Central Freight Lines, Inc.

National Labor Relations Board - Board Decisions

Dec 8, 1969

179 N.L.R.B. 914 (N.L.R.B. 1969)

914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Central Freight Lines, Inc. and Southern Conference
of Teamsters, Affiliated with International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Cases
16-CA-3491 and 16-CA-3538 ..
December 8, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On August 8, 1969, Trial Examiner James T.
Barker issued his Decision in the above-entitled
proceeding and an erratum on August 12, 1969,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. The Trial
Examiner further found that the Respondent had
not engaged in certain other unfair labor practices
alleged in the complaint and recommended the
dismissal of these allegations. Thereafter, the
General Counsel filed exceptions to the Trial
Examiner's Decision, and a supporting brief, the
Charging Party filed exceptions, and the Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this case,' and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Central Freight Lines,
Inc., Irving, Texas, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
'On September 15, 1969, the Charging Party filed with the Board a
request to delay its determination herein ; consolidate this case with charges
filed on September 11, 1969, which allege the unlawful discharge of
another employee by the Respondent on September 8, 1969, and reopen
the record to adduce further evidence. Under all the circumstances, we find
that adequate reason has not been shown for granting the request , and it is
therefore hereby denied.
It is further ordered that those portions of the
complaint as to which no violations have been found
are hereby dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES T. BARKER, Trial Examiner: This matter was
heard at Dallas, Texas on May 22 and 23, 1969, pursuant
to a charge filed in Case 16-CA-3491 on December 30,
1968, by Southern Conference of Teamsters Affiliated
With International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, hereinafter called
the Union, and a first amended charge filed in the
aforesaid case on January 30, 1969; and pursuant further
to a charge in Case 16-CA-3538 filed by the Union on
February 11, 1969. An order consolidating cases,
consolidated complaint and notice of hearing was issued
on April 17, 1969, by the Regional Director of the
National Labor Relations for Region 16. Thereafter on
the initial day of the hearing the complaint was amended.
The complaint as amended at the hearing alleges violation
of Section 8(a) (1) and (3) of the National Labor
Relations Act, hereinafter called the Act. The General
Counsel and Respondent timely filed briefs with me.
Upon considerations of the briefs and upon the record
in this case and my observation of the witnesses, I make
the following:
Findings of Fact
1. THE BUSINESS OF THE RESPONDENT
Central Freight Lines, Inc., hereinafter called
Respondent, is and has been at all times material herein a
Texas corporation maintaining its principal offices in the
city of Waco, Texas At all material times Respondent
has been continuously engaged in the intrastate shipping,
transporting and interlining by truck of general freight
and cargo moving in intrastate and interstate commerce.
Respondent maintains and operates various terminals
located throughout the State of Texas, including its
terminal in Irving, Texas.
During the 12 months immediately preceding the
issuance of the complaint herein, Respondent derived
gross income in excess of $50,000 from operations
performed pursuant to contracts or arrangements with
various interstate common carriers, including, inter alia,
Red Ball Motor Freight, Inc., and Illinois-California
Express, Inc., operating between and among various
States of the United States.
Upon these admitted facts I find that Respondent is
and has been at all times material herein an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act
II. THE LABOR ORGANIZATION INVOLVED
Southern Conference of Teamsters, Affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America is admitted to be
a labor organization within the meaning of Section 2(5) of
the Act, and I so find.
179 NLRB No. 163
CENTRAL FREIGHT LINES 915
III. THE -UNFAIR LABOR PRACTICES
A. The Issues
Issues raised by the pleadings in this proceeding are, (1)
whether certain wage increases and holiday , vacation and
insurance benefits concededly announced and instituted
after the commencement of the Union's organizational
campaign were for the purpose of defeating the Union or
were effectuated lawfully in the normal course of business
as part of a system-wide program; (2) whether the
Respondent through its officers and agents engaged in
certain threats and inducements designed to erode the
Union's following and, (3) whether the termination of
employee Robert Fallin was discriminatory within the
meaning of Section 8(a)(3) of the Act.
B. Pertinent Facts
1. Prefatory facts
a. Respondent 's operations
At material times W. W. Callan, Sr., has been
chairman of the Board of Directors of Respondent and W.
C Lackey has been terminal manager of Respondent's
Irving terminal .' Also at times material M . C. Cothran
has served as assistant terminal manager , Weldon R.
Mangham has been general dock superintendent and Gene
Hughett has been his assistant . Kenneth Phipps, R G.
Burkley, Gary Ellis, Doyle Richards, Gary Purcell, and
Charles Crumpley have served at pertinent times as dock
supervisors. At the Irving terminal during relevant times
were employed approximately 550 to 600 employees,
excluding office clerical employees and supervisors. These
employees worked in six departments including the pickup
and delivery department, the line department, the docks,
shops, office and sales. During relevant times prior to
March 31, 1969, employees worked a basic 50-hour, 5-day
workweek and were not paid premium pay for overtime
work.
The terminals of Respondent are designated as either
No. 1 stations or No. 2 stations , depending upon their size
and volume of business. Those falling into the former
category are 10 in number and include the Irving terminal
as well as those terminals located at Fort Worth,
Houston, Beaumont, Galveston, San Antonio, Austin,
Waco, Wichita Falls, and Sherman.
b. The employee organizational efforts
In late September a group of Respondent 's employees
at the Irving terminal contacted a representative of the
Union in furtherance of their determination to organize
the terminal . As a consequence of this contact a meeting
was scheduled for October 6 and the activist group began
to promote the concept of unionization among the
employees at the terminal . The October 6 meeting was
held in due course and approximately 100 to 125
employees of the terminal attended . During the course of
the meeting a further meeting was scheduled to be held on
October 13 and the employees were exhorted to obtain a
larger employee attendance.
'Lackey became terminal manager on October 14, 1968, after having
served as operations manager for the entire system for the previous 10 or
12 years. Lackey also served , at pertinent times, as a member of
Respondent's Board of Directors.
c. W. W. Callan meets with employees
On October 10 W. W Callan, Sr., conducted a series
of meetings with the employees of the Irving terminal
wherein he personally addressed the employees. During
the course of his remarks Callan traced the origins of the
Company and noted his awareness of the current efforts
of the Union to organize.' He noted that there had been
past attempts to organize the Company which had failed
and proffered his opinion that the current effort would be
similarly unsuccessful. He noted that employees could
work for the Company without "a union card" and
discussed the financial condition of the Company asserting
that the Company could not afford to grant a raise in
wages to employees or pay overtime.'
d. Further organizational efforts
As scheduled , a second organizational meeting was held
on October 13 with representatives of the Union which
was attended by approximately 200 to 250 employees of
Respondent . Authorization cards were executed and
buttons bearing the words "Go Teamsters " and the
Teamster seal were distributed to employees. On the
following workday a substantial number of employees
wore the buttons at the terminal during the course of their
workday.
