Braswell Motor Freight Lines, Inc.

National Labor Relations Board - Board Decisions

Jan 7, 1966

156 N.L.R.B. 671 (N.L.R.B. 1966)

BRASWELL MOTOR FREIGHT LINES, INC. 671
(b) Post at its terminals at Taunton and North Dighton, Massachusetts, copies of
the attached notice marked "Appendix." 6 Copies of said notice, to be furnished by
the Regional Director for Region 1, shall, after being signed by a duly authorized
representative of Respondent, be posted by it immediately upon receipt thereof, and
be maintained by it for a period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily displayed.
Reasonable steps shall be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 1, in writing, within 20 days from
the receipt of this Decision, what steps Respondent has taken to comply herewith.?
It is finally recommended that unless Respondent shall within the prescribed period
notify the said Regional Director that it will comply, the Board issue an order requir-
ing Respondent to take the aforesaid action.
6If 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."
7 If this Recommended Order is adopted by the Board , this provision shall be modified
to read: "Notify said Regional Director, in writing, within 10 days from the date of
receipt 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 Rela-
tions Board, and in order to effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify our employees that:
WE WILL, upon request, bargain collectively with Local 653, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America;
as the representative of all the employees in the bargaining unit described below
with respect to the effects upon employees' tenure or term of employment, or
other terms and conditions of employment, of any decision to sell any of our
truck operations. If an understanding is reached, WE WILL.embody such under-
standing in a signed agreement.
The bargaining unit is:
All drivers employed by us, exclusive of office clerical employees, pro-
fessional employees , guards, and all supervisors as defined in Section 2(11)
of the Act.
YOUNG MOTOR TRUCK SERVICE, INC.,
Employer.
Dated ------------------- BY-------------------------------------------
(Representative) (Title)
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.
Employees may communicate directly with the Board's Regional Office, 24 School
Street, Boston, Massachusetts, Telephone No. 523-8100, if they have any questions
concerning this notice or compliance with its provisions.
Braswell Motor Freight Lines , Inc. and Barry James Looney.
Case No. 26-CA-2064. January 7,1966
DECISION AND ORDER
On October 8, 1965, Trial Examiner George A. Downing issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
156 NLRB No. 66.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a brief in support thereof.
The National Labor Relations Board has reviewed the rulings of the
Trial Examiner made at the hearing and finds that no predudicial
error was committed. The rulings are hereby affirmed. The Board
has considered the Trial Examiner's Decision, the exceptions and
briefs, and the entire record in this proceeding, and hereby adopts the
findings,' conclusions,2 and recommendations of the Trial Examiner.
The Board adopted the Trial Examiner's Recommended Order.]
1 We agree with the finding of the Trial Examiner, for the reasons stated and under
the precedents cited in his attached Decision, that the Respondent violated Section 8(a) (1)
of the National Labor Relations Act by the requests of Terminal Manager W. C. Smith
and its counsel, Hugh Smith, to see the statements furnished the Board by employees
Holley and Otho Looney, respectively. Although, as Respondent points out, the United
States Court of Appeals for the Seventh Circuit refused to enforce the Board's decision
in W T Grant Company, 144 NLRB 1179, in this regard (337 F. 2d 447), we respect-
fully adhere to the position stated in the Board's decisions in that and the other cases
cited by the Trial Examiner. Moreover, the doctrine announced in this line of cases has
been approved by the United States Court of Appeals for the Second, Fifth, and Sixth
Circuits. See, respectively, Henry I. Siegel Co., Inc. v. N.L.IL B., 328 F 2d 25, 27;
Texas Industries, Inc., et al. V. N L.It.B., 336 F. 2d 128, 133-134 ; Surprenant Manufactur-
ing Co v N.L B B., 341 F. 2d 756, 762-763. Additionally, we note that in Gene Iliede,
d/b/a Hyde's Super Market, 145 NLRB 1252, one of the decisions cited by the Seventh
Circuit in its opinion, the Board adopted the decision of the Trial Examiner pro forma,
in the absence of any exception to his dismissal of that portion of the complaint pertinent
to this discussion. And, to the extent that Atlantic d Pacific Tea Company, 138 NLRB
325, also cited in the court's opinion in this respect, is inconsistent with the line of cases
cited in the attached Trial Examiner's Decision, that decision Is hereby overruled.
