August 4, 1953, Trial Examiner Wallace E. Royster
issued his Intermediate Report in the above-entitled proceed-
ing, finding that the Respondent had engaged in and was engag-
ing in certain unfair labor practices, and recommending that
it cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report at-
tached hereto. The Trial Examiner also found that the Respond-
ent had not engaged in certain other unfair labor practices
alleged in the complaint and recommended dismissal of those
allegations. Thereafter, the General Counsel and the Respond-
ent each filed exceptions to the Intermediate Report and sup-
porting briefs.
The Board has reviewed the rulings of the Trial Examiner
made at 'the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions, the briefs,
107 NLRB No. 154
7 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the entire record in the case , and finds merit in the
Respondent ' s exceptions. 1
1. We do not agree with the Trial Examiner that the pre-
ponderance of the evidence establishes that the Respondent,
in violation of Section 8 (a) (3) and ( 1) of the Act , discrimina-
torily demoted Charles Bartoo from his position as driver
because of his membership in and support of the Union.
Bartoo was originally employed in the Respondent ' s western
division , represented by the Union , but was later transferred to
the eastern division at his own request . He remained a member
of the Union after his transfer to the eastern division and openly
wore his union button . There is no evidence that he was active
in the Union ' s behalf. On August 14 , 1952, Robert Daring, the
Respondent ' s agent at its Dallas terminal, demoted Bartooto a
job on the dock allegedly for failing to follow instructions. The
facts relating to this incident are accurately summarized in the
Intermediate Report.
The Trial Examiner credited Bartoo ' s testimony that, in
effect, Daring instructed him to falsify his log by marking down
8 hours rest as required by Interstate Commerce Commission
regulations , without actually spending that time off duty. The
Trial Examiner found that the reason for Daring ' s action was
his "concern . . . to expedite the arrival of the trailer in
Dallas " However , accepting as true Daring ' s concern , it does
not follow thail he therefore instructed Bartoo to falsify his log.
The evidence is uncontradicted that in terms of the Respondent's
business , there was nothing to be gained by having Bartoo
resume his trip at 4 or 5 p. m. rather than at 8 or 9 p. m., the
time, Bartoo would have left if he had taken 8 hours rest.
Bartoo ' s run from Stanton to Dallas covered 317 miles and was
normally completed in 8 or 10 hours . Bartoo started his
August 11 , 1952, run at 7:30 p . m. and his arrival time at
Dallas would therefore have been between 3 : 30 and 5:30 a. m.
on the following day. The breakdown of his truck resulted in
1 day's delay because it was the Respondent ' s practice to un-
load trailers arriving in Dallas early in the morning and com-
plete the local deliveries during that workday. When Bartoo and
Daring spoke over the telephone about noon on August 12,
Bartoo reported that the repairs would probably be completed
by 4 p . m. of the same day. If Bartoo had taken his 8 hours
rest and then started on duty at 8 or 9 p. m., his trailer (after
the turn around with the relief driver who was sent from Dallas
to meet him ) would have arrived no later than 5:30 a. m on
August 13, in plenty of time for that day's local Dallas delivery.
On the other hand, if Daring had wanted Bartoo to start as soon
as the repairs were completed without taking his prescribed
rest, Bartoo ' s trailer would have arrived in Dallas before mid-
night, but local delivery could still not have been made before
'The Respondent ' s request for oral argument is hereby denied as the record, including the
briefs, adequately presents the issues and the positions of the parties
BRASWELL MOTOR FREIGHT LINES 763
the following morning . Hence, if Daring was worried about his
schedule, he was no better off by having Bartoo leave at
4 p. m. rather than at 9 p.m. In these circumstances, the most
reasonable interpretation of the conflict in testimony between
Daring and Bartoo is that the latter misunderstood the former,
rather than that, as found by the Trial Examiner, Daring in-
structed Bartoo to falsify his log. We so find.
The question remains, whether in demoting Bartoo to dock
work, Daring acted for discriminatory reasons . The evidence
is uncontradicted that on August 12, after the breakdown,
Daring informed Bartoo that he would have a relief driver
take Bartoo's regular run out of Dallas that evening, and
instructed him that when the two met, Bartoo should reverse
his direction and take his regular run back to Stanton, permit-
ting the relief driver to take the repaired truck with its trailer
into Dallas. Daring testified that his reason for wanting Bartoo
to turn around with the relief driver, Nix, was that Bartoo would
then be back on his schedule, and Nix could return to his regular
job at the Dallas terminal the following morning. Instead of fol-
lowing instructions and turning around on meeting Nix , Bartoo
persuaded Nix to continue to Stanton while Bartoo took the
repaired truck into Dallas. On the following evening, Daring
told Bartoo that he was "through" because he had not followed
instructions to exchange with Nix. Later after expostulations
by Bartoo, Daring told him he would no longer be permitted to
work as a driver, but could have work on the dock. Bartoo
accepted this offer and continued working for the Respondent
as a dockman until October, when he quit.
It is apparent that the truck breakdown incident and its
aftermath could not have been planned in advance to entrap
Bartoo, because Daring could not have known that the truck
would break down or that Bartoo would refuse to follow in-
structions. The Trial Examiner found, nevertheless, that
Bartoo ' s demotion resulted from a "scheme to discriminate
against members . . . of the Union . . . and that Daring was its
designer." In making this finding, the Trial Examiner relied on
the testimony of Claymon Marshall, a former employee of the
Respondent, who stated that in March 1952, Terminal Manager
Roberts asked him if he was a member of the Union and that
when Marshall answered affirmatively, replied that if he could
"get something on" Marshall, he would fire him. Marshall also
testified that Terminal Manager Daring, who succeeded Roberts,
questioned him about possible union membership, told himthat
Bartoo was believed to be one of the union organizers, and that
he was trying to find an excuse to fire him. He also said, after
Bartoo was demoted, that getting rid of Bartoo was a "stroke of
genius," and that Marshall was to put Bartoo to work on the dock
and later find some reason for lettinghim go. Both Roberts and
Daring denied the statements attributed to them by Marshall.