Approximately 30 days later a larger button identical in
all other respects was worn by some employees . Further,
during the course of the organizational campaign leaflets,
pamphlets and other prounion literature was formulated
and disseminated by the 10 or l2 employees who
constituted the union organizing committee . This material
was made available to employees at the terminal for
distribution there and for placement in trucks destined for
outbound terminals . Additionally , as the campaign
'Testimony of record reveals that employees from the Irving terminal
visited other terminals in an effort to stimulate organizational efforts there
but there is no credible evidence establishing the success of these efforts or
the degree , if any, of overt organizational efforts at other terminals
During the campaign at Irving , literature both favorable and adverse to the
Union circulated between terminals apparently without approval of the
Company
The foregoing is based upon the credited testimony of Thomas Kelly
While Kelly was incorrect in his recollection of the precise time of the
meeting which he attended he testified convincingly concerning the
substance of Callan's remarks , and specifically with respect to Callan's
reference to the Company 's inability to afford a raise in wages
The Trial Examiner limited the General Counsel ' s adducement of
additional testimony concerning Callan's October 10 statement upon the
General Counsel 's representation that it was background going to the
allegations of the complaint relating to the increases granted in wages and
insurance benefits , but the Trial Examiner further stated on the record that
he would receive additional evidence on rebuttal from the General Counsel
on this incident if the state of the developed record should render such
evidence appropriate While the record suggests the existence in the
custody of the Charging Party of a tape recording of Callan's utterances
on October 10 to at least one group of employees , neither the General
Counsel nor Respondent undertook to resort to the recording Moreover,
the Respondent undertook no direct refutation of Kelly's testimony. The
testimony of Clarence Mitchell does reveal that in a conversation with
Mitchell in late November M C. Cothran asserted that the employees
were incorrectly characterizing Callan ' s remarks of October 10 as
containing a statement of inability to afford a pay raise for employees
Cothran asserted on this occasion , according to Mitchell 's testimony, that
in the series of speeches that Callan made on October 10 to employees,
Callan stated merely that he would not pay "time and a half "
While I have carefully considered the foregoing none of the
circumstances detailed detract from the accuracy or reliability of Kelly's
testimony which stands directly unrefuted and I credit him
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
progressed literature in opposition to the Union appeared
at the terminal premises.
2. The-alleged unlawful conduct
a. The wage adjustment
(1.) October 1968
Within the week following the October 13 union
meeting, employees Kelly, Elkins, and Mitchell were
informed by their respective supervisors that they would
receive a wage increase of 10 cents per hour retroactive to
October 14. Each testified, in substance, that except for
normal step increases they had in the past been informed
of wage increases through a notice posted on the bulletin
board and not verbally through their supervisors. Each of
these three had reached the top wage level for the dock
worker classification in which he was employed.
M. C. Cothran testified credibly that a decision
emanated from the Waco home office to increase the
maximum of the rate ranges of dock loaders and pickup
and delivery drivers and that as a consequence of this
decision all employees in those two classifications who had
reached the former maximum of their rate ranges, and
those who were otherwise entitled to a step increase
received a 10 cent per hour pay adjustment. Cothran
testified credibly that wage decisions of this variety are
solely within the province of the Waco office and that he
possessed no authority to independently make pay
adjustments of this type.
Cothran also testified credibly that under practice
prevailing at times pertinent herein a new employee in a
dock loader or pickup and- delivery driver classification
progresses in a period of approximately the first 6 months
of his employment through periodic step increases of
approximately 60 days interval from the minimum wage
step in his classification to the maximum . He further
testified credibly that in the years just prior to 1968 there
had been adjustments in the maximum of the two affected
rate ranges . Cothran further credibly testified that while
adjustments in the maximum rate ranges for pickup and
delivery drivers and for dock workers have always been
made simultaneously effective, other general pay
adjustments affecting those two classifications have not
always precisely coincided, although they occur in close
time proximity.
(2.) March 30, 1969
Cothran further credibly testified that, like the decision
with respect to the October wage increase, a decision was
reached in Waco to effectuate a, further increase in the
maximums of the rate wages for pickup and delivery
drivers and for loaders. This decision was made effective
with respect to the employees in those two job
classifications employed at the Irving terminal, and the
effect thereof was to grant a wage increase of 10 cents per
hour to those employees who had reached the maximum
of their rate range and, depending upon the number of
steps remaining to them be fore reaching the maximum, to
grant the full or proportionate amount of the 10 cent
increase to those employees who were due to step
increase . Approximately 475 to 525 employees of the 550
to 600 employees at the Irving terminal received wage
increases on March 30 as a consequence of this wage
action. Some supervisors and management personnel also
received salary increases.
(3.) Recent wage adjustments
Documentary evidence of record which was unrefuted
by the General Counsel reveals that during the month of
October 1968 pickup and delivery drivers at each of
Respondent's 10 No. 1 stations received hourly wage
increases of 10 cents per hour. These became effective in
eight of the terminals, including the Irving terminal, on
October 13, 1968, and in the remaining two terminals on
October 27, 1968.
In a similar manner the evidence reveals that on March
30, 1969, a 10 cent wage increase was granted to pickup
and delivery drivers in five of Respondent's No. 1
stations, including the Irving terminal. With respect to the
other five stations, the same documentary evidence reveals
that hourly wage increases of 10 or 15 cents were granted
at four terminals effective April 27, 1969, and at one
terminal (in the amount of 10 cents per hour) on April 13,
1969.
On the other hand, the same documentary evidence
reveals that on March 17, 1968, a wage increase was
granted pickup and delivery drivers at the Irving terminal
in the amount of 15 cents per hour. This was followed on
March 31, 1968, by wage increases of 15 cents per hour at
five other No. 1 stations, and 10 cents per hour at one
other No. 1 station.4
The evidence of record further reveals that in the spring
months of 1967 wage increases were granted at all 10 of
Respondent's No. I stations. At four terminals, including
the Irving terminal, the effective date of the wage increase
was April 30, 1967, and the amount of the increase was 14
cents per hour. At Waco on April 30, 1967, a wage
increase was granted in the amount of 10 cents per hour.
In like manner, a 10-cent-per-hour increase was put into
effect at San Antonio on March 5, 1967, while at Austin
and Beaumont on May 14, 1967, increases in the amount
of 10 cents per hour and 14 cents per hour, respectively,
were made effective. Earlier on January 22, 1967, a
6-cent-per-hour wage increase had been effectuated at
Wichita Falls while at Sherman on the same day a
10-cent-per-hour wage increase had been granted.
b. Changes in group insurance
During the month of October there was posted on the
bulletin board of the Irving terminal a notice designated
as interoffice correspondence of the Company pertaining
to the subject of the group insurance plan. The notice was
directed to the attention of the No. 1 stations and was
dated October 18. It was identified as emanating from the
Waco office.' In pertinent part the notice read as follows.
Effective with the pay period October 13, 1968, the
company will commence paying all the insurance
premium for our employees under the plan. There will
not be deductions from your next salary check for the
plan.
There will be an increase in the hospital room allowable
and we are negotiating with the insurance company to
determine exactly what the amount will be.
It is going to be very difficult for the company to
absorb all these costs, and we have great faith in our
good people that everyone will do a job that will make
this possible.
'No wage increase was granted this time at San Antonio , Sherman or
Wichita Falls, all of which are No. 1 stations.
'Employee Kelly credibly testified that although the content varied, this
type or format of notice was commonly posted
CENTRAL FREIGHT LINES
Cothran..credibl testified°-that he had no independent
authority to modify tale terms of the group insurance plan
and that all employees system-wide , including those at the
Irving terminal , comprised the insurance group.6
c. Improvement in holidays and vacations
On or about October 15 , there was posted on the
bulletin board at the Irving terminal the following
document identified as interoffice correspondence, dated
October 14 and identified as emanating from the Waco
home office:
Our Board met Saturday, October 12 , 1968, and it
approved our declaring Christmas Eve a holiday. Our
people can expect CC( be off with pay this Christmas
Eve, however , our terniidals will see that we take care
of any perishable freight or any emergency freight so
that we will be fully protected,
In addition , our Board approved decreasing the waiting
period for the second week paid vacation for an
employee from five years to three years. This will
become effective January 1, 1969.