2 With respect to the discharge of Barry James Looney, found herein to have violated
Section 8(a) (3) of the Act, Member Jenkins would not rely on the smallness of the em-
ployee complement as a basis for Inferring the Employer's knowledge of union activity.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding under Section 10(b) of the National Labor Relations Act, as
amended, as heard before Trial Examiner George A. Downing at Memphis, Tennes-
see, on June 14, July 12, and August 9, 1965, pursuant to due notice. The complaint,
which was issued on April 30, 1965, on charges dated March 24 and April 30, alleged
in substance, as amended, that Respondent engaged in unfair labor practices pro-
scribed by Section 8(a)(1) and (3) of the Act (1) by discharging Barry James
Looney because he joined or assisted Teamsters Local Union No. 667; (2) by threat-
ening an employee with discharge if he signed a union card; and (3) by interrogating
employees concerning their union membership, activities, and desires and concerning
testimony they gave the Board in sworn statements during the investigation of the
charge. Respondent answered, denying the allegations of unfair labor practices.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent is a Texas corporation with its principal office and place of business at
El Paso, Texas, and with a terminal in Memphis, Tennessee, where it is engaged in
the business of interstate transportation of motor freight It derives annually from
the conduct of its business gross revenues in excess of $50,000 for the transportation
of freight across State lines. Respondent is therefore engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
BRASWELL MOTOR FREIGHT LINES, INC. 673
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local Union No. 667 (herein called Teamsters and Union), is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction and issues
Respondent's Memphis terminal has been picketed for some 2 or 3 years by Team-
sters' pickets who also sometimes followed Respondent's delivery trucks and solicited
Respondent's drivers On March 18, 1965, Barry Looney signed a Teamsters card
while making deliveries on his route. For over a year there had also been activity
among the employees led by one A. J. Hemphill, a line driver, to organize a company
union, and that activity, dormant for some months, was renewed in March shortly
before Looney was discharged by Terminal Manager W. C. Smith on March 24.
The chief issues are whether Respondent knew of Looney's membership in Team-
sters and discharged him because thereof. Material to those issues was a course of
interrogations which occurred just before and just after Looney's discharge, and con-
cerning that conduct there is no conflict in the evidence. There is also no conflict in
the evidence concerning certain requests made during the Board's investigation that
employees make available to Respondent copies of their statements given to the
Board.
B. The Section 8(a) (1) violations
1. Interrogations and threats
Much of the General Counsel's evidence was presented through reluctant and
unwilling witnesses,1 but ultimately there was no conflict in the evidence concerning
the fact that Terminal Manager W. C. Smith and Dock Foreman Howard Renfroe
interrogated employees concerning what they knew of union activities and the signing
of union cards.
Holley testified that on or about March 23 Renfroe questioned him about the
union, asking whether he had been approached, and Holley replied negatively Ren-
froe commented that some of the drivers had signed cards. Otho Looney testified
that Renfroe questioned him on March 23, inquiring whether Looney had heard any-
thing about the union and whether he had signed a union card. Looney replied that
he had not. Renfroe asked Looney to let him know if he did so. Both Holley and
Looney testified that the interrogations occurred at a time when Hemphill was sign-
ing up employees for a company union, and Holley had already signed a card for
Hemphill.
Stanley testified by affidavit (see footnote 1, supra) that about 3 days after Barry
Looney was discharged, Renfroe engaged him in a lengthy conversation during which
Renfroe inquired whether he had been approached by one of the pickets and asked to
sign a union card. Stanley replied negatively. Renfroe commented that "Well, you
can see the trouble that signing cards has caused," and added that he did not know
why Looney had signed a card. Renfroe continued, however, that he could not say
that Looney was fired for signing a card.
Renfroe was not called to deny any of the statements or conduct which the General
Counsel' s witnesses attributed to him.2
'Employees James H. Holley, Otho Looney, and Jimmy Stanley did not appear in
response to the Board's subpena at the hearing on June 14, and the General Counsel was
compelled to resort to enforcement preceedings in the Federal court to procure their at-
tendance at the adjourned hearing on July 12 After they testified and were excused on
the latter date, the court reporter discovered that because of the malfunctioning of her
machine, it was impossible to transcribe the testimony. When the heaiing was resumed
on August 9, Stanley again failed to appear in response to a new Board subpena, but the
parties agreed that Stanley's affidavit to the Board would be received in lieu of compelling
his testimony through a further enforcement proceeding.
2 Respondent rested its case with the announcement that it would not call Renfroe,
who left the Company after July 12 and went with another employer in Phoenix, Arizona
Though Respondent represented that Renfroe was therefore "unavailable," there was no
representation that it sought or desired a subpena or that it otherwise had attempted un-
successfully to procure Renfroe's attendance Respondent's failure to call Renfroe thus
contrasts sharply with the strenuous efforts which the General Counsel made to procure
the attendance and testimony of witnesses.