There are certain improbabilities in Marshall's testimony,
apparently not considered by the Trial Examiner, which per-
7 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suade the Board that Marshall was not a credible witness.
Thus, Marshall testified that in March 1952, Terminal Manager
Roberts threatened to discharge him for belonging to the Union,
yet 3 months later Daring, Roberts ' successor , promoted Mar-
shall, confided his antiunion sentiments to him, instructed him
to spy on the Union, and explained his antiunion motivation in
demoting Bartoo . It seems improbable that the Respondent would
threaten Marshall with discharge for union membership at
one time, and then only 3 months later promote him and make
him a confidant of its antiunion plans . It is of course possible
that Roberts might not have passed on to his superiors and
successor the information about Marshall ' s union membership.
But we think this unlikely . The more reasonable explanation is
that Roberts neither questioned Marshall about his union
membership nor made the threat attributed to him. Marshall
also testified that Daring asked him to find out if Bartoo was a
union member , yet Bartoo , who was a transferee from the
western division which was represented by the Union, himself
said that he always wore his union button on his belt and made
no effort to hide his union membership . Marshall ' s further
testimony that Daring said he was trying to find an excuse to
fire Bartoo , that getting rid of Bartoo as a driver was "a
stroke of genius," and that Marshall was to find some reason
for discharging Bartoo as a dockworker does not ring true.
If Daring wanted an excuse for discharging Bartoo, he had a
perfect one in Bartoo ' s admitted disregard of instructions.
Assuming antiunion motivation , Daring's demotion of Bartoo
would be no less unlawful than an outright discharge. If the
Respondent ' s objective was to defeat the Union ' s organizing
efforts, it would seem much more logical to discharge him
outright rather than to employ him at the dock where he would
be in constant contact with other employees and in a better
position to promote union propaganda . In view of these im-
plausibilities in the testimony of Marshall, we are constrained
to overrule the Trial Examiner's finding crediting his testimony
because we believe such finding is contraryto the preponderance
of the evidence on the record considered as a whole . 2 There is
no other substantial evidence that in demoting Bartoo, the Re-
spondent was motivated by antiunion considerations . Accord-
ingly, we hereby overrule the Trial Examiner's contrary con-
clusion and shall dismiss this allegation of the complaint.
2. The Trial Examiner found that the Respondent had inde-
pendently violated Section 8 (a) (1) of the Act by: (a) Robert's
interrogation and threats to Marshall while the latter was a
rank-and-file employee; (b) Daring's instructions to Marshall
after he became a supervisor to find out who were union mem-
bers and to discharge them on some pretext; and (c) the al-
leged threat made to Coffey by Kirkpatrick, business agent of
the dominated Union of Transportation Employees, that drivers
2 Standard Dry Wall Products, 91 NLRB 544.
BRASWELL MOTOR FREIGHT LINES 765
would suffer a loss of earnings if they did not revoke their
membership applications in the Union. As (a) and (b) rest on
the testimony of Marshall which we have discredited, the find-
ing of a violation of Section 8 (a) (1) insofar as it is based on
such testimony is hereby overruled. As to (c), Kirkpatrick's
threat to Coffey, we find, without deciding whether the Re-
spondent may be held responsible for Kirkpatrick's acts, that
the isolated nature of the remarkdoesnotwarrant the issuance
of a cease-and-desist order.
3. We agree with the Trial Examiner that a preponderance
of the evidence does not establish that the Respondent discharged
employee Coffey for discriminatory reasons.
4. In view of our dismissal of the other allegations of the
complaint, we do not consider that any useful purpose would be
served by issuing a remedial order in the case of the alleged
discriminatory refusal to temporarily employ Locke, who
suffered no financial loss as the result of such refusal and does
not seek reinstatement.
In accordance with the foregoing, we shall dismiss the com-
plaint in its entirety.
[The Board dismissed the complaint.]
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges filed by Local Union No. 745, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL, herein called the Union, the
General Counsel of the National Labor Relations Board issued his complaint against Braswell
Motor Freight Lines, herein called the Respondent, alleging that the Respondent had committed
and was committing unfair labor practices affecting commerce within the meaning of Section
8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended,
61 Stat. 161, herein called the Act.
In respect to unfair labor practices, the complaint alleges that on various occasions in and
since March 1952 the Respondent through its agents threatened and worked reprisals against
its employees because of their interest or membership in the Union; instructed a supervisor
to find pretext to discharge members of the Union; and on March 10, June 27, and August 14,
1952, discriminatorily discharged or otherwise affected the tenure and terms of employment
of R. B. Redding, John Coffey, and Charles G. Bartoo, respectively.
Respondent's answer denies the commission of unfair labor practices.
Pursuant to notice, a hearing was held before the undersigned Trial Examiner in Fort
Worth, Texas, from May 25 through 29, 1953. All parties were represented, were afforded
opportunity to examine and cross-examine witnesses, and to introduce evidence relevant to
the issues. I reserved ruling on the motion made by counsel for the Respondent at the termi-
nation of taking of evidence to dismiss the complaint in its entirety. The motion is disposed
of in accordance with the findings, conclusions, and recommendations hereinafter made.
Briefs have been received and considered from counsel for the General Counsel and from coun-
sel for the Respondent.
Upon the basis of the entire record and from my observation of the witnesses. I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Texas corporation with its principal office in El Paso, Texas, and is
engaged as a common carrier by truck in the transportation of goods and merchandise
337593 0 - 55 - 50
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between Los Angeles, California, and terminals in Texas. The Respondent operates under
certificates granted by the Interstate Commerce Commission and is an instrumentality of
interstate commerce.