We are glad to make this announcement and I am sure
that it will be appreciated by our fine people.
The testimony of employees Kelly, Elkins , and Mitchell
reveals that in conjunction with informing them of the
wage increases which would accrue to them their
respective supervisors also made reference , in varying
manners , to the pendency of a modification in the holiday
schedule and to changes in other benefits . However, the
testimony , of these employees reveals that supervision was
impercise and unclear - with respect to the details of such
changes.
Subsequently , in late January, there was posted on the
bulletin board at the Irving terminal a further item of
interoffice correspondence emanating from the Wacto
office and dated January 20 , 1969. This correspondence
read in pertinent part as follows:
Yesterday , our Directors voted to give an additional
holiday beginning this year . The day will be Memorial
Day, and it comes on May 30 , and this will be a Friday
which will give a long weekend.
This is an additional expense of something like
$100,000 .00, and it comes at a time when we are badly
in need of a rate increase, therefore, we must do a
better job than we have ever done before , and when we
do that , plus getting a rate increase , things will be in
better shape.
I know that our people will enjoy this additional
holiday.
d. Alleged interrogation, threats , and promises
In the meantime , on October 15, soon after the second
union meeting , Supervisor Doyle Richards approached
employee Robert Fallin at the terminal and informed
Fallin that he was talking to him as a friend and urged
him "to be careful of what [he ] was doing because it
might affect [his] position in the Company. .
Additionally Richards stated to Fallin that those
employees who "are wearing union buttons" would
probably have a "harder time of it " if the union drive
'This latter testimony gains some support from other documentary
evidence of record which also suggests that modifications in the terms of
the insurance program have a group effect and are not limited to a specific
terminal.
917
were successful.
In late October, Fred Duval was called to the office of
M. C. Cothran to speak with Cothran about a shift
change. According to the testimony of Duval, Cothran
commenced the conversation by asserting that he did not
realize how many "unhappy people" there were on the
dock. Cothran thereupon added that he was going to
change the shifts to make them as "close to union shifts"
as possible in order to "get everybody happy." Duval
testified that Cothran asserted that the changed shifts
would be effectuated within 2 or 3 weeks and that the
hour would be reduced from 50 hours per week to 45
hours per week. Cothran stated that there would be no 8
hour shifts and that the shifts would be either 9 hours or
10 hours in duration. Cothran gave Duval his choice of
shifts and Duval selected an early morning shift of 9 hours
duration.
The question of modifying the duration of shifts had
been under consideration by Respondent 's management
for a period in excess of t month prior to the late October
conversation between Cothran and Duval. By late
September detailed consideration was being given to
implementing the shift change but the shortage of
necessary personnel for manning the dock remained an
unresolved problem. The change in shifts was not
accomplished until March 31, 1969. In the meantime, in
his conversation with employee Duval in late October and
his later conversation with employees Mitchell and Elkins
in late November Cothran had stated that the effectuation
of the change was imminent.'
In mid-November, approximately 2 weeks after his
discussion with Cothran concerning the shift change,
Duval spoke with Supervisor Gary Ellis concerning the
grant of an 8-hour shift to the employees. This led to a
discussion of the prospects for successful unionization of
the terminal and Duval asserted that the terminal might
"go Union." Ellis' refuted this asserting, ". . . No, the big
man told me personally that if it went Union that he
would either shut the doors or possibly would sell out
before he would sign a contract."8
During the first week of November Clarence Mitchell
conversed with Weldon Mangham in Mangham's office.
Mangham commenced the conversation by observing that
Mitchell had been employed by the Company a long time
and by stating to Mitchell "back up and get out of this
while you can." Mitchell responded that it made no
differnce because the Union was going to be successful
and that he intended to continue his support of the Union
even if this would mean his discharge. Mangham
responded that he would not be discharged "over this"
'I do not credit so much of the testimony of Fred Duval bearing upon
his late October conversation with Cothran as suggests that Cothran stated
in definite teims that , in effect, he did not want the Union in the terminal
This testimony of Duval's impressed me as being expansive and overdrawn
and out of keeping with the otherwise circumspect statements and attitude
of Cothran on this occasion.
On the other hand , while Cothran denied that he ever established and
announced a specific , definite date for the commencement of the new shift
arrangement, I credit the testimony of Duval, Elkins and Mitchell to the
effect that during his respective conversations with them he held out to
them the viable prospect that the shift change would be accomplished
within a brief period of time. However it is clear that he conditioned this
upon obtaining sufficient manpower.
'I credit Fred Duval with respect to the substance of this conversation
Ellis was equivocal concerning this incident and conceded that it was
possible that he may have made the statement attributed to him by Duval.
Ellis' denial that he had attended any supervisory meeting at which he had
been informed by higher management as to what policy the Company
might pursue to keep the Union out is credited.
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and observed that there was an employee in the office who
had been to every union meeting and had not been
discharged. As the conversation proceeded, Mangham
stated to Mitchell, "Now, Bud, if it goes Union the Union
can't help you no way with your age. You'll get three
letters and you'll get laid off. It can not help you at all."
In the latter part of November employee Clyde Biggins
conversed with Lackey concerning employment of his
brother- in-law - and concerning rumors Biggins had heard
about two employees at the Waco terminal withdrawing
from the Union pursuant to ` alleged company duress.
During the course of this conversation Biggins' support of
the Union became a subject of discussion and Lackey
asked Biggins why he participated in the Union and wore
a union button. Lackey stated that the Union would do
Biggins no good and characterized the Teamsters
adversely. He showed Biggins a newspaper clipping which
was comprised of a picture of a man lying in front of an
entrace to a building with another man standing over him
poised to kick him. Under the picture was the caption
HOFFA REBEL BEATEN. This was followed by the
following textural material:
An unidentified assailant kicks Bernard Jacubus, 45,
outside Teamsters' Hall in Detroit. Jacubus was passing
out literature challenging James Hoffa's slate of
officers. Hoffa was renominated and was opposed by
Andrew Provenzio, unemployed truckdriver. - A P.
Wire Photo.
As the conversation continued Lackey held in his hand
some withdrawal slips. He asked Biggins to sign one and
keep a copy for his own file. Biggins stated that he had
thought of withdrawing from the Union but had not done
so because , in substance , to have done so would have
adversely affected his standing with his fellow employees.'
During the first week of December, employees Kelly
and Elkins engaged in a conversation with Lackey and
Cothran at the terminal. The conversation commenced
when Elkins approached Cothran and asked why he was
not permitted to work overtime. The conversation then
continued on various subjects relating to company
operations and the efforts of the employees to organize
the terminal. It lasted for approximately 35 or 40 minutes.
After Cothran had departed from the group, Kelly and
Elkins began to take their leave when Lackey stated to
them that if they would stop "pushing the Union and start
pushing Central a little more" he might guarantee them a
job for life. In addition, Lackey stated that a "lot of the
Union Committee" had supervisory capability and that
they could go far with the. Company if they would "let off
a little bit." Both Kelly and Elkins were members of the
organizing committee which, as found above, at pertinent
times was composed of from 10 to 12 members.'"
'The foregoing is predicated upon the testimony of Clyde Biggins.