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Charles L. Paton testified that on March 22 he had a conversation with Hemphill
and one Cox, during the course of which it developed that Cox had left $5 for Hemp-
hill to join the company union. Paton commented jokingly that if Cox would give
him the $5, Cox could have Paton's membership because he was thinking of joining
Teamsters Upon Paton's return to the Memphis terminal on March 24 from a trip to
New Orleans, Smith called him into the office, stated, "I thought you were my friend,"
and asked what Paton knew about the Union. Paton asked what union, and Smith
replied, "This union you and Hemphill had your conversation about."
Paton responded that he knew what Smith was talking about and he repeated to
Smith the conversation with Hemphill and Cox on the 22d, including his joking com-
ments about selling Cox his membership in Hemphill's union and joining Teamsters.
Smith referred to some teletype or telephone message he had received from Troy
Smith (Respondent's division manager at Houston), directing him "to find out what
the hell is going on up here," or what kind of union was involved, and Paton informed
Smith that it was a "company union."
Holley testified that a day or so after Looney was fired, he had the following con-
versation with Smith:
He asked me had I, and I said had I what, and he said, "Did you" and I said,
"Did I what," He said "Sign a union card," and I replied no. At that particular
time I had not signed a union card.
Holley testified further that Smith mentioned no 'particular union and that the
interrogation occurred about the same time that Hemphill was passing out cards for
the company union. However, since Holley had already signed a card for Hemphill,
his testimony as quoted above showed plainly that he undestood Smith's interrogation
to relate to Teamsters, not to the company union.
Smith made no denial of the testimony of Paton and Holley. He testified that
shortly before discharging Looney on March 24, he received a call from Troy Smith,
division manager at Houston, who asked if he knew that 90 percent of the employees
had signed up with the company or A. J. Hemphill union and that he informed Ren-
froe of that call.
Concluding Findings
The only issue surrounding the foregoing evidence is raised by opposing contentions
by the General Counsel, on the one side, that the Smith and Renfroe interrogations
related to Teamsters activities and by Respondent, on the other, that they related to
Hemphill's activities on behalf of a company union. But though important to ques-
tions concerning Looney's discharge, the issue is a spurious one insofar as Section
8(a)(1) is concerned, for both under the statute and under the allegations of the
complaint our inquiry can end with determining that the interrogations concerned
union membership and activities generally, and we need not inquire further whether
they extended to the identity of the organizer or of the specific labor organization
involved.
Because of the bearing on the discharge issues, however, I conclude and find that
Renfroe's interrogation of Stanley and Smith's interrogation of Holley were related
to Teamsters activities. In Stanley's case, Renfroe's reference to the pickets showed
that he was obviously referring to Teamsters organizational efforts, and Holley's
testimony showed that he similarly understood Smith's inquiry. Furthermore, Ren-
froe inferred to Stanley that it was Looney's signing of a Teamsters card which caused
his "trouble" (i.e., discharge). The threat implicit in that warning was plainly not
dissipated by Renfroe's disclaimer of specific knowledge of a discriminatory basis for
Looney's discharge.
Because of the extent of the interrogations involved and because they occurred in
a course of conduct which included Renfroe's implied threat of discharge,3 I conclude
and find that both by the interrogations (N.L.R.B. v. Midwestern Instruments, Inc.,
s Renfroe's conduct thus took "beyond innocuous inquiry" the course of interrogations
in which he and Smith were engaged, plainly establishing in the context of their entire
conduct the coerciveness which the Act proscribes. N.L.R.B. v. Harbison-Fischer Manu-
facturing Co., 304 F. 2d 738, 739 (C.A. 5).
Though the General Counsel also offered through Otho Looney testimony concerning
a threat or warning given him by Wayne Jones, assistant dock foreman, on March 24,
that he should avoid the pickets during working time at the risk of his job, the General
Counsel offered it only to support his contention that the earlier interrogations related
to Teamsters, and he does not claim it as an 8(a) (1) violation. Looney's further testi-
mony that Jones "insinuated" at the time that Looney had been fired because of the
Union is relevant, however, on the discharge issues.
BRASWELL MOTOR FREIGHT LINES, INC. 675
264 F. 2d 829 (C.A 10)), and by the threat of discharge, Respondent interfered
with, restrained, and coerced employees in the exercise of rights guaranteed in Section
7 of the Act.
2 Requests for employee affidavits
Holley testified that sometime after having given the Board an affidavit, he and
some of the other employees were talking about the matter on the dock and one of
them said that he had given a statement. Smith, who walked by at the time, asked
Holley if he gave a statement. When Holley replied that he had, Smith said, "If you've
got a copy, I'd like to see it sometime." Holley indicated willingness but testified
that he did not have a copy, that he did not give Smith one, and that Smith did not
in so many words ask to let him see a copy.