II. THE ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership employees of the Respondent.
Ill. THE UNFAIR LABOR PRACTICES
Respondent 's operations are divided into a western and eastern division . The western di-
vision , between El Paso and Los Angeles , is operated with the use of larger equipment than
the regulations in Texas permit ; the drivers from El Paso west are represented for purposes
of bargaining with the Respondent by union locals affiliated with the same parent as the charg-
ing Union . Until 1950 , the drivers and other employees of the Respondent working from El Paso
east were without representation . In that year the Respondent recognized and contracted with
Union of Transportation Employees , herein called UTE, in respect to the wages , hours, and
working conditions of substantially all operating employees in the eastern division . In December
1952 , the Board found that the Respondent had dominated and interfered with the administration
of UTE and ordered it to cease doing so, to withdraw recognition , and to cease giving effect
to an existing collective -bargaining contract or any extension or renewal thereof. i There has
been no compliance with the Board's Order. At the time of the hearing in the case here for
decision , the Respondent and UTE were parties to a current contract under which the repre-
sentative status of UTE was continued.
In early 1952 , the Union began a campaign to organize the drivers and dockworkers in the
eastern division . An organizer , D. L. Miller, visited Respondent 's terminals and stopover
points in Texas for that purpose . Among those who signed a designation at the solicitation
of Miller was R. B. Redding, a driver living in San Antonio . Miller testified that about Feb-
ruary 7, 1952 , he telephoned Redding and asked the latter to attempt to interest the dockwork-
ers in San Antonio in the Union.
The southern branch of Respondent 's eastern division extends from El Paso to Houston.
Terminal docks are maintained at El Paso , San Antonio , and Houston . Road drivers are sta-
tioned at El Paso , Marfa, San Antonio , and Houston . For the road drivers , a round trip between
El Paso and Marfa or between San Antonio and Houston constitutes a normal workday. A
round trip between San Antonio and Marfa requires 2 days . In February 1952 , 8 drivers were
required to man the runs between San Antonio and Marfa; 4 traveling east and 4 west on the
6 days of operation each week . Two of the four trucks arriving in San Antonio from the west
each day were unloaded there at the dock ; their freight being delivered locally by city drivers.
The other 2 after a change of drivers , continued to Houston . The freight content of 2 of the 4
westbound trucks leaving San Antonio daily originated in Houston , the interruption of the
journey at San Antonio being occasioned only by the necessity to change drivers . The other 2
trucks were loaded at the San Antonio dock . In February , the Respondent decided to move its
San Antonio terminal to another point in that city . The move was completed and the old termi-
nal entirely abandoned by Monday , February 18. At the suggestion of some of the drivers, or
perhaps entirely upon his own initiative , C. H. Calvert , the terminal agent , decided to have
the drivers of trucks from or to Houston exchange at a filling station a short distance west
of the city limits on the highway . Thus a driver coming from Marfa with a truck billed to
Houston would terminate his run at the filling station where another driver would take over.
A driver bound for Marfa with a truck loaded in Houston would begin his run at the same
point , there relieving the driver who had brought the vehicle from Houston . Calvert explained
that the new terminal location was 22 miles farther from the highway than the old and that
the change eliminated the necessity of driving that distance through narrow and congested
streets. Still according to Calvert, he decided to make the change effective several days
before the move to the new terminal as construction near the old made it impossible for more
than one truck to be parked at the dock.
In June 1951 , R. B. Redding was hired as a road driver and for the last several months of
his employment operated a run between San 'Antonio and Marfa . Having designated the Union
to represent him, Redding in conversations with other drivers and dock employees spoke of
benefits to be derived from union membership . According to Redding , he and Calvert got
'Braswell Motor Freight Lines, 101 NLRB 1151.
BRASWELL MOTOR FREIGHT LINES 767
into a discussion about the Union on one occasion ; Calvert saying that the Union had earlier
tried to organize Respondent 's employees without success , that the current effort would meet
the same end , and that he preferred that Redding not bother the dock employees about it.
Calvert testified that his dock foreman complained that Redding was interfering with their
work by talking to them during working time . Without knowledge that Redding was talking
about the Union , according to Calvert , he told Redding to cease diverting the employees from
their duties . Redding testified that he invariably began his run from San Antonio at Respond-
ent's terminal and that this routine was not changed when the terminal location was moved.
The evidence establishes that on his return trip from Marfa he was usually (but perhaps not
always ) pulling a trailer billed to the Houston terminal so that normally another driver would
take over at San Antonio for the remainder of the journey . Redding always brought his truck
into the San Antonio terminal and never exchanged with the Houston driver at the filling station
point mentioned above.
In early February , having decided that convenience and efficiency would be promoted by
doing so . Calvert, he testified , instructed all drivers pulling Houston trailers to exchange at
the filling station and no longer to drive into the terminal . Additionally , according to Calvert,
a letter containing this instruction over the signature of Braswell was posted about February 14
at the San Antonio terminal. Drivers Franks and Moore , operating between San Antonio and
Houston , testified that they received such instruction and began the practice early in the
month. Redding denied that Calvert had given hun any specific instruction in the matter, said
that he had seen no bulletin concerning it, and testified , in sum , that although he had heard
some talk among the drivers that such a change was to occur and had, about February 15,
1953 , seen such an exchange made atthefilling station , he was not aware that he was expected
to leave his truck there . Calvert testified that he learned that Redding was not making the
exchange in accordance with instruction , so spoke to him about it. Redding said that he had
forgotten about the instruction , so pulled on into the terminal . When, according to Calvert,
the same thing happened on a subsequent occasion , Redding offered the excuse that his car
was parked at the terminal where his last run from San Antonio had begun . Driver Moore
testified that he complained both to Redding and to Calvert that he had gone to the fill-
ing station to make the exchange to find that the truck was at the terminal several miles
away.