Biggins' testimony contains some ambiguity but it is apparent that prior to
the conversation in question he had approached Lackey concerning
employment for his brother-in-law and was pursuing the matter again in
light of rumors he had heard concerning the Waco withdrawals Lackey
denied having solicited employees to withdraw from the Union but testified
that he had conversed with various employees concerning withdrawing
from the Union. While I credit Lackey to the extent of finding that while
Lackey did not direct the trend of conversation with Biggins concerning the
Union with the specific purpose in mind of urging his withdrawal, I do find
that when the conversation took such a direction as accorded Lackey an
opportunity to broach the subject of withdrawal, he did so in the manner
above found.
"Elkins testified credibly that the Company had earlier been supplied
Fred Duval testified that during the first week of
January 1969, he and employees who were on breaktime
in an office in the terminal were told by Supervisors Gary
Pursel, Charles Crumpley, and Pete Burkley that they had
heard from the "Big Man" that the terminal would not go
union and if it did he would either "shut the doors or sell
out."
Duval further testified that in mid-January Burkley
approached him and said , "I heard that some of the boys
withdrew from the Union." Duval answered that he did
not know and Burkley said, "Yeah, I heard that, didn't
you?"
Duval further testified that during the first week of
January 1969, Gary Ellis stated to him at the terminal
that he had attended a supervisors meeting and that the
"Big Man" had said that if the terminal did go Teamsters
he would not sign a contract.
Crumpley, Pursell and Burkley deny the conduct
attributed to them by Duval. Additionally, Crumpley
denies having ever heard or used the term "Big Man."
Testimony of other witnesses, including Supervisor Phipps
as well as Pursell and Burkley, reveals that the term was
one used at the terminal but that its reference was a
general one denoting someone among management in
authority. Pursell had used the term to apply both to W.
W Callan, Sr , and to Callan, Jr I credit Crumpley's
denial but reject the denials of Pursell and Burkley.
Duval testified that in mid-December during breaktime
he was conversing with fellow employees and Ellis
approached and said, "Do you mean you boys are still
talking about the Teamsters?" When Duval said that they
were Ellis answered that they might as well "forget about
the Teamsters" because the plant would never go
Teamsters. Ellis added, ". . . the men told me and I've
told you before that if it went he would shut the doors or
sell out or would possibly sell out." Ellis added that at the
same meeting it was stated that a contract would "never"
be signed.
Employee James Bruner testified that in March he was
wearing a union button and that Supervisor Kenneth
Phipps approached him at his work and said, "Why don't
you pull that thing off and throw it away." Bruner
laughed and said, "I don't know. I may do that one of
these days."
Bruner testifed also that the following day his
immediate Supervisor Doyle Richards approached him
and with respect to the Teamster button that he was
wearing said, "When are you going to throw that thing
away " Bruner laughed and answered, "I don't know I
may wear it continuously."
Both Phipps and Richards testified that they had
occasion to converse with employees concerning the
wearing of buttons and did so in a light vein. Specifically
Richards testified that he jokingly, on one or more
occasions, asked Bruner when he was going to remove his
button. Both Phipps and Richards testified credibly that
some supervision and some employees wore Central
buttons and Phipps testified that there was some light
hearted banter among employees and himself concerning
the prospects of wearing both a Teamsters and a Central
button side-by-side. Lackey conceded that he discussed the
wearing of Teamsters buttons with some employees.
with a document containing the names of the 10 employees who at that
time comprised the committee He further credibly testified that earlier he
had had a conversation with Lackey in which Lackey revealed his
awareness of Elkins ' membership on the committee
CENTRAL FREIGHT LINES
e. The termination of Robert Fallin
(1.) His union activities and work record
Robert Fallin was employed on the dock at the
Respondent' s Irving terminal from February 11, 1968,
until February 5, 1969. Fallin did not attend either union
organizational meeting but during the course of the
organizational campaign solicited card signatures from
fellow employees at the terminal; wore on his outer
clothing at the terminal both the large and the small
Teamsters button; and was active in circulating union
literature and speaking on behalf of the Union.
In late November Supervisor Kenneth Phipps
approached Fallin in the course of Fallin's work. Phipps
was wearing a button on his shirt bearing the words "I am
a Central man." Fallin was wearing a Teamsters badge
and conversation ensued . Phipps observed that, "It takes a
man to wear my button." Fallin replied that he hoped
Phipps would still be a man after the employees had gone
union. Phipps thereupon asked Fallin why he was in favor
of the Union and Fallin replied that job security was the
principal reason . The conversation terminated on this
note.
In addition to placing union literature on trailers bound
for other company terminals, Fallin also engaged in the
practice of clipping prounion literature on the
intraterminal conveyor that was in use on the dock.
Fallin testified that on or, about November 25, he was
engaged in pulling a cart from one of the conveyors on the
dock, and as he was doing so he would place a piece of
union literature in the cart or otherwise affix it to the
cart. During the shift Mangham approached him.
Mangham said, "Don't you know this is wrong?" Fallin
replied that he knew that the Company did not like the
literature but that the did not know that he was not
allowed to do what he was doing. Mangham stated that it
was wrong and .that he did not want this to happen again.
Mangham then directed Fallin to cease work for the
balance of the shift and to speak with Cothran before
commencing work the next day. Fallin's shift would have
terminated on November- 25 at 11 p.m. He received his
instructions from Mangham to leave at 10:45 p.m."
The following morning , as instructed, Fallin spoke with
Cothran who stated that in trying to distribute the union
literature on the dock Fallin was taking a wrong attitude.
Cothran stated that he did not want the literature on the
dock and that he was endeavoring to get rid of it. Cothran
informed Fallin that he felt that he was not doing "all
that be could,do at the time" to perform a good job and
that his supervision had spoken to him concerning the fact
that he was "doing things other than what he was
supposed to do while he was on the clock." Cothran asked
Fallin not to do these things anymore. In this connection,
Cothran instructed him to perform only the duties that he
was supposed to do and that he had been taught to do. He
further informed Fallin that if he again came up to the
office for the same reason he would be terminated.-
"The foregoing is based principally upon the credited testimony of
Robert Fallin. I have considered also the testimony of Weldon Mangham
and credit it only to the extent it is consistent with that of Fallin
Specifically , Mangham did not testify to sending Fallin home early and
instructing him to speak to Cothran , although documents in evidence
which Manhgam conceded were interrelated tend strongly to substantiate
Fallin's testimony
'2The foregoing is based on a composite of the testimony of Robert
Fallin and M . C. Cothran I do not credit so much of Cothran's testimony
as suggests that on a second occasion in late January or early February
919
Fallin testified that he had not previously been
informed that it was against company rules to disseminate
literature on the intraterminal carts. He conceded that
supervision had indicated that all literature was proscribed
both pro and antiunion He testified further that, in
effect, he had earlier, during the national campaign of
1968, observed a "Go Nixon" slogan posted to the carts;
and he further testified that he himself would write the
numerals "745" on carts. Prior to Mangham's interjection
Fallin had never been reprimanded."
However, Fallin testified that he personally observed
piles of literature at the terminal and some stacked on tow
motors at the terminal. He further testified that during
shift changes he saw "literature scattered around ... that
the prior shift had left apparently for [his] shift to look
at." He conceded that on occasions at change of shift
there was "a lot" of literature on the floor of the tunnel
entry to the docks and that this included both literature
favoring and opposing the Union.
An example of the literature formulated by the
organizing committee and distributed by the union
proponents is the following flyer:
COMPARE
TEAMSTERS CENTRAL
SALARY - $3.76
TIME & 1/2OVER 8 HRS.