Otho Looney testified that Respondent's counsel, Hugh Smith, asked him for a
copy of the statement he gave the Board, stating that Looney could let him see it if
Looney wanted to but that it was voluntary on Looney's part and that he did not have
to let Smith see the copy. Looney thereafter had a letter typed by an office employee,
addressed to the Board's office, in which he requested that the Board mail him a photo-
static copy of the statement, explaining that "I need this very badly for reviewing."
Looney gave as the return address the post office box of the Company, but testified
in explanation that he was moving at the time and changing addresses and therefore
gave the Company's address.
Concluding Findings
It is established law that employer demands of employees that their statements be
disclosed to it before trial interfere with the Board's efforts to secure vindication of
employees' statutory rights and thus interfere with the enjoyment of such rights in
violation of Section 8(a)(1). The basis of the Board's holding is spelled out in Hil-
ton Credit Corporation, 137 NLRB 56, at footnote 1. See also Winn-Dixie Stores,
Inc., and Winn-Dixie Louisville, Inc., 143 NLRB 848, enfd. 341 F. 2d 750 (C.A. 6);
Texas Industries, Inc., et al., 139 NLRB 365; Henry I. Siegel Co., Inc., 143 NLRB
386, enfd. 328 F. 2d 25, 27, (C.A. 2); Montgomery Ward and Co., Incorporated, 154
NLRB 1197. And in W. T. Grant Company, 144 NLRB 1179, 1180-1182, the
Board found as a further basis of an 8(a)(1) violation that employer requests for
such statements constitute in substance an attempt to engage in prohibited interroga-
tion of employees within the holding of Joy Silk Mills, Inc. v. N.L.R.B., 185 F. 2d
732, 743 (C.A.D C.), enfg. 85 NLRB 1263, cert. denied 341 U.S. 914.
Furthermore, as the Board held in the W. T Grant case, it is not material that
Respondent "requested" rather than "demanded" the statements or that the employ-
ees were told that they were under no obligation to accede to the "request." See also
Montgomery Ward, supra, where the employee was told that it would be entirely up
to him as to whether he would give a copy of his Board affidavit to the employer's rep-
resentative or let the representative see the statement
In Winn-Dixie Stores, supra, the Board held further that knowledge by the employee
that his employer is manifesting an interest in what the employee may say about him
can only exert an inhibitory effect on the employee's willingness to give a statement
at all or to disclose all the matters of which he has knowledge for fear of saying some-
thing that might incur the employer's displeasure and possible reprisal. Here, the
inhibitory effects were graphically manifested in the subsequent refusal of employees
to comply with the Board's subpena, resulting in a most serious (and costly) inter-
ference with the Board's processes and necessitating the resort to enforcement pro-
ceedings in the Federal court and the scheduling of an additional hearing in the
present case.
I therefore conclude and find that by W. C. Smith's request to see the affidavit of
Holley and by the similar request made by Respondent's attorney to Otho Looney,
Respondent interfered with, restrained, and coerced its employees in the exercise of
rights guaranteed in Section 7.
C. The discharge of Barry Looney
1. The evidence
Barry Looney worked as assistant dock foreman for some months prior to late
February or early March 1965, but then returned to his former job of checker-driver.
On March 18 Looney signed a card on solicitation of Teamsters pickets while making
deliveries and while in the presence of Billy Joe Wilson, another driver, who did not
sign . Looney was discharged by Terminal Manager Smith on March 24.
217-919-66-vol. 156-44
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is no conflict in the evidence concerning the events which led immediately
to the discharge. Thus Looney testified that on March 23, he was directed by Wayne
Jones (Renfroe's assistant) to take a trailer of freight over to Springmeier Shipping
Co and drop it off and to bring back,an empty trailer from there After completing
that assignment Looney was sent back to Sprmgmeier to finish unloading the freight.
Looney arrived around 3 p in. and finished the unloading sometime before 7 p.m.
At that time Springmeier handed him the freight bills not only on the trailer which he
had unloaded but on two or three other trailers which had been unloaded by other
employees.
Looney called back to the office, talked with Renfroe, reported that he had finished
unloading, and was directed to return to the terminal. When he arrived he told Ren-
froe he had worked 13 hours that day and asked, "Do you want me to sign these bills
or go?" Renfroe replied, "Man, give me the bills and go ... P11 take care of the bills."
Looney testified he assumed that Renfroe would either sign them or have Wayne Jones
or Walter Lyons or someone else to sign them, "just like they usually do."
Respondent made no attempt to procure Renfroe's testimony. See footnote 2,
supra.