On Sunday February 24, Redding pulled into the filling station at the completion of his
run from Marfa and telephoned the terminal for instruction about where to leave his
truck. Because of the day, no one answered so he pulled on to the terminal and went home.
The next day , Joe V . Braswell, Respondent 's president , telephoned him, asked if he did
not know how to follow orders , and, although Redding protested that he had no orders
about where to leave his truck, told Redding he was discharged . It is the theory of the
complaint that the discharge was discriminatory in retaliation against Redding's activity
in behalf of the Union . The General Counsel would have it either that there was no re-
quirement of exchange at the filling station or that Redding was deliberately misled in
that connection in order to provide a plausible pretext for discharge.
There can be little doubt (and I have none) that the Respondent opposed the organizational
efforts of the Union . The domination of UTE which the Board found and of which I take notice
is a demonstration of Braswell 's purpose to circumvent the command of the Act. It was argued
at the hearing that the Respondent is indifferent to the action of the employees concerning a
union. It was pointed out that drivers west of El Paso for years have been represented by
sister locals of the Union . I have considered this circumstance . But from Braswell's own
testimony it appears that the bargaining relationship which exists there was , initially at
least, not conceived in deference to the desires of the employees involved but rather to permit
the Respondent unhindered access to terminals in Los Angeles which, it is suggested, were
subject to some control by a Union . As the Board recently held: 2
One can think of many situations where an employer may have good collective bar-
gaining relations with some groups of employees but be hostile to, or at least oppose,
the unionization of others . Collective bargaining relationships are moulded by varying
factors, and not the least of these may be the number of employees involved, the extent
and strength of organization among them , traditions of bargaining among employees
performing the type of work involved, the relative extent to which a strike among a
given group may affect the employer 's operations, the relative economic power of the
employer and the union involved , and the availability of a given labor supply. It is thus
2 United Biscuit Company of America, Union Biscuit Division , 101 NLRB 1552.
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unrealistic to conclude that because an employer has good collective bargammg relations
with one group of employees, it inevitably follows that he will not commit unfair labor
practices with respect to another group, particularly one that has no history of collec-
tive bargaining....
Other conduct 3 by the Respondent which was the subject of evidence in this case and which
will later be discussed demonstrates that the Respondent harbored an animus against the in-
cursion of any labor organization into the field which it had reserved for UTE. It is argued
further that the Respondent had no knowledge that Redding was a union proselyte or pro-
tagonist. I am convinced however, and find, that Calvert and Redding conversed concerning
an earlier attempt by some union to organize Respondent's employees, that the conversation
occurred in context with Calvert's request that Redding not bother the dockworkers, and
that Calvert was then aware that Redding had been talking to that group concerning the
Union But, upon analysis, Redding's testimony does not satisfactorily support the General
Counsel's position that Calvert had never instructed him to leave his truck at the filling
station. Redding said from the stand that Calvert had given him "no definite instruction,"
that he did not know "offhand" of any occasion when driver Moore had gone to the filling
station to take Redding's truck to discover that it had not been left there, and that the drivers
were "just talking among ourselves" about such a routine. Upon consideration of the positive
testimony of Calvet, Moore, and Franks concerning instructions given and the half-admissions
of Redding in that connection, I am convinced, and find, that Redding was aware of what he was
expected to do with his truck upon arrival at San Antonio and that he chose to drive on to the
terminal. Evidence that Redding might have preferred to leave the truck at the filling station
because his home was nearer to that point than to the terminal loses force when met with
Calvert's undenied and credited testimony that Redding on some occasions at least, left his
personal car at the terminal where he began his run from San Antonio. Obviously, Redding's
convenience was served by driving the truck to the point where he had left his car.
Although I am convinced that the Respondent looked with disfavor on those who supported
the Union and, as will be found, discharged another driver discriminatorily, I do not find
that the evidence establishes by its preponderance that Redding was such a victim. Cause for
discipline existed when Redding persistently failed to leave his truck at the filling station
thus discommoding the Houston driver, unnecessarily subjecting Respondent's equipment to
traffic hazards, and driving unprofitable miles. I will recommend, therefore, that the com-
plaint as to Redding be dismissed.
John Coffey became Respondent's employee as a road driver in July 1949. He had theretofore
been a member of the Union but at about the time of his hire secured a withdrawal card. In the
summer of 1950, Coffey joined UTE. There is no evidence that he formally terminated that
membership. In January or February 1952, at the solicitation of Miller, Coffey took action to
reactivate his union membership and in May of that year resumed the payment of union dues.
In late February, according to Coffey, Claude Kirkpatrick, one of UTE's business agents,
urged Coffey to revoke his designation of the Union saying that Coffey would be regretful
unless he did so for Braswell would rearrange the runs so that the drivers would earn less
money. Kirkpatrick, although agreeing that he had asked drivers to revoke union designations,
denied that he had ever threatened that they would regret not doing so.
At 2 a. m. on June 26, 1952, Coffey left Stanton on his run to El Paso. Contrary to Respond-
ent's requirements, he did not before leaving fill out the equipment check lists for his truck
and trailer or his daily driver's log for that date. Shortly after 3, he drove through or past
the small town of Penwell continuing at a speed of about 55 miles per hour through 2 zones
posted for a 30 mph maximum. At the westerly edge of the town Braswell, who had been trail-
ing the truck for a short distance, stopped him and asked if he did not know the rules about
speeding. According to Braswell, Coffey answered, "I quit and where do you want this god damn
truck parked." In addition to the speed violation, Braswell learned that Coffey's equipment
sheets were not filled out and, according to Braswell, driver's logs for the 2 previous runs
were not made up. Coffey has a different version of what occurred and testified that after
Braswell stopped him the following colloquy took place:
Braswell: Don't you ever slow down for these places9
Coffey: Well, it don't look like it.