RETIREMENT - FREE
PAID WEEKLY
VACATION-
ANYTIME
DENTAL WORK-FREE
GLASSES-FREE
INSURANCE - FREE
RETIREMENT AGE -
57
HOLIDAYS - 7
(SALARY AND
BENEFITS AMOUNT
TO $5.26 PER HR.)
TRUCK SERVICE -
NONE
SALARY - $3.60
STRAIGHT TIME
RETIREMENT $10
M o.
PAID EVERY 2
WEEKS
VACATION - BY
SENIORITY
DENTAL - NONE
GLASSES - NONE
INSURANCE -
$11.81
RETIREMENT AGE
- 65
HOLIDAYS 5
(SALARY AND
BENEFITS AMOUNT
TO ?9? PER HOUR)
TRUCK SERVICE -
SOME
Mangham dispatched Fallin to Cothran's office for a similar offense and a
similar conversation again took place Neither Mangham nor Fallin
testified to such an incident and I am convinced Cothran testified in error
in this regard This error arose, I am convinced, from the liklihood that, as
presently found, the conversation which Mangham had in early February
or late January with Fallin was reported to Cothran and Cothran and
Mangham conversed concerning it There is no independent evidence
suggesting that Fallin was called again to Cothran's office until the day of
his discharge
The testimony of Fallin indicates that in rather strong terms Cothran
referred to the union literature as "trash " Whatever Cothran's description
was, it is clear that he in specific terms admonished Fallin not to distribute
the literature on the dock. As will presently be found, the campaign
literature which emanated from both sides was abundant and the Company
had endeavored to limit the dissemination both of pro and antiunion
literature
"The Respondent proffered no evidence designed to establish the
existence or promulgation of any definitive policy concerning circulation of
literature or any specific, prior reprimand of Fallin The "no circulation"
policy is not alleged as violative of the Act
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NOTE
When Teamster is trying to organize Central will give
raise and promises , then after about two years everyone
is ready for Teamster again.
NOTE
Stockholders will earn more on 1 1/2 time and benefits
then stock will pay.
NOTE
All paid on retirement will be returned.
IN DALLAS the only one who is scared is W. W.
Callan. We stood up to him.
The foregoing is followed on the flyer by the words
"Go Teamsters. Dallas is all signed up. How about you?"
encircled in the bottom quarter of the flyer.
In the meantime, on November 25, supporters of the
Union , including Fallin , had commenced the practice of
prefacing with the term "745" - the designation of the
Teamster local - their normal verbal page over the
intraterminal public address system which was utilized for
summonsing forklifts and other loading equipment. On
November 25 Phipps approached Fallin and asked Fallin
why he was paging in this manner. Phipps further stated
that the public address system was not to be used in the
manner in which Fallin was using it.
Approximately a week prior to his February 5
discharge Fallin conversed with Mangham when
Mangham approached Fallin at his place of work. Fallin
at that point in time was loading trailers designated for
the Corpus Christi area. Mangham informed Fallin that
entirely too much literature was being received from the
Corpus Christi area and that he wanted it stopped and
that he did not want any more literature dispensed to
Corpus Christi. Fallin protested that he was not in his
trailer at all times and, in effect, asserted that he was not
entirely responsible for this matter. Mangham reiterated
that he did not want any literature in the Corpus Christi
bound trailers. Thereafter followed a conversation between
Fallin and Mangham wherein the merits of the Union
were discussed. Fallin asserted his support of the Union.
Mangham credibly testified that in January 1969,
pursuant to conversations with Phipps concerning Fallin's
failure to perform his work he and Hughett spoke with
Cothran concerning Fallin. Mangham recommended to
Cothran that he discharge Fallin.
(2.) The discharge incident
On February 5 Robert Fallin was terminated.
Approximately a week prior thereto it had become
necessary for Fallin to leave work by reason of a physical
incapacity and thereafter was under the care of the
company physician. Upon reporting to work on February
5 and punching in, Fallin was instructed by a supervisor to
report to the office of M. C. Cothran. He did so.
When Fallin reported to Cothran's office Cothran was
seated at his desk studying material in Fallin's personnel
file. After a brief interlude Cothran spoke to Fallin
stating , in substance , that he had been receiving entirely
too many complaints from supervision and that he was
not showing initiative nor was he performing his duties in
the manner expected and as he had been instructed to do.
Cothran asserted that he had received complaints from
supervision on the dock which ranged from the lowest
echelon of supervision to the highest. Cothran then
proceded to discuss specifically incidents involving Fallin
recorded on 14 separate slips contained in Fallin's
personnel file. The slips were those completed by Fallin's
supervisors Ellis and Phipps and by Mangham, Hughett,
and Cothran himself. They were of the type routinely filed
under Respondent' s personnel procedures by supervisors.
They were, under these procedures, retained in the
employees' personnel file.- As each slip was discussed
Fallin endeavored to offer his explanation of the incident
and the circumstances pertaining thereto. As they
proceded through a consideration of the various entries
Fallin protested that the slips provided a "one sided
picture" and requested that the supervisors who completed
the slips be called to the office to discuss the matter in an
effort to obtain "the whole picture." Cothran declined
asserting that this would not be necessary. After each slip
had been discussed Cothran informed Fallin that he was
being terminated.15
Fallin was employed at a beginning wage rate of $2.75
per hour and during his employment received three step
increases . At the time of his discharge he was paid at the
rate of $3.60 per hour. Fallin testified that during the
course of his employment he received several compliments
concerning his work from his supervisor, Bob Reynolds,
and that these were received in the latter part of
Reynolds' term of employment which ended in July or
August 1968. On the other hand, Fallin conceded that on
several occasions Phipps spoke to him critically, albeit in
a friendly manner , concerning Fallin's job performance.
Ellis testified that he was Fallin's supervisor during the
first few months of Fallin's employment. He testified
further that new men were usually assigned to him and
that in the event he notes deficiencies in their work
performance of a type which would place in question their
further retention the employee is transferred to different
supervision to determine whether the deficiency is
attributable to incompatibality between the worker and
the supervision initially given him. Ellis testified that this
course was followed with respect to Fallin.
During the first 3 months of Fallin's employment at
which time he worked under the supervision of Ellis, Ellis
spoke with Fallin twice informing him that his production
was not satisfactory. On the initial occasion Ellis inquired
if Fallin desired to be placed "back with the break-in
men" for the purpose of learning more about the work.
Fallin assured Ellis that he would endeavor to improve his
work. However, Ellis noted no improvement and spoke to
Fallin approximately 3 weeks later suggesting the same
possible course of action. Thereafter, Ellis spoke with
Mangham, his immediate superior, and suggested to
Mangham that Fallin be assigned to different supervision.
This suggestion was proffered during the month of April
1968. Fallin thereafter was transferred to different
"The existence of this policy and practice on the part of Respondent
with respect to all employees was convincingly established by record
testimony Moreover Ellis, Phipps, Mangham , and Cothran testified that
of their own knowledge the incidents had occurred Fallin substantiated
this although he contested the accuracy of the recountings contained in the
individual slips. In the circumstances, I find that the slips were completed
and submitted by Ellis, Phipps, Hughett, Mangham, and Cothran at a time
reasonably contemporaneous to the events which they describe.
"The foregoing is predicated upon a composite of the credited testimony
of Robert Fallin and M C Cothran The testimony of Fallin is more
explicit with respect to the details of the conference but the testimony of
the witnesses concerning the essentials of the conference is consistent one
with the other.