The testimony of Looney and Smith is in conflict concerning the actual discharge
the following morning. Looney testified that sometime after he reported for work
on the 24th, Smith called him into the office, handed him some freight bills, and
asked him why he did not sign them Looney explained that he had worked 13 hours
the day before and recounted to Smith his conversation with Renfroe the previous
evening when Renfroe instructed him to punch out and leave. Smith replied that that
was no excuse and that Renfroe had no business to tell Looney to do that. Looney
stated that he was acting pursuant to what Renfroe, the dock foreman, told him to
do, but Smith repeated that that was no excuse Looney asked what Smith wanted
him to do and whether he wanted Looney to sign the freight bills. Smith answered
that he wanted Looney to resign, and when Looney refused, Smith stated that that left
him no alternative but to fire Looney and he ordered Looney to "Go punch the clock
and go."
Smith testified that Looney was dischaiged for failing to carry out repeated orders
and instructions concerning the necessity for signing freight bills, and he denied that
he had any knowledge that Looney had signed with Teamsters. Smith testified that
on the morning of the 24th, he picked up the stack of bills covering the March 23
deliveries to Springmeier, checked to see who made the deliveries, determined that
Looney made them, and called Looney into the office. He informed Looney, "It
looks like you are lust deliberately not going to sign these bills and you know we
can't get by without it and you have the opportunity of resigning or else I am going
to have to replace you." Smith denied that Looney gave any excuse at the time and
denied that Looney said anything about having given the bills to Renfroe. Smith tes-
tified, however, that at diffeient times in the past Looney had excused his failure by
claiming that the dock foreman and assistant dock foi eman had been signing the bills
for some of the other drivers. Smith informed Looney on those occasions that what
the other drivers did would be handled with them and that Looney knew what his own
instructions were.
The crucial point of conflict involves Smith's denial that Looney informed him
that Renfroe had excused the failuie to sign the Springmeier bills on the previous
evening. The entire circumstances support Looney's contrary claim. Thus Respond-
ent made no attempt to refute Looney's testimony that Renfroe released him on the
23d with a promise that he himself would "take care of the bills." As there is there-
fore no basis for discrediting Looney's testimony that Renfroe in fact excused his
failure to sign, it is inconceivable that Looney, in the face of imminent discharge, would
not have informed Smith of Renfroe's condonation. I therefore credit Looney's
testimony concerning the discharge incident
We now turn to the evidence upon which Respondent relies concerning its require-
ment for signing freight bills, concerning ceitain special circumstances existing at
Springmeier, and concerning prior derelictions on Looney's part.
Respondent held periodic safety meetings at which the driveis were reminded of
the importance of signing the freight bills to evidence the making of deliveries.
Looney attended some of those meetings and was fully aware of the requirement.
The evidence showed, however, that the actual practices at Memphis were extremely
lax On January 14, 1965. the home office returned some 150 freight bills to Smith
to obtain the drivers' signatures, together with a memorandum in which the Memphis
terminal was severely criticized for its sloppy handling of the matter and in which
it was urged to take necessary corrective action. Despite that, there was continued
BRASWELL MOTOR FREIGHT LINES, INC. 677
laxity at Memphis, particularly as concerned deliveries to Springmeier Shipping Com-
pany, which presented special problems both because of the number of shipments
involved and the manner of making deliveries and unloading freight.
Thus the evidence showed that whereas deliveries to the average company would
involve no more than half a dozen freight bills, there were in Springmeier's case as
many as 50 or more bills. Also, fully loaded trailers were sometimes "set out" at
Springmeier's for later unloading either by the driver himself (as by Looney on the
23d), or by someone else, and sometimes by Springmeier employees In the latter
case the driver would, of course, have no personal knowledge whether the goods in
the trailer checked against the items listed on the freight bills, and the practice was to
accept Springmeier's own certification upon the bills that the freight had been deliv-
ered In those cases the bills would be signed either by the driver who had "set out"
the trailer or by such employee as was sent out to pick up the bills after Springmeier
had completed the unloading. Thus Wayne Jones testified as Respondent's witness
that there were occasions when he was sent to pick up the freight bills at Springmerer
and that his instructions (and those of all employees) were to sign the bills where
Springmeier had stamped them in acknowledgment of receipt of the freight
Walter Lyons, Respondent's dispatcher, testified that for a long time he himself
would sign with his initials such bills as the drivers turned in unsigned but that he
changed that practice in January after the El Paso office sent back the batch of
unsigned bills. Thereafter it was sometimes necessary for Lyons to ask drivers to
sign their bills, and the worst offender in that regard was Barry Looney and the big
problem was the Springmeier bills Lyons spoke to Looney several times about the
matter and warned him that he was "going to get run off" rf he did not start signing
the bills.