Braswell: Let me see your equipment sheet.
3 The discharge of Bartoo
BRASWELL MOTOR FREIGHT LINES 769
Coffey: Well, sir, I haven 't got it made out.
Braswell : Let me see your log book.
Coffey: It ain't made out either.
Braswell : Well, goddammit , you are fired.
Coffey: Well, this looks like as good a place as any to leave this thing.
Coffey denied that he had failed to complete his logs for the 2 days before this incident and
controverted Braswell's testimony that the latter had actually examined Coffey's copies of
his logs. After the exchange set forth above, tempers flared, profane remarks were passed,
but in a few minutes the truck was parked along the highway and Braswell drove Coffey to a
point where he caught a bus for El Paso. Later in the day Coffey was paid to date as if he had
completed the run to El Paso.
While Braswell and Coffey were stopped, another driver, Winford O'Dell, pulled up.
Braswell checked the speed recording device in O'Dell's truck and discovered that the
latter had driven through the same 30milezones at about 50 mph. His log and equipment sheet
were, however, properly filled out. O'Dell was instructed to report to Clifford Van Doren,
superintendent of drivers at El Paso, for possible discipline. Later that day in a further con-
versation with Braswell, the latter said, according to the credited and uncontradicted testi-
mony of O'Dell, that he would not tolerate speeding, that he had discharged one man that day
because of it and would discharge others if it was not stopped. Within a few days O'Dell was
told that he was placed on probation for 30 days because of the speed violation. At a safety
meeting of drivers in the fall of 1952, Braswell, in apparent reference to Coffey, said that he
had fired a man for speeding.
I conclude that the evidence establishes that Coffey was discharged. Braswell said that he
was to O'Dell and later that year at the safety meeting and, additionally, the payment to
Coffey as if he had completed his run is inconsistent with a quit.
Infraction of Respondent's rules except where gross negligence or personal misconduct
such as drinking was involved did not usually result in the discipline of discharge. Braswell
conceded that he had never discharged anyone for a speeding offense and was not aware that
anyone else in his organization had done so. But Coffey was discharged ostensibly for conduct
which ordinarily would not call for that result. The General Counsel offers the explanation
that the motivation derived from Respondent's hostility to any labor organization threatening
to displace UTE and points to the testimony of Charles Bartoo in that regard. Bartoo, a
driver who himself fell a victim to Respondent's discrimination, testified credibly and without
dispute that in the summer of 1951, Respondent's then superintendent of drivers, William
Johnson, said that if the drivers chose the Union not one of them would be left at the end of a
year. It will be found in following paragraphs of this report that in the very month of Coffey's
discharge, a foreman at the Dallas terminal was instructed by his superior, the terminal
agent, to discover who among the employees belonged to the Union and, having done so, find
a pretext to fire him. Considering these manifestations of discriminatory intent, one would
expect that the Respondent would not deal fairly with an employee detected in a rule violation
if the belief existed that the offender was a union member. It may be that such a belief re-
sided in Braswell as to Coffey and that had it not, Coffey would have escaped on June 26
with a reprimand. The failure to have the equipment sheet and log up to date seems to have
been not a delinquency of major importance and the speeding occurred at a time of night when
danger to anyone because of it was not reasonably to have been anticipated. But I do not find
evidence in the record to support an inference that Braswell knew or believed Coffey to be a
union member. The General Counsel argues (in another connection) that Kirkpatrick, the UTE
business agent, is the agent of the Respondent and Kirkpatrick of course knew that Coffey had
designated the Union. Even making the assumption of agency for the purpose of deciding the
point here discussed, knowledge on the part of Kirkpatrick would supply only constructive
notice in a situation where to prevail, actual notice must appear to exist. The state of Bras-
well's mind on the morning of June 26 on this question may have been as the General Counsel
suggests it was; it may also have been such that he discharged Coffey in mounting irritation
because of the speeding, the equipment sheets, and the log. As I do not consider that the evi-
dence viewed as a whole provides a reliable guide to a solution of the problem. I will not find
that discrimination attended the discharge of Coffey.
Charles G. Bartoo was hired as a road driver west of El Paso in February 1950. A year
later he arranged for a transfer to the eastern division, retaining the vacation and other rights
which his length of employment gave to him, but with a new seniority date. In June of 1951
Bartoo was hospitalized and on reporting back to work was told that he was discharged because
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he had falsely represented himself to have been ill. Bartoo protested that he could establish
the fact of his illness and after a telephone call to Johnson , superintendent of drivers, was
put back to work. A few days later, in a further conversation with Johnson , the latter said he
had heard rumors that Bartoo , who had been a member of the Union when working west of
El Paso, had been trying to organize the drivers on the east end into that organization.
Johnson said , according to Bartoo 's credited and uncontradicted testimony , "Glen, you should
know that even though you organized the Union or that the east end organized, there wouldn't
be a man left within a year after that." Johnson then asked Barton if he had joined UTE.
Barton said that he had not, but shortly thereafter did so.