CENTRAL FREIGHT LINES
supervision . 16 Fallin ' s personnel file contained three slips
signed by Ellis dated, respectively, March 8, March 26
and July 24, 1968, all of which related to the manner in
which he performed his work."
Phipps testified that Fallin worked under his
supervision during the last 5 months of Fallin's
employment. He testified that while Fallin was working
under his supervision in the area of the dock over which
he had supervisory responsibility he had occasion to speak
with Fallin concerning his work many times. Phipps
testified that these conversations were necessitated by
Fallin's failure to perform his duties or by his absence
from his assigned duty area. In addition to these
conversations, Phipps testified also that he had occasion
to speak with Fallin concerning Fallin's dispatch of union
literature during the course of his performance of his work
duties. Phipps testified to two separate incidents when he
found union literature in trailers being loaded by Fallin
and testified further that on the first occasion he informed
Fallin that he was not to place literature on the trucks or
carts or to distribute it otherwise on worktime. Phipps
informed Fallin that if he desired to do so on his own
time that was his prerogative but he could not do it on
worktime.
Fallin's personnel file contained seven slips signed by
Phipps and dated respectively November 1, 19, and 25;
December 31; January 13 and 30. One slip concerned
Fallin's use of the numerals "745" as a prefatory
reference in, his use of the public address system for
pageing forklifts and the others related to the manner in
which Fallin performed his assigned tasks or to his
dilatory habits in failing ^o perform them.
Mangham testified that during the course of Fallin's
employment he had occasion to speak to him four or five
times concerning his work. During the early portion of
Fallin's employment on two or three occasions Mangham
spoke to him and informed him that his supervisors were
not satisfied with his production and urged him to
increase the rate of his production.
On the other hand Fallin testified that the last
supervisor under whom he worked prior to his discharge
was Doyle Richards. He worked under the supervision of
Richards for approximately I month. Fallin's personnel
file contained no adverse reports emanating from
Richards and Richards testified to no deficiencies on
Fallins' part.
Cothran testified that he conversed on more than one
occasion with Phipps concerning Fallin's work and that
Fallin's distribution of union literature was a subject of
one of their earlier conversations in November.18
Cothran testified that he chastized other employees,
including Kelly and , Elkins , for distributing union
literature and had done likewise to employees distributing
antiunion literature. He could not recall the identity of
employees in the latter category.
"The identity of the new supervisor is not established in the record but
the record does reveal that during the fall months of 1968 Fallin worked
under the supervision of Doyle Richards and Ellis credibly testified that
after April 1968, Fallin came under his supervision only for brief periods
of time incident to special assignments.
"Fallin could recall only one occasion in March but he conceded that
Ellis may have spoken to him twice in March concerning his work Ellis
testified convincingly concerning this and I credit him.
"Phipps testified that he conversed with Cothran concerning Fallin's
work on two occasions.
Conclusions
921
The evidence of record reveals that at the outset of the
Union's organizational effort at the Irving terminal, the
Respondent undertook dissuasive efforts by convening
employees in groups to hear remarks of its principal
official and founder C. C. Callan, Sr. There can be no
doubt concerning Respondent's knowledge of the renewed
efforts of employees to organize the terminal, for the
substance of Callan's remarks reveals his awareness.
Callan sought by his comments, at least to one group of
assembled employees, to discount the prospects of
improved wage remuneration and the subsequent
organizational efforts of the employees proceeded against
this background.
In close time relationship to Callan's remarks,
supervisors at the Irving terminal gave currency to the
pronouncement that a retroactive wage increase was
pending, and it is a required inference that a reasonably
contemporaneous prior wage decision on the part of Waco
management had served as a predicate for these
announcements of supervision. The wage increases became
retroactively effective from October 13. This betterment in
wages was accompanied within the telescoped time period
of 4 or 5 days by improvements in the health insurance
benefits, liberalization of the vacation plan and the grant
of additional paid holidays. An additional paid holiday
was announced some 10 weeks later, in January 1969, and
by March 30 another pay increase was effectuated and a
change in shift schedules desired by the employees was
wrought. The foregoing transpired in the context of acts
of interference and instances of threats which, as presently
recounted, I find to have violated Section 8(a)(1) of the
Act.
The grant of wage and other benefits to employees is
not precluded during an organizational compaign and
benefits which have been decided upon prior to the
beginning of an organizational effort may be placed in
effect during the campaign without violating the Act so
long as the purpose for so doing is not to influence
employees in the choice of their bargaining representative.
" In a similar manner benefits which accrue pursuant to a
predetermined schedule do not violate the statute merely
because they coincide with employee organizational
efforts.- But Section 8(a)(1) of the Act "prohibits not
only intrusive threats and promises but also conduct
immediately favorable to employees which is undertaken
with the expressed purpose of impinging upon their
freedom of choice for or against unionization and is
reasonably calculated to have that effect." 11 The
employer's motive is critical to the relevant determination
and must be determined from the "total stream of
proceeding and subsequent as well as concurrent
circumstances."22
In explanation of the grant of wage, insurance, holiday
and vacation benefits in October, the Respondent
contends, in effect, that, whereas the organizational efforts
of the Union were limited to the Irving terminal, the grant
was decided upon by authority at the Waco home office
without consultation with or the interposition of Irving
"See Derby Coal & Oil Company , Inc, etc , 139 NLRB 1484, 1486,
Gary Steel Products Corporation , 144 NLRB 1160, 1165; N.L.R.B. v
Douglas & Lomason Co., 33 F 2d 510 (C.A. 8)
"See Briggs IGA Foodliner 146 NLRB 443, T L Lay Packing
Company 152 NLRB 342.
"N.L R.B. v. Exchange Parts Company, 375 U.S 405, 409
"See N. L R.B. v . Harbison-Fischer Manufacturing Co. 304 F 2d 738,
739-740 (C.A 5).
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terminal management; was system-wide and was, in
salient aspects, consistent with procedures followed in the
grant of similar benefits in the proceding years. The tacit
inference of these contentions is that union organizational
considerations played no role in the decision to grant the
-benefits. The record does not entirely support the
Respondent. The Respondent is quite correct in asserting
that the Waco home office was the locus of the decisions
and that, in a general sense, the benefits were made
effective systemwide. Moreover, there is convincing
evidence that there had emerged a pattern of granting
wage adjustments in the spring and fall months of the
year and that there was a close correlation in the effective
dates of these adjustments as between No. 1 stations
Specifically, at the Irving terminal in both 1967 and 1968
wage adjustements had been effectuated in the spring,
although in April of one year and in March of the next.
These adjustments had correlated closely in timing and in
amount to wage adjustements granted in other No. I
stations. Moreover, the evidence supports the
Respondent's contention that in announcing and effecting
changes in the insurance program as well as in vacation
and holiday benefits there was precedent involving practice
followed 4 years earlier for the procedures followed in
announcing and effectuating the instant benefits. But these
considerations, however, accord only a myopic view which
changes upon closer analysis of record facts.
Initially, while at the outset in October the
organizational efforts were centered at the Irving terminal,
it is to be noted that, as Callan commented to employees
on October 10, prior union efforts to organize Respondent
had been undertaken and had failed, and the liklihood
that the Union's renewed efforts would spread to other
terminals was, at that point in time, as viewed from the
vantage point of management, both foreseeable and
immediate. Secondly, it is to be observed that the
Respondent adduced no evidence to support the
contention that the benefits granted had been decided
upon prior to the commencement of the Union's efforts at
the Irving terminal. The October 14 bulletin announcing
the grant of Christmas Eve as a paid holiday discloses
that the decision was reached at a board of directors
meeting on October 12 and there is no evidence of record
to suggest that the other benefits had been decided upon
at any earlier date. 23 Further, the fair inference of record
is that in his speeches to employees on October 10, W. W.