Lyons also testified that he reported to Smith concerning Looney's failure to sign
the bills and he corroborated Smith's testimony that Smith called in Looney a number
of times and talked with him about his failure to sign. Smith testified further that
there were some five of six such occasions prior to Looney's discharge and that on the
last three, he warned Looney he would have to take some disciplinary action unless
Looney began to sign the bills.
Smith testified further that though he did not lay Looney off, he had laid off other
for a week. Indeed, Smith conceded that it was not an unusual procedure to lay off
employees for their failure to sign the freight bills, including one who was laid off
a driver for a couple of days or even a week if he did not sign the freight bills, but he
testified that Looney was worse than any of the others because he had been employed
longer than they, and that he discharged Looney rather than laying him off because it
appeared that Looney purposely failed to sign the Springmeier bills on the 23d after
he had been given a stern warning about the necessity for signing.
Smith testified also that he discovered in March that Lyons was continuing to sign
the bills for a lot of the drivers, particularly for Looney, and he warned Lyons not
to sign any more. Lyons corroborated that testimony and testified that on one occa-
sion when bills were unsigned, he put the letters "S.O." on the bills to specify that the
trailer had been "set out" at Springmeier's. As for the March 23d bills, Lyons testi-
fied he did not know until after Looney's discharge that Looney had not signed the
bills and that, pursuant to Smith's instructions after the discharge, he signed those bills
"Barry Looney by W Lyons."
Respondent also offered considerable evidence concerning deliveries which Looney
made to Springmeier earlier in March and concerning the extent to which Looney
signed or failed to sign the freight bills. It also introduced a written "warning letter"
dated March 12 from Smith to Looney calling attention to the fact that delivery
receipts which Looney turned in on March 10 did not contain Looney's signature.
Looney was reminded of prior instructions in that regard as stressed in safety meet-
ings, reminded that Smith had warned him personally about the matter on several
occasions, and warned that more drastic action would be taken if there were further
violations of the company rule.
Respondent also offered two earlier written reprimands concerning other matters.
The first, dated August 28, 1964, related to an accident and referred to it as the third
in which Looney had been involved in a year. The second, dated January 9, 1965,
warned Looney he was taking too much time off without notice to the Company Both
reprimands warned Looney that more drastic action would be taken for further
violations.
On November 6, 1964, Smith also called on Looney in writing to pay a claim for
some $9 36 because of his "mishandling and mischecking" of a shipment. Smith tes-
tified further that there were some 10 or 12 occasions when Looney failed to sign the
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
register to evidence his use of certain trailers and equipment assigned to him and that
on two of those occasions in February and March he spoke to Looney about the
mattes.
Though Looney disputed much of the foregoing evidence, both as concerned the
written and oral reprimands and as concerned the extent of the deliveries which he
made to Springmeier in March, there was no direct corroboration of his testimony,
whereas the testimony of Smith and Lyons was mutually corroborative and the writ-
ten reprimands lent further corroboration to certain aspects of Smith's testimony. It
is to be observed, however, that much of the conflict concerning the Springmeier
deliveries seemed plainly due to confusion arising from the special circumstances
there, particularly from the fact that employees other than the driver who "set out"
the trailers could be required to sign bills in certification of deliveries of freight. Fur-
thermore in cases where Springmeier's employees unloaded the trailers, there was no,
employee on Respondent's side who could in fact certify what freight had been deliv-
ered, and since the practice was to accept Springmeier's own stamp as certification, it
was actually of no consequence which of Respondent's employees signed.
I therefore credit the testimony of Smith and Lyons in the light of the foregoing
circumstances, which I believe explain Renfroe's readiness to relieve Looney after 13.
hours of work and to agree to take care of the bills himself.
2. Concluding findings
For initial determination is the issue of knowledge of Looney's membership in
Teamsteis, denied by Respondent The General Counsel relies upon the evidence set
forth in section B, 1, supra, and claims further support from the pretextual nature of
the discharge We consider first the prior evidence, from which I conclude as follows:
(a) The interrogations in which Renfroe and Smith engaged occurred within the
space of a few days, beginning shortly before Looney's discharge, and some of them
were directed at ascertaining the identity of Teamsters supporters.
(b) Though Looney signed for Teamsters away from the terminal, he did so in
the presence of another employee. The extent of the interrogations and the small
number of employees at the terminal (45) are facts which tend to establish that
Respondent would have learned the identity of the Teamsters supporters.