On August 11, 1952 , Bartoo began a run from Stanton for his destination in Dallas. About
80 miles east of Stanton , at Colorado City, Bartoo discovered that one of his wheel bearings
had burned out. It then being about 9:30 p. m., Barton called Respondent 's shop foreman in
El Paso for instruction and, following it, arranged for a mechanic to come from Odessa about
100 miles away to make the repairs . The mechanic arrived at about 4 the morning of August 12,
diagnosed the difficulty , and arranged to get the necessary parts . Sometime between 8 and 9
that morning, Barton telephoned Robert Daring , Respondent 's agent at Dallas and Bartoo's
superior , to tell him of his trouble. Daring said that he did not know at the moment what
could be done ; that he would call Bartoo later in the day. The mechanic , with Bartoo's
assistance , continued working on the truck . At 1 p. m. (Daring said 11:30 a. m.) Daring tele-
phoned Barton. Barton reported that the repairs would probably be complete about 4 that
afternoon and asked for instruction . Daring suggested sending a relief truck from Dallas to
pull the trailer into Dallas . Barton said that it seemed probable he would be able to get under
way several hours before it could reach him. Daring then said, according to Barton , that the
latter should rent a room, mark off 8 hours rest on his log and, when the truck was ready,
proceed toward Dallas; that Daring would have a relief driver take Bartoo 's regular run out
of Dallas that evening , and when the two met Barton should then reverse his direction and take
his regular run back to Stanton, permitting the relief driver to take the repaired truck with
its trailer into Dallas . The repairs were completed and Bartoo started east from Colorado
City at about 6 p. m. At 10:30 he met Nix, the relief driver, at a point about 80 miles west of
Dallas . Bartoo discussed with Nix the fact that he, Barton, had then been on duty for about
+27 hours and that under Interstate Commerce Commission regulations he could because of
the "emergency" lawfully continue on to Dallas , but not exchange with Nix and return to
Stanton. In consequence , Nix proceeded to Stanton and Barton continued to Dallas, arriving
there about 12:30 a. m., August 13. About 10 o'clock that morning Bartoo went to the Dallas
terminal and explained the situation to Richardson , Respondent 's office manager . Richardson
said, according to Bartoo 's credited and uncontradicted testimony , that Barton had acted
properly in the circumstances . The following evening, August 14, when he was scheduled to
leave Dallas for Stanton , Barton came to the terminal and found another driver in his truck.
Daring told him that he was "through" because he had not followed the instruction to exchange
with Nix. Barton explained his reasons for doing as he did and Daring told him to return in
the morning for final decision . Barton did so and was told by Daring that he no longer would
be permitted to work as a driver, but could have employment on the dock . On August 18
Barton took the job on the dock and worked there until he quit sometime in October . Bartoo
enlisted the assistance of UTE in an attempt to be reinstated as a driver and the case Was
finally sent to arbitration . One of the arbiters was an attorney who had represented the
Respondent in labor matters on a number of occasions, one was a business agent for UTE,
and a third was chosen by the two . The arbiters decided unanimously that Barton had not
followed instruction and, by a 2 to 1 vote, that his termination as a driver did not violate
any of the rights secured to him by the UTE contract.
Daring testified that he telephoned Barton in Colorado City at about 11:30 on the morning
of August 12 and told Barton to take 8 hours rest and then to proceed eastward until he met
Nix. According to Daring , the meeting probably would have occurred at Baird about 165
miles west of Dallas ; that Barton was instructed to exchange with Nix at the meeting point
and return to Stanton.
Attorney Sayers , one of the arbiters , testified that at the arbitration hearing, Barton ad-
mitted the receipt of instruction from Daring on August 12 to take 8 hours rest. Another arbi-
ter, Almond Smith, who at the time of the arbitration hearing was a business agent for UTE
but at the time of testifying was an employee of the Union, denied that this was so , asserting
that Barton then had consistently said that the instruction had been to indicate 8 hours off
duty on his log. This particular point appears not to have been vital to the issue as viewed
by the arbiters . I credit the recollection of Smith.
BRASWELL MOTOR FREIGHT LINES 77 1
I am convinced that Bartoo gave a truthful account of the instruction coming from Daring
and that the latter did not. I believe , based in part upon the demeanor of the two men in giving
their testimony , that Daring's concern was toexpedite the arrival of the trailer in Dallas while
making it appear, by the hiring of a room and the marking of Bartoo 's log , that Bartoo had
taken the required time off duty . Bartoo testified that Daring had not told him to "falsify"
his log. No doubt that word was not used. But the instruction to have the log indicate as a fact
that Bartoo had taken 8 hours rest with the intention that he not do so of course amounted to a
direction to falsify.
But more is required to establish a violation cognizable in this forum. Did Bartoo's dis-
charge result from a scheme to discriminate against members or supporters of the Uniop?
There is substantial evidence that it did and that Daring was its designer.
Claymon Marshall, then 19, was employed in February 1950 as a city driver for the
Respondent in Dallas under W . D. Roberts , then terminal agent. Several months later Marshall
was promoted to checker and while working in that capacity in March 1952 entered into a
discussion with Roberts about unions. According to Marshall, Roberts asked if he was a
member of the Union. Marshall replied, truthfully, that he was. Roberts then said, Marshall
testified, that if he could "get something on" Marshall he would fire him.
Roberts testified that he had no recollection of talking to Marshall about unions but that he
may have done so if Marshall was one of a number of employees who had asked his advice
about joining the Union To all such, Roberts testified, he answered that he was indifferent.
Roberts denied that he had threatened discharge in any circumstance on the basis of union
membership or activity. Roberts left Respondent's employ before June 1, 1952.
On June 1, Robert Daring succeeded Roberts as terminal agent and about 10 days after his
designation to that job , promoted Marshall to dock foreman . As foreman Marshall had 17 or
18 men working under his direction and had effective authority to recommend hire and dis-
charge . I find that he was a supervisor within the meaning of the Act. Marshall testified that
Daring asked if he was a member of the Union and that he demed that he was. Daring then,
according to Marshall, told him to discover who among the employees was a union member and
to find some pretext to accomplish the discharge of any so infected . Still according to Marshall.
conversations between him and Daring on this theme were frequent and in many of them Daring
said that Bartoo was believed to be one of the union organizers ; that he was trying to find an
excuse to fire him. About August 15 , after Bartoo had been deprived of his job as a driver,
Daring told Marshall, according to the latter's testimony , that getting rid of Bartoo was a
"stroke of genius ," to put Bartoo toworkon the dock and later to find some reason for letting
him go.