Callan, Sr., adverted to no plan embracing contemplated
improvements in benefits. Moreover, at least to one group
of employees, he specifically negatived any intention to
increase wages. In this state of the record, the
determination is warranted that the decision to increase
and improve benefits was reached only after the renewal
of union efforts to organize Respondent. The record as a
whole convinces me that these efforts motivated
Respondent in the grant of the benefit package.
In consideration of the foregoing, and as no election
had been scheduled and the organizational campaign was
in its early stages, it is sufficient to find that nothing in
the statute precluded Respondent from granting a fall
wage adjustment to employees following in the process
what appears to have become an emerging practice of
granting wage adjustments in this season of the year
However, the evidence of record requires the finding,
which I make, that Respondent moved immediately in
23The extent , if any, to which W. W Lackey, Irving terminal manager
and a member of the board of directors , may have participated in this and
related benefit determinations is not disclosed
expedited fashion to grant a wage adjustment as part of a
coordinated plan to better employees' benefits for the
principal purpose of forestalling unionization. Thus, the
evidence reveals that within a period of 3 or 4 days
immediately following the overt efforts of employees to
organize, Respondent held out to employees the
allurement of benefits calculated to wean them from the
Union. The evidence reveals no precedent for such a
benefit package and the Respondent offered no
explanation based upon legitimate personnel or business
considerations to refute the strong inference resulting from
the General Counsel's evidence that union considerations
formed the basis for the action. Whether the statute would
permit the Respondent to have instituted these benefits as
countermeasures to union propaganda trumpeting the
superiority of union benefits as compared with those
presently enjoyed by employees the Union was seeking to
organize, is a question which need not here be answered
for the evidence suggests that when Respondent acted in
instituting the benefits herein the Union's campaign of
circularizing employees had not yet gotten underway.
Upon these considerations the General Counsel is quite
correct in his view that this case falls within the scope of
the observation of the U. S. Supreme Court in N.L.R B.
v. Exchange Parts Company: supra- "The danger inherent
in well-timed increases in benefits is the suggestion of a
fist inside the velvet glove. Employees are not likely to
miss the inference that the source of benefits now
conferred is also the source from which future benefits
must flow and which may dry up if it is not obliged."
Consistent with this concept, I find that Respondent
violated the Act by granting improvements in the
insurance program, announcing improvements in the
vacation plan and Christmas Eve as a paid holiday all
within a capsuled time period, and, to coordinate with
these announcements, accelerating the grant of a fall wage
adjustment.
On the other hand, despite the close relationship
between March 30 wage action and the effectuation of a
new shift arrangement which employees had long been
seeking and had been anticipating, I am unable to find
upon the evidence of record that the Respondent violated
the Act by instituting these improvements. With respect to
the change of shifts, the evidence is convincing that for a
substantial period of time, including a period which
preceded the employees' organizational efforts,
management had been giving consideration to shift
modifications. The impediment to accomplishing this was
the lack of sufficient personnel. As I view the evidence the
allusion of Cothran during this late October interview with
Duval to the prospective shift modification, contemplated
and in the process of change prior to the advent of the
Union, was legitimate comment and did not violate the
Act; and the evidence with respect to the other interviews
conducted by Cothran with employees concerning the
prospective changes is not of so substantial in nature as to
warrant the conclusion that Cothran held the shift change
out as an inducement to employees to forego unionization.
Nor do I find that the interviews were conducted for other
than essential administrative and personnel purposes.
Similarly, with respect to the wage increase granted on
March 30, I find insufficient evidence of record to warrant
the conclusion that Respondent was doing other than
following its practice of granting spring wage adjustments;
or that the wage increase of March 30, was accelerated
for antiunion purposes. The evidence suggests that by the
spring of 1969 the organizational efforts of the employees
was ebbing and there existed no apparent need for
CENTRAL FREIGHT LINES 923
Respondent to accelerate its institution or do otherwise
than grant the increase in due course.
I find, therefore, that the General Counsel failed to
sustain the allegations of the complaint relating to the
institution of shift changes or the grant of the March 30
wage increase.
However, I view differently the evidence pertaining to
the January 20, 1969, announcement pertaining to
Memorial Day as an additional holiday. There is nothing
of record to suggest that prior to the advent of the Union
consideration had been given by the board of directors to
making Memorial Day a paid holiday, and this
announcement came well in advance of the Memorial Day
holiday, only 3 weeks after the reduced waiting period for
vacations had become effective and only a month after the
employees had enjoyed for the first time Christmas Eve as
a holiday. I accordingly find that the record requires a
finding that this announcement was part of the
coordinated effort undertaken by Respondent to defeat the
Union and the grant of this benefit was an integral part
thereof.
As further elements of this coordinated plan to
influence the employees' choice of a bargaining
representative, I find violative of the Act the statement of
Doyle Richards to Robert Fallin on October 15
concerning the "harder time" that Respondent would in
probability visit upon employees who had supported an
unsuccessful union effort; and also find violated the
statement of Mangham to employee Mitchell in early
November wherein Mangham urged Mitchell to "back
up" from his involvement in the Union upon the implicit
threat he would be discharged for his support of the
Union, although the discharge would be made to appear
ostensibly for cause.
Further, I find to constitute a threat violative of
Section 8(a)(1) of the Act the statement of Ellis to Duval
in mid - November and again in mid -December to the
effect that he had been told by "the big man" that the
terminal would shut down or be sold if the Union were
successful; and the similar statements of Supervisors
Pursell and Burkley in early January. In like vein, Ellis'
statement during these conversations to the effect that no
contract with the Union would be signed in the event the
Union was successful also constituted a threat. I am
convinced upon the evidence of record that the term "big
man" was one commonly used at the terminal to have
reference to management , and the use of the term in the
contexts in which it was used in the aforesaid
conversations carried with it the inference of requisite
authority residing in the individual to whom the term had
reference.
Additionally, I find unlawful under Section 8(a)(1) of
the Act the implied promise of benefit emanating from
Lackey and directed to employee Elkins and Kelly that if
they and other employees constituting the union
committee would "let off a little bit" and stop "pushing
the Union and start pushing Central a little more" they
might realize supervisory aspirations and have long tenure
with the Company.
Also violative of Section 8(a)(1) of the Act was
Lackey's effort in late November to induce Biggins to
withdraw from the Union.
On the other hand , I do not interpret as an inducement
to withdraw from the Union the encounter of employee
Bruner with Supervisors Phipps and Richards wherein in
an attitude of banter the supervisors spoke with Bruner
about his union badge. The references to his removal of
the badge were uttered in essentially jocular context and
the statements were accompanied by no implicit threat or
reward Nor was Burkley's comment to Duval in
mid-January concerning rumored withdrawals from the
Union violative of the Act
Moreover, I am unable to conclude that the evidence of
the General Counsel preponderates in favor of finding that
the discharge of Robert Fallen was discriminatory within
the meaning of Section 8(a)(3) of the Act. To be certain,
Fallin's support of the Union was well known to
supervision and he had been active in transmitting by
means unacceptable to supervision literature favoring the
Union. In contradistinction Fallen was shown to be an
employee somewhat lacking in initiative and without any
discernible zest for his work tasks. In this latter regard,
early supervision had found Fallen deficient in productivity
and mastery of the work skills required of him, and prior
to the advent of the Union four separate entries to this
effect had been entered in his personnel file and he had
been transferred to different supervision in an effort to
improve his work performance. For a 3-month period no
adverse entries were placed in Fallin's personnel file but
Ellis who had opportunity to observe him could note no
improvement in his general work performace. Then in
November Phipps reported twice adversely concerning
Fallin's work and Mangham filed an unfavorable report.