(c) Renfroe in fact knew that Looney had signed with Teamsters, and he implied to
Stanley that it was that fact which caused Looney's discharge.4 The Board has held
that when supervisors have knowledge of union activities, the employer itself is
deemed to have such knowledge, The Bama Company, 145 NLRB 1141, 1152; and
the supervisors' statements are admissible as evidence of the employer's motivation
in discharging individuals. Montgomery Ward & Company, Incorporated, 115
NLRB 645, 647, enfd. 242 F. 2d 497 (C.A. 2); cf. Cousins Associates, Inc., 125,
NLRB 73, 75.
(d) Smith and Renfroe discussed with each other the union activities among the
employees, for Smith testified he informed Renfroe of the call from Respondent's
division manager at Houston on the morning of the 24th concerning Hemphill's
activities. When coupled with the fact that Smith and Renfroe were contemporane-
ously engaged in direct interrogations of employees concerning Teamsters activities,
it may reasonably be assumed that Smith was in turn privy to all that Renfroe knew
concerning Teamsters
(e) In addition to the foregoing the circumstances and events which immediately
surrounded and led to the discharge, including particularly the nature of Renfroe's
participation, add further support to the conclusion which I make on the entire evi-
dence that Respondent had knowledge of Looney's membership in Teamsters at the
time it discharged him.
Turning to the issue whether Looney was discharged because of that membership,
a prima facie case for the affirmative was plainly made out by the evidence concern-
ing the circumstances of the discharge when viewed against the immediate background
of Respondent's unlawful conduct as found in section B, 1 supra, particularly the
Smith and Renfroe interrogations in which they sought to learn the identity of employ-
ees who signed Teamsters cards and Renfroe's warning to Stanley of the conse-
quences which might flow from signing. Another weighty fact is that in all other
cases Respondent gave temporary layoffs for disiegarding the instruction to sign
freight bills, but Looney was summarily discharged though he had not previously been
subjected to such a layoff.
h Renfroe's assistant, Dock Foreman Wayne Jones, made an insinuation to the same
effect to Otho Looney at the time he warned Looney to stay away from the pickets.
BRASWELL MOTOR FREIGHT LINES, INC. 679
Respondent's evidence does not overcome the General Counsel' s case. Smith's
testimony was unequivocal that he discharged Looney because Looney failed to sign
the Springmeier freight bills on the 23d and had manifested a deliberate intention
not to sign the freight bills. But the facts were that Renfroe knowingly excused
that failure and promised to take care of the bills himself and that Looney informed
Smith of that condonation. Smith's insistence that Renfroe had no right to excuse
Looney was both unjustified and wide of the mark, for Renfroe was Looney's super-
visor and was plainly authorized to release Looney from further work and to waive
the signing of the bills. To hold that Smith could disavow Renfroe's action would
require employees to act at their own peril in obeying the orders of their supervisors.
Indeed, the most that Smith could demand if he chose not to approve Renfroe's action
was that Looney himself sign the bills which Renfroe had promised to take care of.
The foregoing circumstances leave without significance the evidence concerning
the extent of Looney's prior failures, for Renfroe had excused the very act which
Smith seized upon to precipitate the discharge. Far wider of the mark was the
evidence of earlier reprimands for a miscellany of misconduct, all of which were
wholly unrelated to the cause of the discharge. Indeed, the adducing of such evidence
itself tended to weaken Respondent's defense and thus correspondingly to strengthen
the General Counsel's case. Cf. N.L.R.B. v. Georgia Rug Mill, 308 F. 2d 89, 91
(C.A. 5); N.L.R.B. v. Schill Steel Products, Inc., 340 F. 2d 568, 573 (C.A. 5).
I therefore conclude and find on the entire evidence that Smith was seizing upon
an obvious pretext when he knowingly used condoned conduct to precipitate Looney's
discharge, the "real motive" for which (see N.L.R.B. v. Brown, et al., d/b/a
Brown Food Stores, et al., 380 U. S. 278, and cases cited) was antiunion discrimina-
tion. Cf. N.L R.B. v. C. & J. Camp. Inc., et al. d/b/a Kibler-Camp Phosphate
Enterprise, 216 F. 2d 113, 115 By such discharge Respondent engaged in discrimina-
tion within the meaning of Section 8(a)(3) to discourage membership in Teamsters.
IV. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices, I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action of the type which is conventionally ordered in such cases, as provided in the
Recommended Order below, and which I find necessary to remedy and to remove
the effects of the unfair labor practices and to effectuate the policies of the Act. For
reasons which are stated in Consolidated Industries, Inc., 108 NLRB 60, 61, and
cases there cited, I shall recommend a broad cease-and-desist order. I shall recom-
mend that Respondent be required to make the usual offer of reinstatement to
Looney and that his backpay be computed in the usual manner.5
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor prac-
tices within the meaning of Section 8 (a) (I).