Daring denied that he had such conversations with Marshall and testified that he on one
occasion warned Marshall to cease expressing disapproval of unions to the dockworkers. In
February 1953, for reasons which the record does not explicate, Daring discharged Marshall.
Counsel for the Respondent urges that the unreliability of Marshall as a witness is demon-
strated in that (1) he lied to Daring when the latter inquired about the union membership of
Marshall and Bartoo; ( 2) he reported to Miller, an organizer for the Union, and to employees
on the dock , the threats and inquiries that Daring made in connection with the Union ; and (3)
he took property of his employer and attempted to implicate Daring in the theft.
I find no merit in (1) and (2). There was no obligation on the part of Marshall to disclose
his membership and the inquiry as to Bartoo sought to involve Marshall in Respondent's
unfair labor practices Reporting developments, as Marshall did about July 1 to a representa-
tive of the Union, certainly indicates his lack of sympathy with Daring's plans and his interest
in the Union as does the factthathe told many of the employees working under him of Daring's
purpose to get rid of union members . It does not however do more than establish Marshall as
one favoring the cause of the Union.
Concerning the removal of merchandise from the Dallas dock, some of the facts are undis-
puted . On August 31, 1952, a truck contain ing freight for which the Respondent was responsible
was wrecked at apomt not far from Dallas . Daring and dock employees from Dallas went to the
scene and salvaged what they could. Among the items recovered were 80 universal joint repair
kits consigned to the Ford Motor Company at Los Angeles. According to Marshall, the kits
were placed on the dock in Dallas where they remain .'. for several weeks . At sometime during
the fall of 1952, Daring suggested, Marshall testified, that the latter remove the kits, find a
buyer for them, and split the proceeds with Daring. Marshall admitted that he placed the kits
in the trunk of his car and attempted to sell them, but asserted that the only offer he received
was for a price too low to suit Daring. After his discharge, Marshall wrote to H. J. Jones, on
April 19, 1953, and of Respondent's officials, confessing the taking of the kits and saying that he
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had done so at the instigation of Daring. A few days later, Daring came to the place of
Marshall's employment and recovered the kits from Marshall's car.
Daring denied any complicity in the theft, asserted that he had asked Marshall to search the
dock for the kits when he learned that they were missing, and testified that Marshall had ad-
mitted to involving Daring in the matter to achieve a personal revenge. It is argued in support
of the Respondent that Marshall took the kits on his own, that his confession was made to
cause trouble for Daring, and that his testimony concerning Daring's unfair labor practices
is but an extension of that design.
I do not find it necessary to decide where truth lies in connection with the repair kits.
That episode is collateral to the central issue and of importance only to the extent that it
serves as a guide to the reliability of testimony. Even if it be true that Daring and Marshall
acted together in the matter at the beginning it is certain that the association ended when
Marshall was discharged and I consider it to be a reasonable conclusion that Marshall's
disposition toward Daring at the time of the hearing was not a friendly one. The suggestion
that Marshall contrived his testimony concerning instruction from Daring about finding
opportunity to discharge supporters of the Union and in respect to the motivation for termi-
nating Barton as a driver finds little to support it. Miller testified that Marshall reported to
him the substance of Daring's instruction on July 1 and a writing of that date to that effect
signed by Marshall as in evidence. Marshall and Daring then were on friendly terms. I credit
Marshall's testimony as to what Daring told him in respect to trying to discover the members
of the Union and in finding reason or pretext to discharge them. I also credit his testimony
that Daring boasted of the termination of Barton as "a stroke of genius." I find that Barton
was terminated as a driver on August 14, 1952, because Daring believed him to be a member
and active supporter of the Union.
By the August 14 termination of Barton, theRespondent discouraged membership in and ac-
tivity in behalf of the Union and thereby violated Section 8 (a) (3) of the Act. By that termina-
tion and by instructing Marshall to discover the identity of union members and then to
discriminate against them, the Respondent interfered with, restrained, and coerced its
employees in the exercise of rights secured by Section 7 of the Act and thereby violated
Section 8 (a) (1) of the Act.
I credit Marshall's testimony that in March 1952, Terminal Agent Roberts inquired of
him if he was a member of the Union and threatened a reprisal in that connection. There is
nothing to suggest that Marshall held any antipathy toward Roberts that would make likely
the falsification of his testimony in this particular. I have considered the denial of Roberts
that the inquiry was made and Roberts testimony that he, too, holds membership in a labor
organization, but in March 1952 Roberts was working for an employer committed to the sup-
port of a dominated labor organization and opposed to the Union. The likelihood that Respond-
ent's supervisors would in those circumstances interrogate and threaten employees concern-
ing the Union is a strong one.
I credit the testimony of Coffey that Kirkpatrick threatened that Braswell would find means
to lessen the earnings of drivers if they did not renounce the Union. Kirkpatrick was at
the time an agent of UTE, an organization dominated by the Respondent. As UTE existed
by reason of Respondent's unlawful favor, as its purpose was to deprive employees of the
benefits of independent representation, and as Kirkpatrick's threat was in furtherance of
that aim, I consider it to be proper to ascribe responsibility for such conduct on the part
of UTE's agents to the Respondent and I do.
I find that by Robert's inquiry of and threats to Marshall at the time when the latter was
a nonsupervisory employee and by Kirkpatrick's threat to Coffey, the Respondent inter-
fered with, restrained, and coerced its employees in the exercise of rights guaranteed
in Section 7 of the Act and thereby violated Section 8 (a) (1) of the Act.