During the ensuing 3 months leading to Fallin's discharge
Phipps filed four more reports relating solely to Fallin's
work performance and spoke to Fallin on several
occasions. Phipps formed the conclusion that Fallin's
work was so unsatisfactory as to warrant termination.
Mangham concurred and spoke to Cothran who
terminated Fallen. There is no record of evidence to
suggest that either Mangham or Cothran, who reached the
ultimate determination to terminate Fallin, harbored any
specific animosity toward Fallin and the record is clear
that they had dealt evenhandedly with Fallin concerning
his propensity to circulate union literature in direct
defiance of the Company's directives. Although Fallin had
been called to account for this conduct he was not the
only employee so engaged and so reprimanded, and the
amount of literature disseminated was not so small as to
warrant the assumption that Respondent expected by
terminating Fallen to stop its flow. Rather, the inference is
to the contrary and the termination of Fallin could be
expected to only diminish to a degree its circulation,
without any significant assist to the asserted objective of
terminating it entirely.
There can be little doubt upon this record that Fallin, a
young, sensitive man who impressed me as not entirely
from the mold of his fellow workers, had accorded
Respondent grounds for terminating him. The General
Counsel points strongly to the fact that after the union
campaign began and Fallin commenced his pageing and
distribution efforts on behalf of the Union the entries in
his personnel file became more numerous. The testimony
of Phipps which I have carefully evaluated gives little
support to the thesis that his admonitions to Fallin and his
reports critical of Fallin's work performance were feigned
or other than objective. Rather, the conclusion required
and which I make is that Phipps who had frequent
opportunity to observe Fallin's work found, upon frequent
objective evaluation, that it was repeatedly and recurringly
unsatisfactory. Salient also to an evaluation of Fallin's
work performance is Fallin's testimony itself which
concedes the occurrence of the various incidents recorded
against him but which gives them a different gloss or
emphasis without significantly changing the fact that they
were departures from acceptable work performance. Upon
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
my study of Fallin's explanations, contrasted to those of
supervision of the same episodes, I am convinced that it
was he who sought to rationalize events favorably to his
position rather than the converse. A fair analysis of
Fallin's testimony also despells the notion advanced by the
General Counsel that the adverse reports were in some
manner sullied because they were placed in Fallin's file
without his knowledge. This was consistent with
Respondent's established practice which is not an entirely
novel personnel procedure.
While the General Counsel emphasizes that Fallin
received wage increases these were routine step increases
and across-the-board adjustments and like the work
compliments he received during the middle term of his
employment hardly serve to counteract the strong evidence
showing justification for discharge.
In light of the strong justification and in the absence of
convincing evidence demonstrating that Respondent's
antiunion objectives would be effecively served by the
termination of one union activist from a work
complement of nearly 600 1 find that the evidence of the
General Counsel does not preponderate in favor of finding
a violation of Section 8(a)(3) of the Act flowing from the
discharge of Robert Fallin and I shall recommend that the
allegation of the complaint pertaining thereto be
dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate , and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and
conclusions and upon the entire record in this case, I
make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Southern Conference of Teamsters affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a laobr
organization within the meaning of Section 2(5) of the
Act.
3. By accelerating a general wage adjustment for
employees and making it effective on October 13, 1968;
by granting improvements in health insurance benefits; by
liberalizing its vacation plan and by granting additional
paid holidays to employees the Respondent interfered
with, restrained. and coerced employees in the exercise of
rights guaranteed them in Section 7 and thereby violated
Section 8(a)(1) of the Act.
4. By threatening employees with more onerous
working conditions and ultimate discharge for supporting
the Union; by threatening that the terminal would be shut
down or sold if the Union were successful in its
organizational efforts; by threatening to refuse to sign a
collective-bargaining agreement in the event the Union
were successful ; and by unlawfully seeking through
promises of job promotions and increased job tenure
through threat of discharge to induce employees to
withdraw from the Union the Respondent further violated
Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
6. Respondent did not violate the Act by terminating
Robert Fallin.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case,
I recommend that Central Freight Lines, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership of any employee in
Southern Conference of Teamsters, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other
labor organization of their own choosing, by accelerating
the grant of a wage adjustment to employees and by
granting improvements in the employee health insurance
benefits and liberalizing the employee vacation plan and
by announcing and granting additional paid holidays.
(b) Threatening employees with more onerous working
conditions and discharge in the event the Union is
successful in organizing the employees; threatening to
close the terminal if the Union is successful in its
organizational efforts; threatening to refuse to sign a
collective-bargaining agreement with the Union in the
event it is successful in its efforts; threatening to discharge
employees or promising them promotions and increased
job tenure as an inducement to withdraw from the Union.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the right to
self-organization, to form their own labor organization, to
join or assist the Union, or any other labor organization,
to bargain collectively with representatives of their own
choosing, and to engage in concerted activities for the
purpose of collective bargaining or for other mutual aid or
protection, or to refrain from any or all such activities
except to the extent that such right may be affected by an
agreement requiring membership in a labor organization
as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Post at its Dallas, Texas, terminal and place of
business and at all other places of business at the Irving
terminal where notices to employees are customarily
posted, copies of the notice attached hereto and marked
Appendix.3° Copies of the notice to be furnished by the
Regional Director of Region 16, after being duly signed
by a representative of the Respondent, be posted
immediately upon receipt thereof and be maintained by it
"in the event 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 the 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 "
CENTRAL FREIGHT LINES 925
for 60 consecutive days thereafter , in conspicuous places,
including all places at the Irving terminal where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondnet to ensure that said notices are
not altered, defaced, or covered by any other material.
(b) Notify the - Regional Director for Region 16, in
writing, within 20 days of the receipt of this Decision,
what steps have been taken to comply herewith.'-'
"In the event that 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 this Order , what steps Respondent
has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT -accelerate the grant of general wage
adjustments to our employees for the purpose of
discouraging their selection of or membership in
Southern Conference of Teamsters Affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other
labor organization, or for the same or related purpose
grant improvements in our health insurance program
for employees, improve vacation benefits for employees
or announce and grant paid holidays to our employees.
WE WILL NOT threaten employees with more difficult
work tasks, or discharge for supporting the Southern
Conference of Teamsters Affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor
organization; through threat of discharge or promise of
promotion or longer job tenure seek to induce
employees to withdraw from Southern Conference of
Teamsters, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America; threaten our employees with the sale or
shutdown of the terminal in the event the Union is
successful in organizing our employees; or threaten our
employees with refusing to sign a collective bargaining
agreement with the Union in the event it does organize
the employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights to self-organization, to form, join, or assist
the above-named labor organization, or any other labor
organization, to bargain collectively through
representatives of their own choosing, to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
All our employees are free to become, remain, or
refrain from becoming or remaining members of the
above-named labor organization or any other labor
organization.
Dated By
CENTRAL FREIGHT LINES,
INC.
(Employer)
(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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 8A24 Federal
Office Building, 819 Taylor Street, Fort Worth, Texas
76102, Telephone 817-334-2941.