2. By discharging Barry James Looney on March 24, 1965, Respondent engaged
in discrimination to discourage membership in Teamsters, thereby engaging in unfair
labor practices proscribed by Section 8(a)(3) and (1) of the Act.
3. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record,
and pursuant to Section 10(c) of the Act, it is recommended that Respondent,
Braswell Motor Freight Lines, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Local Union No. 667, or in any
5 During a colloquy concerning the possibility of settling the case which followed the
breakdown of the hearing on July 12 (see footnote 1, supra), informal representations
were made that Looney obtained other employment shortly after his discharge and that
his backpay would amount to approximately $80 Such representations are, of course, no
substitute for a formal offer of reinstatement nor for proper computations of backpay to
be made at the compliance stage of 'this proceeding.
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other labor organization of its employees, by discharging, failing to reinstate, or in
any other manner discriminating against employees in regard to hire or tenure of
employment or any term or condition of employment.
(b) Interrogating coercively its employees concerning their union membership,
activities, and desires.
(c) Interrogating employees concerning, and requesting that they furnish copies
of, their statements given to the Board during its investigations.
(d) Threatening employees with discharge for signing membership cards in
Teamsters or in any other labor organization.
(e) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their rights to self-organization, to form, join, or assist said Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local Union No. 667, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, or to engage in other con-
certed 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 designed to effectuate the policies of
the Act
(a) Offer to Barry James Looney 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 for any loss of pay he may have suffered by
payment to him of a sum of money equal to that which he would normally have
earned from March 24, 1965, to the date of the offer of reinstatement, less his net
earnings during said period (Crossett Lumber Company, 8 NLRB 440), said back-
pay to be computed on a quarterly basis in the manner established by the Board in
F. W. Woolworth Company, 90 NLRB 289, together with interest thereon at the rate
of 6 percent per annum. Isis Plumbing & Heating Co, 138 NLRB 716.
(b) Notify the said Barry James Looney 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, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Recommended Order.
(d) Post in its offices and terminal at Memphis, Tennessee, copies of the attached
notice marked "Appendix." 6 Copies of said notice, to be furnished by the Regional
Director for Region 26, shall, after being duly signed by the Respondent's repre-
sentative, be posted by Respondent immediately upon receipt thereof and maintained
by it for 60 consecutive days thereafter in conspicuous places where notices to
employees are customarily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 26, in writing, within 20 days from
the receipt of this Decision, what steps Respondent has taken to comply herewith.?
6 In the event that this Recommended Order be 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 be 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."
7In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read- "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the 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 Rela-
tions Act, as amended, we hereby notify our employees that.
WE WILL NOT discourage membership in International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, Local Union No.
667, or in any other labor organization, by discharging or failing to reinstate
employees or in any other manner discriminating in regard to hire or tenure of
employment or any term or condition of employment.
OKLAHOMA SHERATON CORPORATION 681
WE WILL NOT coercively interrogate our employees concerning their union
membership, activities, and desires.
WE WILL NOT interrogate employees concerning , or request that they furnish
us copies of, the statements which they give the National Labor Relations Board
during its investigations.
WE WILL NOT threaten employees with discharge for signing membership
cards in the above-named or any other labor organization.
WE WILL NOT in any other manner interfere with, restrain , or coerce employ-
ees in the exercise of their right to self-organization , to form, join, or assist said
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Local Union No. 667, or any other labor organization, to
bargain collectively through representatives of their own choosing , or 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 activities.
WE WILL offer to Barry James Looney 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 for any loss of pay which
he may have suffered as a result of our discrimination against him.
All our employees are free to become or remain, or to refrain from becoming or
remaining , members of the above-named or any other labor organization.
BRASWELL MOTOR FREIGHT LINES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will 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.
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, 746
Federal Office Building, 167 North Main Street, Memphis, Tennessee , Telephone
No. 534-3161.
Oklahoma Sheraton Corporation and Hotel & Restaurant Em-
ployees and Bartenders International Union , Local 246, AFL-
CIO. Case No. 16-CA-2356. January 7,1966
DECISION AND ORDER
On October 25, 1965, Trial Examiner Frederick U. Reel issued his
Order Granting Motion To Dismiss in the above-entitled proceeding,
finding that the Respondent had not engaged in the unfair labor prac-
tices alleged in the complaint, and recommending that the complaint
be dismissed in its entirety, as set forth in the attached Trial Exam-
iner 's Order. Thereafter, the Charging Party filed a request for
review.
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 [Chairman McCulloch and Members Jenkins and Zagoria].
156 NLRB No. 69.