Elmer Locke was employed by the Respondent as an extra driver at El Paso on March
31, 1952, and sometime after that joined the Union. Finding that the opportunity for steady
work with the Respondent was not good, Locke cast about for another job and sometime
during the week of June 16 found one with another truckline in El Paso--one which had
some sort of bargaining relation with a sister local of the Union. Locke arranged to report
for work on July 1 with his new employer. On a date concerning which Locke testified
with considerable confusion but which I find to be about June 18, he came to Respondent's
El Paso dock where he encountered Joe Howell, El Paso agent. Howell said that he had run
for Locke. Locke said that he had another job lined up but that he need not report until July 1
so he could take the run. According to Locke. Howell then said that he would have to con-
sult Braswell in the matter and a little later reported, "Mr. Braswell says if you were going
BRASWELL MOTOR FREIGHT I. .NES 773
io work for Texas-Arizona you are teamsters now and he couldn't use you on the east
end, he couldn't mix them with the UTE." Locke left and almost immediately secured other
employment which occupied him until his new job was available.
Howell denied that he conveyed such a messageto Locke and testified that Braswell was not
in El Paso when Locke notified Howell of his intention to quit. Braswell denied that he
was consulted in any way concerning giving a run to Locke.
The testimony on this point stands as an assertion and a denial. But Respondent's anti-
pathy toward the Union is well established and it is not at all improbable that Braswell would
view unfavorably the continued employmentofonewhom he believed was necessarily a member
of the Union in order to qualify for employ-lent with the Texas-Arizona line. On the other
hand, no reason is apparent for Locke to contrive his testimony. He suffered no financial
loss by reason of the refusal of employment and no request for reinstatement is made.
There is evidence, in the form of a letter written by Locke to the Respondent in September
1952, that he has a friendly regard for the Respondent and the supervisors under whom he
worked. I believe that Locke testified truthfully, that Howell because of loyalty to the Re-
spondent did not. I find that Locke was refused further employment with the Respondent on
or about June 18, 1952, because he was believed to have joined the Union or a union af-
filiated with the same parent as the Union. By the refusal of further employment, Respondent
discriminated in regard to Locke's tenure of employment with the purpose of discouraging
membership in the Union and thereby violated Section 8 (a) (3) of the Act. By the same
conduct, Respondent interfered with, restrained, and coerced its employees in the exer-
cise of rights guaranteed in Section 7 of the Act and thereby violated Section 8 (a) (1) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III above, occuring in connection
with its operations described in section I, above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the several States and tend to lead
to labor disputes burdening and obstructing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, it will
be recommended that it cease and desist therefrom and take affirmative action designed
to effectuate the policies and purposes of the Act.
Having found that the Respondent has discriminated in regard to the hire and tenure of
employment of Charles Bartoo, it will be recommended that the Respondent offer to Bartoo
immediate and full reinstatement to his former position as a road driver, without pre-
judice to his seniority and other rights and privileges previously enjoyed, and make him
whole for any loss of earnings sustained by reason of his termination from that job by
payment to him of a sum of money equal to the amount he would have earned from August
14, 1952, to the date of offer of reinstatement, less his net earnings during that period.
Back pay shall be computed in accordance with the Board's Woolworth formula4 on the
basis of each separate calendar quarter or portion thereof during that period. The quarterly
periods, hereinafter called "quarters," shall begin with the first day of January, April,
July, and October. Loss of pay shall be determined by deducting from a sum equal to that
which he would have earned for each quarter, or portion thereof, his net earnings 5 in other
employment during that period. Earnings in one particular quarter shall have no effect
upon the back-pay liability for any other quarter.
It will also be recommended that the Respondent make available to the Board or its
agents, upon request, payroll and other records convenient for or necessary to the compu-
tation of the amount of back pay.
Upon the basis of the foregoing findings of fact and upon the entire record in the case,
I make the following:
4F W. Woolworth Company, 90 NLRB 289.
5Crossett Lumber Company, 8 NLRB 440.
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Local Union No. 745 , International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , AFL, is a labor organization within the meaning of
Section 2 (5) of the Act.
2. By discriminating in regard to the tenure of employment of Charles Bartoo and Elmer
Locke the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) of the Act.
3. By such discrimination , by interrogating employees concerning membership in the
Union , and by threatening employees in that connection , the Respondent has interfered with,
restrained , and coerced its employees in the exercise of rights guaranteed in Section 7
of the Act , and thereby has engaged in and is engaging 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.
5. The evidence does not establish that the discharge of R. B. Redding or John Coffey
was discriminatory.
[Recommendations omitted from publication]
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby
notify our employees that:
WE WILL NOT discourage membership in Local Union No. 745, International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , AFL, or
any other labor organization of our employees by means of discharge or by discrimi-
nation in any other fashion in regard to hire or tenure of employment or terms or
conditions of employment.
WE WILL NOT by means of discharge or interrogation or in any other manner in-
terfere with , restrain , or coerce our employees in the exercise of the right to self-
organization , to form labor organizations , to join or assist the above-named union
or any other labor organization, to bargain collectively through representatives of
their own choosing and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection , or to refrain from any or all such ac-
tivities , except to the extent that such right may be affected by a valid agreement
requiring membership in a labor organization as a condition of employment as au-
thorized by Section 8 (a) (3) of the Act.
WE WILL offer to Charles Bartoo immediate and full reinstatement to his former
or substantially equivalent position , without prejudice to his seniority or other rights
and privileges previously enjoyed, and make him whole for any loss of earnings suf-
fered as a result of the discrimination against him.
BRASWELL MOTOR FREIGHT LINES,
Employer.
Dated ................ By..............................................................................................
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material.